A note to the reader before you begin

Before you read this article, try something. Go to the website of your State or Territory’s local government legislation – it is publicly available and free to search. In Western Australia it is the Local Government Act 1995. In Queensland, the Local Government Act 2009. In Victoria, the Local Government Act 2020. Every State and Territory has one.

Use the search function and look for every instance of the words govern, governing, governance, and government throughout the document.

What you will find is this. Every single time the word “government” appears in the body of the legislation, it appears in one of three ways: as part of the Act’s own title, at the beginning of a sentence where capitalisation is simply a grammatical rule, or as part of a reference to the State Government or the Commonwealth Government – the actual governments. When the Act refers to the councils themselves, it uses governing as a verb or an adjective. It describes what the bodies do. It never uses Government as a noun to describe what they are.

That single observation – available to anyone with an internet connection and five minutes – is the foundation of everything that follows.

The constitutional language is confirmed and precise. Section 52(1) of the Constitution Act 1889 (WA) reads: “The Legislature shall maintain a system of local governing bodies elected and constituted in such manner as the Legislature may from time to time provide.” Section 52(2) provides that each elected local governing body shall have such powers as the Legislature considers necessary for the better government of the area in respect of which the body is constituted.

The word “governing” is a present participle – a verb doing the work of an adjective to describe what the bodies do. It is not a noun. It does not create a tier of Government. That point is now solid. Drafting the article.

Your Council Is Not the Government

A plain-English explanation of what your local council actually is, and what it is not

Pick up any piece of correspondence from your local council. Look at the letterhead. Somewhere on it you will see the word “council” – Shire of something, City of something, Town of something. What you will not see, if you look carefully, is the word “government” used as a description of what the council is.

That is not an accident. And understanding why it matters could change the way you respond the next time a council officer knocks on your door.

The three tiers – and what the third tier actually is

Most Australians have been taught that Australia has three tiers of government: Federal, State, and local. The first two are correct. The third requires examination.

The Federal Government is established by the Commonwealth of Australia Constitution Act 1900, an Act of the Imperial Parliament of the United Kingdom. It holds legislative, executive and judicial power as described in that Constitution. It is a sovereign government in the full legal sense.

The State Governments derive their existence from their own Constitutions – in Western Australia, the Constitution Act 1889. They hold legislative, executive and judicial power within their respective territories. They are governments in the full legal sense.

Local councils are not in either of those categories. They are not mentioned in the Commonwealth Constitution at all. They hold no legislative, executive, or judicial power of their own. They exist only because a State Parliament created them by statute and gave them certain defined administrative functions. They can be abolished, merged, suspended, or restructured by a simple Act of State Parliament, with no constitutional barrier to doing so.

This is not a technicality. It is the foundational legal fact about what a council is.

What the Constitution actually says – and the word it chose

In Western Australia, the existence of local councils rests on a single provision inserted into the Constitution Act 1889 in 1979. Section 52 reads, in its entirety:

“The Legislature shall maintain a system of local governing bodies elected and constituted in such manner as the Legislature may from time to time provide.”

Read that again slowly. Local governing bodies.

Not local government bodies. Not a third tier of Government. Not Government at all.

Governing is a verb. It describes an activity – the activity of administering local matters. The Constitution chose that word deliberately. A “governing body” is a body that performs the activity of governing within the scope given to it by the Parliament that created it. It is not Government. It does not possess the powers, status, or legal standing of Government. It is a body that does some governing – in the same way that the board of a sports club or a school is a governing body for its own limited purposes.

The same language appears across every other Australian State and Territory. Not once does any constitutional provision describe local councils as a tier of Government. Not once does any provision give them the sovereign powers that Federal and State Governments hold. Every constitution uses the verb, never the noun.

The three things Government can do – that your council cannot

There are three fundamental powers that define what Government means in the full legal sense. Understanding them makes the distinction between Government and a governing body immediately clear.

The first is the power to make law. Real law. Law that binds people because the Parliament that passed it holds sovereign legislative power. State Parliaments and the Federal Parliament have this power. Local councils do not. Councils can make local laws – but only within the scope the State Parliament allows, only following the procedure the State Parliament prescribes, and subject to being disallowed by the Parliament at any time. A council’s local law is subordinate legislation. It is as different from an Act of Parliament as a workplace rule is from a statute.

The second is the power of the Crown. Government in Australia means the Crown – the sovereign authority that traces its legitimacy through the constitutional chain from the King downward. Government acts are acts of the Crown. Local council officers hold none of these powers. The Local Government Act 1995 in Western Australia is explicit on this point: the Act does not bind the Crown. The council is legally separate from the Crown. Its officers are employees of a body corporate, not Crown officers.

