LOCAL GOVERNMENT (MODEL BY-LAWS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 November 2011.)

Ms CHAPMAN (Bragg) (11:03): I rise to speak on the Local Government (Model By-laws) Amendment Bill 2011. As lead speaker, it is my pleasure to indicate that although the opposition considers there are some difficulties with this bill, on balance, we will be supporting it. I indicate that the member for Adelaide will also be making a contribution to these debates.

The position is that, pursuant to section 250 of the Local Government Act 1999, a council can adopt model by-laws which have been gazetted and not been disallowed under the Subordinate Legislation Act 1978. That is after the 14 sitting days of the parliament. This legislation proposes to change the date at which a council can adopt a model by-law to the beginning of the disallowance period. In the event that the model by-law is disallowed, that is, at some subsequent determination, then the adoption by the council will have no effect on or after that date of disallowance.

The process in respect of the by-law variation or implementation is one which has really been brought into line with our regulatory arrangements. Members would be aware that, under the regulatory procedure, in essence we pass laws in this parliament by way of statute and it is accepted that for the purpose of implementing the obligations and responsibilities under that statute law there needs to be the machinery to operate.

This is done in two forms. One is by regulation of a minister and one is, as in a number of areas, by establishment of rules. Sometimes they are rules of a court, sometimes they are codes of practice, and sometimes they are in the form of guidelines, and these are all really in the area of subordinate management rules and regulations to bring into effect the law that we pass here in the parliament. They have different processes, different hoops to jump through and different thresholds to achieve, but what happens with the by-laws is that they need to go through a cabinet approval process before their gazettal and can then be adopted by individual councils before they take effect.

It is one of a number of different procedures that can operate, which has its own set of implementation and amendment rules attached to it. What the government has done is to make the decision that this is the process by which some assistance and relief will be given to what has become the Rundle Mall problem, about which many of us have read in the newspapers and which has been the subject of concerns in correspondence to us.

This is the whole issue of how we best manage the people who remain or loiter in a public space and who espouse their views on a particular product or performance or religious mantra. The problem has arisen in the public arena in recent times as a result of apparent complaints from other users of the Rundle Mall area, which is a shopping precinct, indeed a premier shopping precinct for Adelaide, when the other users of this area have been interrupted or interfered with. Some allege they have been accosted or assaulted, and by assault I mean quite vicious verbal assault towards people who are in the precinct.

Whether this is in response to their reaction to somebody preaching their message for their product or particular brand of religion or whether it is something that has been uninvited and there has been no inciting whatsoever for a disturbance to occur I am not here to judge or pass any comment on. What I will say is that as a general rule I think it is fair to say that the public is concerned, not just on questions of safety, but to have the quiet enjoyment to undertake shopping or attendance of a restaurant or cafe facility in the Rundle Mall area.

It is unacceptable if people cross that threshold; that is, the opportunity to present their argument on a particular aspect of their view, to have a freedom of speech, to be able to espouse a particular opinion, the right to rally, and the right to be able to congregate as a community to espouse a particular message. Sometimes it is a political message, as we have recently seen in Hindmarsh Square from those who are having some kind of sit-in there. I do not see them as an additional adornment to what are otherwise rather modern and attractive pieces of artwork in that square. Nevertheless, some obviously take the view that their tent city is of some benefit to the state. I will leave that for others to judge.

What I will say is that, where you bring together an individual or a group of individuals who have a particular view on a particular product or service, or a particular policy or a religion, whilst they might have an entitlement to be able to espouse it and to have freedom of speech, it cannot run into tension or friction with the rest of the community being able to have peaceable enjoyment of their environment to undertake their own lawful activity, whether it is to shop, go to work, pick up their children, get on a bus or whatever their activity may be.

That is the problem with which we are faced. The government's answer to this is to introduce this model by-law legislation. It is the opposition's view that this is not adequate or necessarily appropriate. However, the Hon. Ian Hunter in another place has, during the course of debate on this bill, confirmed that legal advice has been obtained on this matter and that it should, therefore, be of some reassurance to the house that we can accept that this is the appropriate procedure. Presumably, other alternatives have been looked at and this reassurance has been given to the parliament so that we may feel confident that this is a procedure that will actually work and we will be able to manage this tension and ensure that we balance the rights of both groups.

Much has been said in another place but I will simply comment about the pre-existing position prior to the determination by the Full Court of the Supreme Court, which has thrown this issue essentially into chaos. The District Court judgement of Corneloup v the Adelaide City Council was delivered by Judge Stretton on 25 November 2010.

The by-law which was the subject of that determination and which was struck down as invalid was promulgated in February 2011, three months after the District Court judgement. The determination of this raises questions about whether there was some tardiness or at least neglect in the application of the process by the Adelaide City Council in promulgating a by-law which offends this judgement—three months later, but, nevertheless, that is what has occurred.

