January 2006 Issue 83
LOCAL GOVERNMENT BRIEFLY
In this issue:
Becker v City of Onkaparinga – Order
of the Day
The Issue
Mr Becker had erected several blackboards on his property which
he wrote various messages, often about local, state and federal
government matters. These blackboards were visible from a main
road. The Council determined that the blackboards were “unsightly” and
issued a warning that they intended to issue an order under Section
254 of the Local Government Act 1999 in order to make Mr Becker
remove the blackboards. Accordingly, an order was then issued
in the following terms:
- Remove from ‘the land’ all hoardings, blackboards,
signs and associated structures or similar objects visible
from Commercial Road, Port Noarlunga South; and
- Refrain from placing any hoardings, blackboards, signs, structures
or similar objects on ‘land’ so as to be visible
from Commercial Road, Port Noarlunga South.
Mr Becker did not remove the blackboards. The Council then proceeded
to charge Mr Becker with five counts of breaching the order;
he was convicted on each count in the Magistrates Court. Mr Becker
appealed the decision to the Supreme Court arguing, amongst other
things, that the order was made outside of the power of Section
254 (Ultra Vires) and that the word “unsightly” should
not allow the Council to infringe upon Mr Becker’s Constitutional
Right to Free Political Speech.
“Ultra Vires”
The three judges held that the order was made outside of the
power of Section 254. Item 1 of that Section allows Councils
to “order a person to … take action considered by
the council to be necessary to ameliorate an unsightly condition”.
The Supreme Court interpreted this to mean that the Council could
only make an order for a member of the public to remove unsightly
materials or do some other positive act. The Council would
not be able to make an order which directed that in the future
a person could not put in place unsightly materials. On this
ground the court ordered that the second part of the order made
by the Council was ultra vires.
The Council’s order was said by two of the three Judges
to be so broad that if Mr Becker wished to sell his house he
would be prohibited from placing a “for sale” sign
at the front.
It may have been open for the Council to make an order requiring
the removal of the blackboards and an order that those blackboards
with the same content not be replaced. However, this was not
tested.
Constitutional Right to Freedom of Political Communication?
The Supreme Court did not consider this issue in detail as it
considered that the appeal had already succeeded on the first
argument. Each of the Judges said that the Constitutional issue
did not need to be considered. However Chief Justice Doyle
and Justice Bleby did state that the issue may have arisen if
Mr Becker had not been successful on the first argument.
Orders
Orders, made under Section 254, by Councils, such as the one
considered in this case, must give a measurable outcome to the
recipient of the order. That is, the recipient should be able
to take clearly defined steps, which will bring him/her within
compliance of the order. Without this there is the risk that
any order made by a Council will be successfully appealed by
the recipient for lack of uncertainty and as in this case being
beyond the Council’s power.
Delegated Authority
The power to issue orders is a power vested in Councils. A
Council, in order to remove the necessity of having to pass a
resolution every time an order needs to be issued, may delegate
its authority to a council officer. This delegation must be done
lawfully to ensure any order made by a Council officer is valid
and enforceable. If a Council officer has not been correctly
delegated the requisite power by the Council, there may be a
successful appeal against any order made by them.
Conclusion
Councils must have regard to the power they, or their delegated
officers are exercising when issuing an order. The Act or Regulation
which confers the power may expressly limit the power. To take
the example from the case above, a Council cannot issue an order
to refrain an individual from doing something in the future when
the power only extends to ordering positive actions. (This in
turn limits the power which the Council may delegate). The case
above resulted in a very strict interpretation of Section 254,
but this type of worst-case scenario can be avoided by strictly
complying with the Act or Regulation.
The final point is that any order issued must clearly define
the expected and measurable outcome. That is, the required outcome
must be capable of being determined prior to it occurring.
For further information about issues covered
in this article, please contact Michael Kelledy on 8210 1237
or Email mkelledy@normans.com.au.
Expiation of Offences Act 1996
Amendments
Councils should be made aware that amendments have been made
to the Expiation of Offences Act 1996 (“the Act”)
and the Expiation of Offences Regulations 1996 (“the Regulations”)
by Sections 5 and 6 of the Statutes Amendment (Expiation of Offences)
Act 2003 which come into operation on 4 December 2005, some two
years after assent by Parliament. The following is an outline
of the notable amendments to the Act.
Reminder Notices
Section 5 of the amending Act amends Section 11(1) of the principle
Act and Schedule 1(3) of the Regulations in relation to expiation
reminder notices. The amendment removes the requirement on the
Council to issue an alleged offender with an expiation reminder
notice in circumstances where the alleged offender has provided
the Council with a statutory declaration, or other document,
disputing the alleged offence, and the Council has subsequently
served the alleged offender with an expiation enforcement warning
notice.
The amendments to Section 11(1) of the Act also require that
expiation reminder notices specify the amount of the expiation
fee, to whom the fee is payable the period in which the fee is
payable and be accompanied by an election to prosecute form and
a form suitable for use as a statutory declaration.
Enforcement Warning Notices
Section 6 of the amending Act inserts Section 11A into the Act
and introduces expiation enforcement warning notices. Expiation
enforcement warning notices may be issued on each occasion that
the Council does not accept a statutory declaration or other
document provided by the alleged offender as a defence to the
alleged offence(s), but prior to taking action under the Act
to enforce the expiation notice.
Section 11A of the Act requires that the expiation enforcement
warning notice must contain a statement that the statutory declaration
or other document provided by the alleged offender is not accepted
by the Council as a defence to the alleged offence, specify the
amount of the expiation fee, to whom the expiation fee is payable,
the period in which it is payable and be accompanied by an election
to prosecute form. Further, Section 11A requires that no
enforcement action be taken under the Act until 14 clear days
have elapsed from the date that the expiation enforcement warning
notice was issued to the alleged offender and the prescribed
expiation enforcement warning notice fee of $30 is to be added
to the unpaid expiation fee. An expiation enforcement
warning notice is not to be regarded as an expiation reminder
notice for the purposes of any other law.
Fees
Section 7 of the Regulations in relation to reminder notices
has been varied so that the prescribed fee for a reminder notice
is $30, plus the fee to search the Motor Vehicles Register.
Regulation 7A has been inserted into the Regulations in relation
to expiation enforcement warning notices. Regulation 7A
provides that the fee for the issuing of an expiation enforcement
warning notice is $30 plus the fee for the relevant Motor Vehicle
Register search if the vehicle was involved in the alleged offence
to which the expiation notice relates and an expiation reminder
notice was not issued to the alleged offender.
Variations have been made to Regulation 8 of the Regulations
in relation to expiation enforcement warning notices that relate
to more than one offence and the order of payment in satisfaction
of expiation enforcement warning notices and reminder notice
fees.
Certificates
Variations have been made to Regulation 9 of the Regulations
in relation to certificates for enforcement purposes to include
particulars regarding the date on which an expiation enforcement
warning notice (if any) was issued.
Forms
Schedule 1 of the Regulations in relation to forms has also
been varied to include a prescribed form for an expiation enforcement
warning notice and alterations to the prescribed form for an
expiation reminder notice to mirror the prescribed form for an
expiation enforcement warning notice.
A model expiation enforcement warning notice can be found on
the Local Government Association website in Circular 47.16.
For further information about issues covered
in this article, please contact Paula Meegan on 8210 1292 or
E‑mail pmeegan@normans.com.au.
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