Wondering about whether your rates should go to rock walls? It is NOT ILLEGAL to not pay rates.
See below a summary of legal advice we have received:
Withholding payment of rates is not an offence.
2. A decision or action by a landholder to withhold payment of rates is not listed as an offence under the Local Government Act 1993 (Act).1 The consequence of the non-payment of rates for a person who withholds the payment is the process of debt collection and recovery as outlined below. The Act makes no distinction between rates that have not been paid for reasons of financial hardship or mismanagement, and those which have not been paid for other reasons determined by the landholder.
3. There are situations in which providing ‘incitement’2 or ‘counsel’3 to a person to act in a certain way is an offence. However this only applies where the action urged to be undertaken is an offence.
Examples of withholding rates
4. There are many examples of residents refusing to pay rates on the basis of a belief as distinct from an inability to pay at the time.
5. In particular residents who believe that councils do not have the power to levy taxes have refused to pay their council rates for a period of time. They have acted on the belief that as local government is not recognised in the Australian Constitution it is not entitled to levy taxes (rates). This view is legally incorrect however there still remain websites that propound this point of view and landholders who have withheld rates based on this belief.
6. We can find no evidence of consequences for the website authors, or residents who have advocated the withholding of rates, other than the processes of debt collection in the Local Government Act 1993 outlined below.
Levying and collection of rates by local government
7. Local councils in NSW have the power to levy rates4 and to charge interest on overdue rates at a rate not more than that set by the Minister.5
Collection of unpaid rates
8. A council is permitted to sue for unpaid rates in the usual way that commercial debt recovery occurs,6 with some special provisions outlined in the Act such as being able to commence an action within twenty years of the rates being owed.7
9. The Act only allows for unpaid rates to be collected via proceedings for debt collection or the sale of land regardless of the motivation for failing to pay the rates.
10. Byron Shire Council has a Debt Collection Policy which can be accessed online. There is nothing contained within the Debt Collection Policy which is contrary to the process outlined here.
Sale of land
11. Council also has the power to sell land for which rates remain unpaid for five years (where the land is occupied), and 1 year if the land is vacant.8 Please note that vacant land can only be sold after one year if the council obtains a valuation, the rates outstanding exceed the valuation amount and the land is sold within six months of receiving the valuation.9
12. Before selling any land council must place an advertisement in a newspaper not less than 3 months before, and not more than 6 months before, the scheduled sale date, and take all reasonable steps to notify any person with an interest in the land.10 If the rates are paid before the sale date the council is prohibited from proceeding with the sale.