The by-law which had previously been disallowed had the word 'preaching' in it and we are left with a situation where we are unable to utilise the by-law to restore order in Rundle Mall. Perhaps some careful attention to this matter would have meant that we could have avoided this problem but, nevertheless, we need to remedy it one way or the other.

Members would be aware that the member for Adelaide has presented another option to this parliament to consider. We think it is a very good option and we in the opposition think it is one that will ultimately prevail as the most effective to deal with this issue. However, we are in a circumstance where the government of the day has presented an alternative model—it says, clothed with the benefit of crown law advice—that is meritorious and a superior model to that offered by the member for Adelaide. We will see how that goes.

That is not to say that the opposition is not looking, with the government, for some effective remedy to this problem. Of course we look to some resolution of it. We want—at all times, but particularly as we go into a busy shopping period in the Rundle Mall area, as the weather improves and as there is a rush to acquire 25 December celebration presents—a precinct that is going to be a very busy place, and we all know, with the school holidays imminent and the return of that great group of schoolies from the beach, that we are going to find Rundle Mall a very busy place within weeks. Obviously, we hope that that will be at a time when those people will be able to enjoy those facilities and that they will be able to be protected from any offensive or intimidatory approaches, let alone assault, by those who may espouse their views.

We support this bill as a measure that we think is deficient but that we hope will still work and, if it does not, that the government will have sufficient courtesy, at least, to welcome a further initiative that was being presented by the member for Adelaide as an effective way to deal with this. In some ways we hope that may never have to happen and that the government's promises on this will not just evaporate in spin and they will deliver. In that regard we are hopeful. I will be seeking to go into committee but, with those words, indicate my support for the bill.

Ms SANDERSON (Adelaide) (11:17): I rise to support the bill. I think the house is very well aware of the issues that have been occurring in Rundle Mall and the effect they are having on businesses, shoppers and visitors to the mall, along with the image of the mall as a family-friendly shopping precinct. We all agree that Rundle Mall needs a firm set of regulations that visitors to the mall, including the preachers and protesters and shoppers, can all abide by.

However, as an opposition, we believe that this should be statute law and not just a council by-law, as the events that have occurred in Rundle Mall in the last year, which have caused significant concerns to businesses and visitors, will not be remedied simply by a by-law. However, in the interests of bipartisanship, I support this bill which will allow the fast tracking of the model by-law.

The council already had by-laws in place, but they were ineffective, and I believe—and I would like to be proved wrong on this—that if the model by-law is in place, we will continue to have council workers trying to issue infringement notices unable to obtain a person's details and SAPOL looking on, unwilling to police council by-laws. I have met with police and they feel that policing a by-law is a low priority, which is why I believe a state law would be more effective.

I hope I am proved wrong and the events in the Rundle Mall between the preachers, Spread love not hate, Stop Rundle Mall Hate Speech and any other group using Rundle Mall do not escalate any further. We have already seen the preachers disrupting the opening of the Feast Festival parade events in Victoria Square. The issue has also moved to the Paradise Community Church; there was a story in the paper.

My concern is that I am unsure whether this model by-law will be effective, because the council workers do not have the right to ask for a name and address, so how will they even enforce the by-law? But say that people do abide by the by-law, I am worried that it will just move it to other areas in Adelaide. The preachers have already stated to me that the very next place they will go will be the Adelaide Central Market.

They want an audience. They want to be where there are a lot of people. We have already seen that they have gone to the Paradise church. What is to stop them going to any other large church when the congregation is leaving at the end of the day? What about all the different public events and Christmas carols that are held throughout the city and at Glenelg? We have the Bay Sheffield run. What is to stop them from going anywhere else?

Whilst this law that we are passing now will fast-track the by-law, which I hope will help Rundle Mall in time for the Christmas trading, which is why this is a matter of great urgency, I am concerned that we are just shifting this issue. We do need statute law, which we do have on the table in this house and which has passed the upper house. I am more than happy to make any amendments that will make it a better law, but we do need to work together. This is an issue that I know we are all concerned about, and we need to work for a better outcome.

The Hon. Stephen Wade from the other place and I have been working on this issue for many, many months. I do have quite a big folder, as you can see here, of emails and letters of concern from shop owners, visitors to the mall and all the different people who are affected by this. There are people outside of the mall who are affected, and that is my concern, that we are just moving this issue.

If I am proved correct, we the opposition continue to offer the government our bill, which could comfortably sit side by side with this by-law and provide substantial power to confiscate and fine for the unauthorised use of amplification equipment, while also providing the protesters in Rundle Mall the opportunity to use a designated space, or a speaker's corner, so that they are provided with protection from criminal and civil liability if that space is used. In fact, the preachers have stated to me that they think this is a good outcome.

