April 2006 Issue 84
LOCAL GOVERNMENT BRIEFLY
In this issue:
Tim Griffin – Associate
 Tim
Griffin joined the firm’s Local Government Team in March
2006 and specialises in local government regulation and compliance.
Tim has approximately 20 years experience in law enforcement
as an investigator, policy adviser and prosecutor. He possesses
a sound knowledge of regulatory procedure and is available to
provide advice and training on a broad range of regulatory and
compliance issues.
Prior to joining Norman Waterhouse he was extensively involved
in the administration of the Environment Protection Act and other
natural resource legislation. Tim draws on a wealth of experience
and knowledge in the fields of regulatory procedure and environmental
law and believes in providing practical solutions to compliance
problems.
Areas of Speciality:
- Enforcement of regulatory breaches including the issue of
orders, expiation notices and prosecutions;
- Significant tree legislation;
- Road traffic and parking issues;
- Public and environmental health issues;
- Supported residential care facilities;
- Natural resource management; and
Tim can be contacted on 8210 1248 or by email
at tgriffin@normans.com.au
LOCAL GOVERNMENT ELECTIONS CRITICAL DATES
FOR 2006
Due to the amendments made to the Local Government (Elections)
Act 1999, there have been a number of changes to critical dates
for local government elections. This includes changes to the
dates for the closing of the voters roll, for the opening and
closing of nominations and for the polling day, scrutiny and
count.
Below is a summary of critical dates for the Local Government
elections in 2006:
- Roll Close
Friday 11 August
- Last date for Electoral Commissioner to supply House
of Assembly information
Friday 18 August
- Nominations Open
Tuesday 5 September
- Nominations Close
12 noon Tuesday 19 September
- Close of Voting
5pm Friday 10 November
- Scrutiny & Count
Saturday 11 November
For more information, please contact Michael
Kelledy on 8210 1237, Kate Oliver on 8210 1226 or Penny Chalke
on 8217 1327.
PROCLAMATION OF SECTION 45D OF THE DOG
AND CAT MANAGEMENT ACT 1995
Councils should be aware that on 1 July 2006, the provisions
contained within Section 45D of the Dog and Cat Management Act
1995 will come into operation in certain Council areas (listed
in the Schedule to the Gazettal Notice of 30 March 2006).
The provisions apply in respect to specific requirements placed
on the owners of attack trained dogs, guard dogs and patrol dogs.
The requirements include, amongst other things, that the dogs
be implanted with microchips, the erecting of warning signs at
premises where the dogs are kept, keeping the dogs indoors or
in an enclosure at the premises where the dogs are kept, branding
of the dogs in a manner approved by the Dog and Cat Management
Board and the requirement that the dogs wear a collar prescribed
by the Dog and Cat Management Board at all times.
If you require any further information in relation
to the commencement of Section 45D of the Dog and Cat Management
Act, please contact either Anthony Fameli on 8210 1202 or Tim
Griffin on 8210 1248.
AUTHORISATION OF INSPECTORS UNDER THE
ROAD TRAFFIC ACT 1961
This is a relatively minor issue but one we thought worth mentioning. We
have noticed that some Councils have appointed Council officers
to be inspectors for the purposes of the Road Traffic Act 1961,
by making an appointment under Section 35(1A) of the Road Traffic
Act.
It is not necessary to make appointments under Section 35(1A)
of the Road Traffic Act because of the way Section 35 dovetails
with Section 260 of the Local Government Act 1999. The
way Section 35(1A) works is this: If a person has been
appointed as an authorised officer under Section 260 of the Local
Government Act 1999, then that person is, by virtue of that appointment, “automatically” appointed
as an inspector for the purpose of the Road Traffic Act – without
the need for a separate appointment. There is no requirement
to Gazette appointments under Section 260 of the Local Government
Act.
For more information, please contact Anthony
Fameli on 8210 1202 or Paula Meegan on 8210 1292.