The third is the power of judicial determination. Courts decide legal rights and impose legally binding consequences because they hold judicial power, exercised by judges appointed under constitutional authority. A council officer issuing a compliance notice is not exercising judicial power. No determination has been made. No court has found anything. The notice is an administrative act by an employee of a body corporate. Until a court has heard and determined the matter, the notice is an assertion, not a judgment.

What a council actually is

A council, in plain legal terms, is a body corporate. That is the precise description the Local Government Act 1995 (WA) uses. A body corporate is a legal entity – like a company – that can own property, enter contracts, sue and be sued, and exercise the specific powers Parliament has given it.

Your local Shire is, in its legal nature, more similar to a large company than to the Government. It has a board of directors – the elected councillors. It has a chief executive – the CEO. It has employees. It has a budget. It has rules – its local laws – that it is authorised to enforce within the limits of its enabling statute.

When the council writes to you asserting authority over your land, that letter is not a Government directive. It is correspondence from a body corporate. When the CEO issues a compliance notice, that notice is an administrative act of a statutory officer, not a Crown command. When a council officer claims the right to inspect your property, that claim is only as valid as the specific statutory provision giving that officer that right – and the officer must be able to show you exactly which provision, and exactly what authority they personally hold.

None of this means a council has no authority. It does, within its defined statutory scope. But that authority is bounded, specific, and entirely derived from the statute that created the council. It is not inherent. It is not sovereign. It is not the Crown.

The language game and how it has played out

Here is the thing worth sitting with. The phrase “local government” is used everywhere – in newspapers, in school curricula, in everyday conversation. The Federal Government even has a department that deals with local government. The language has become so embedded that most Australians genuinely believe their council is a tier of Government in the same sense that the State and Federal governments are.

But look again at what the legislative documents actually say. The Constitution calls them local governing bodies. The Local Government Act creates them as bodies corporate. Their own association in Western Australia calls itself WALGA – the Western Australian Local Government Association – and describes what it does as supporting local governments with their governing functions.

Every time the word appears in a formal legal document, it appears as an adjective or a verb describing an administrative function. Government as a noun – as a thing, as a sovereign institution, as a tier of the State – does not appear in reference to councils in any foundational constitutional document.

The gap between the language of the law and the language of public perception is not a small one. It is the gap between a body corporate administering local services and a sovereign institution exercising State power. Those are fundamentally different things, with fundamentally different levels of authority over the people who live within the council’s area.

Why this matters to you personally

If you receive a notice from your council claiming you must do something or face a fine, you are entitled to ask a series of specific questions. Not because you are obstructing anything, but because the council, as a body corporate exercising statutory powers, must be able to demonstrate those powers exist.

What specific Act, section, and subsection gives the council the authority to require this of me? Is the officer issuing this notice doing so under a specific instrument of delegation from the council, or are they acting on their own initiative? Has the council, as a body, voted to take this action, or is this the CEO or another employee acting without a council resolution? Is the matter one the council can lawfully determine administratively, or does it require a court process to impose a binding consequence?

These are not trick questions. They are the questions any accountable body exercising public power should be able to answer without hesitation. A council that cannot answer them has not demonstrated the authority it is asserting.

The honest bottom line

Your council performs genuinely important functions. Roads, rubbish, local planning, parks, and community facilities are all real services that benefit real people. None of this article disputes that.

What this article disputes is the assumption – built over decades of loose language and institutional habit – that the body performing those functions is Government in the sovereign sense, with authority that flows from the Crown and binds you as a subject.

It does not. It is a body corporate, created by State statute, exercising defined and bounded administrative powers within a limited geographic area. Its officers are employees, not Crown officers. Its decisions are administrative acts, not judicial determinations. Its authority over you extends precisely as far as the statute that created it – and not one inch further.

The Constitution said it clearly in 1979, and nobody changed it since. Local governing bodies. The activity of governing, performed by a body the Parliament created and can dissolve. Not Government. Not the Crown. Not a sovereign institution.

Just a body corporate, doing what the Parliament told it to do – within the limits the Parliament set.

This article draws on the Constitution Act 1889 (WA), the Local Government Act 1995 (WA), and the Commonwealth of Australia Constitution Act 1900. The constitutional position described applies in substantially equivalent form across all Australian States and Territories. Nothing in this article constitutes legal advice.

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Last Updated 5 months ago

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