Queensland local government elections might be more important than you think.
After some delays in vote counting, Queensland local government election figures are coming through, Labor is on the back foot in the Brisbane City Council. This is all the more important because of the wider range of powers that Queensland local governments possess than those in other states.
The Brisbane City Council election is the most partisan local government election in the state, with only one of the current 26 council seats being held by an independent, Nicole Johnston.
Likewise, the Brisbane Lord Mayor election is the most partisan mayoral election in the state.
Click HERE to see the political party memberships of every candidate in the 2024 Queensland local and mayoral elections
The City of Brisbane is the most populous local government in the country, with control over more people than any other capital city local governments, which only control the inner city area.
The City of Brisbane’s size and powers are the result of an amalgamation process done between 2007 and 2009, which merged many smaller councils throughout the state. Likewise, many regional and rural councils were merged into the council of the dominant city in the region.
This makes governing much more streamlined, which is important, as Queensland councils have greater powers that would be much harder to wield if smaller councils had to coordinate amongst themselves.
The amalgamation process led to the creation of the Local Government Act 2009 (Qld), with the City of Brisbane being granted specific legislation the following year, with the City of Brisbane Act 2010 (Qld).
Premier Peter Beattie, who began the process of amalgamation in 2007, and Premier Anna Bligh, who finished it, were taken to court on the basis that the amalgamation was a form of “disenfranchisement,” because a person was no longer able to vote in a local government that had been amalgamated into a bigger body.
The case was thrown out in Barton v Beattie [2010], where Justice of Appeal Fraser of Queensland Court of Appeal rejected a human rights complaint:
“It is drawing far too long a bow to suggest that the re-arrangement of local government boundaries … some way infringed those electors’ human rights … [and there is no rational connection between [them].”
Queensland’s local governments have similar law-making capabilities as the state government.
As local governments fall under the jurisdiction of Queensland, their powers cannot exceed those of the Queensland government. And, just as Section 109 of the Australian Constitution says that Commonwealth laws will trump Queensland laws, Section 27 of the LGA 2009 (Qld) enforces the same relationship between Queensland and the local governments.
Check out Common(wealth) Knowledge #62 for more on this relationship.
Even if a local government law doesn’t violate Queensland legislation, Section 29A requires all local governments to confer with the Queensland government and any public entities whose interests might be affected by the law.
Similarly, in BCC v Leahy [2023], Justice of Appeal Flanagan said that common law principles like due process, procedural fairness, and natural justice, will apply unless expressly exempted or are otherwise inapplicable.
Beyond that, the Queensland government can grant local governments the power to make ‘local laws’ on certain topics and prohibit them from passing local laws on others. For example, Section 38AA prohibits local governments from making swimming pool safety laws, reserving that for the Queensland government’s exclusive control.
However, these local laws are not the ‘by-laws’ of other states.
The local law system replaced them under the LGA 2009 (Qld) reforms. There are two relevant types of laws under Section 28, which mirrors Queensland’s own law-making system.
The first of these is a normal ‘local law.’ This is the local government version of primary legislation.
‘Subordinate local laws’ are the equivalent of secondary/subordinate legislation. They do not exist in other systems, like New South Wales and Victoria. They serve as ‘regulations.’
A local law, subject to community consultation, will provide the law's general principles, powers, and objectives. Subordinate local laws complement this by outlining regulations on how to carry out the local laws, and are more likely to change than the local law itself. This is thanks, in part, to an exemption from the Section 29A state interest check.
It parallels the relationship between the LGA 2009 (Qld) and the Local Government Regulation 2012 (Qld).
Section 26(6) makes it clear that, in the event of an inconsistency between a local law and a subordinate local law, the local law will prevail.
This arrangement, unlike the ‘by-law’ states, grants these local governments much greater power, broadening both the scope and depth of their law-making capacity.
This is especially true in Brisbane, where replacing 20 local governments with 1 big local government makes things like operating ferries and other cross-river operations much easier, and that is why it receives its own specific legislation.
The Brisbane City Council sits in between the state and local levels of government. It has greater powers, needs, and a much larger population. This greater importance is why parties, not independents, dominate council and mayoral positions.
Yet it still receives its law-making capacity from the Queensland government by legislation, not a constitution, and so is subject to change.
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