ENFORCEMENT: TO PROSECUTE OR NOT TO PROSECUTE?
Within the various Acts and subordinate legislation administered
by Councils, are two basic forms of enforcement:
- proceeding on a Complaint & Summons – a prosecution – in
the Magistrates Court. A successful prosecution will
result in the obtaining of a conviction and the imposition
of a fine; and
- proceeding in either the Magistrates Court or the District
Court seeking an order that a person either do some act or
refrain from doing some act. No fine is imposed.
Why prosecute?
It is understandable that councils are generally reluctant to
institute prosecutions for breaches of the various Acts and subordinate
legislation administered by them. The penalties for prosecution
are often insufficient and outweighed by the cost of the prosecution
itself.
However, councils have been given extensive powers by Parliament
to enforce the legislative provisions they administer. It
is, therefore, the duty of councils to enforce these laws, and
to do so earnestly and fairly. If the legislative provisions
that councils administer are to be effective, they must be enforced. If
legislation is not enforced, then regardless of the size and
the penalty provided, it is not likely to be obeyed.
A prosecution is effective in ensuring compliance with legislation
by inflicting punishment and penalty for the commission of criminal
or civil wrongs by the imposition of a fine and by virtue of
the deterrent aspect of a conviction in respect to both the particular
offender and the community at large.
It is the conviction, not the penalty, that is the essence of
a prosecution. A conviction carries with it a social stigma
and embarrassment and remains on the offender’s police
record for the duration of their adult life. As such, the burden
of a conviction long outlasts any inconvenience caused by a fine. Further,
it is the conviction that acts as a deterrent for others in the
community to not commit the same type of crime.
When making the decision to prosecute councils should keep in
mind that they have a duty to the community to enforce compliance
with the legislation under its control.
Prosecutions can only be successful if councils conduct effective
investigations to gather the appropriate evidence to establish
the elements of the offence. Without the evidence, whether
that be documentary, testimonial or otherwise, a prosecution
will not succeed.
For more information regarding the importance
of effective investigation and evidence gathering methods please
contact Tim Griffin on 8210 1248, Anthony Fameli on 8210 1202
or Penny Chalke on 8217 1327.
TEMPLATE DELEGATIONS ONLINE FOR COUNCILS
Template delegations are now available for councils free of
charge, online.
The template delegations project was undertaken by Norman Waterhouse,
on behalf of the Policy and Governance Officers’ Network,
in conjunction with the Local Government Association.
As a result of the project, councils can now access the following
documents online, via the secure site on the Local Government
Association website:-
- Template instruments of delegation under approximately 20
Acts (those considered most relevant to council’s activities);
- A template resolution for the making of delegations;
- Documents for making, and notifying officers of, subdelegations;
- Information about legislative requirements relating to delegations;
and
- Best practice recommendations relating to delegations.
The information and templates are navigated via instruction
screens.
It is expected that the documents will be especially helpful
for councils which have not yet established a framework for delegations. It
will enable these councils to establish a comprehensive “set” of
delegations in a very short time at little or no cost.
It is also expected that those councils with existing frameworks
for delegations will still find the documents helpful for streamlining
procedures, keeping delegations up to date and undertaking reviews.
The site can be utilised without assistance if desired. However,
Councils who do not yet have an existing delegations framework,
may prefer to seek advice to assist in establishing their delegations
and subdelegations.
Given that all the main documents are already prepared, we would
expect that advice would relate to how to make the initial delegations,
deciding which Acts should be included, customising the templates
to suit the Council’s particular situation, and particularly
setting up and managing subdelegations.
Please contact Paula Meegan on 8210 1292 with
any queries relating to the use of the delegation templates or
in relation to delegations generally.
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© Norman Waterhouse 2006. All Rights Reserved. You may not
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Penny Chalke.
Norman Waterhouse
Lawyers
Adelaide
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GPO Box 639 Adelaide
South Australia 5001
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