The best way to have a law abided by is by having the people you seek to restrict, control or look after in favour of your law. I think that goes a long way to making the law a successful law. Only time will tell if the government bill is a panacea for all problems that exist in Rundle Mall, but I do urge members of the house to please consider further state legislation on this issue.

Mr PENGILLY (Finniss) (11:22): I rise also to indicate support for this bill, but I would particularly like to acknowledge the work of the member for Adelaide and the Hon. Stephen Wade from another place, who have put a huge amount of effort into this Local Government (Model By-Laws) Amendment Bill. It has all been done with a bit of indecent haste, quite frankly. I find it unfortunate that, given the freedom of speech in this country and the right of people to express their views one way or the other, the parliament has had to pick up on this matter and ram this bill through very quickly. It is not through yet, but I presume it will get through.

I took the time recently to do a bit of wandering up and down through the city centre to get a personal appreciation of what was going on up there. I found it to be rather an ear shattering experience to say the least, unfortunately. Religious freedom and religious tolerance are things that I will support all the time and, indeed, we are a Christian nation. However, I do think that the fact that it has got to this stage where we have to have legislation brought in to fix up something that is not working properly is unfortunate. I do hope that this legislation does work. I do not know what, if any, amendments are planned down here.

I read the Hansard from the Legislative Council with a good deal of interest. The member for Adelaide (Rachel Sanderson) and the Hon. Stephen Wade, as I said earlier, have certainly gone out and about and consulted with many, many groups, organisations and people in an effort to get a clear message through the parliament on this bill. I note the comments of the minister, the Hon. Russell Wortley, in another place. I also note the comments of the Hon. Mark Parnell and the substance of the debate certainly from the Hon. Stephen Wade. I do not think we have to rattle around too long on it in here today, but I do acknowledge the problem. It is an unfortunate problem, and I hope this bill sorts it out.

The Hon. C.C. FOX (Bright—Minister for Transport Services) (11:24): I would like to thank the honourable members for their contribution to this debate. I would especially like to thank the member for Adelaide for her considered and informative second reading contribution. I know that she has worked very hard on behalf of her constituents in this particular matter.

In passing this legislation, councils across the state will have the option of adopting a model by-law and exercising the powers underneath that by-law anytime after it is published in the Gazette. This amendment will be of particular assistance to the Adelaide City Council as it will be able to adopt the model by-law for the management of pedestrian malls.

In relation to the comments by the member for Finniss, I take issue with the idea that we are ramming it through the parliament. I think we all know why this is going through the parliament at this point in time—because (as the member for Adelaide herself has pointed out) this is in relation to Christmas coming up and shoppers being able to shop without fear or intimidation.

I understand that the Minister for State/Local Government Relations, the Hon. Russell Wortley in another place, and the relevant shadow ministers, have been in discussion about this matter and have agreed on this course of action. I also understand that the government is keen to work with the opposition and the Adelaide City Council in looking to develop a longer-term solution to this particular matter.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: My first question is: has the government obtained legal advice on this bill and the model being proposed?

The Hon. C.C. FOX: Yes, it has.

Ms CHAPMAN: Has the legal advice been obtained from the Crown Solicitor's Office?

The Hon. C.C. FOX: Yes, it has.

Ms CHAPMAN: Has legal advice been obtained from any other independent party?

The Hon. C.C. FOX: My understanding is that lawyers from the Adelaide City Council were consulted during this process.

Ms CHAPMAN: Did the lawyers from the Adelaide City Council express a different opinion from the crown law office as to the model proposed?

The Hon. C.C. FOX: No, they did not.

Ms CHAPMAN: Were each of the sets of lawyers provided with the model proposed by the government or were either of them (and, if so, which ones) asked to give advice on the effectiveness of other models?

The Hon. C.C. FOX: They were developed through consultation with the Adelaide City Council lawyers and crown law.

Clause passed.

Clause 2 passed.

Clause 3.

Ms CHAPMAN: My question, minister, was whether either of these parties were invited to present any alternative models to the model now being proposed by the government.

The Hon. C.C. FOX: My understanding is that the answer to that question is no. I believe that you asked whether an alternative model was proposed, and I understand that that was not the case; that they were consulted in relation to this one model and that they were in agreement with that.

Ms CHAPMAN: I think that, from the information provided by the Hon. Ian Hunter, that legal advice was obtained and the model by-law was drafted by legal officers with the Crown Solicitor's Office and in consultation with parliamentary counsel. I think that what you are saying to us is that no other models were put to them to consider.

The Hon. C.C. Fox interjecting:

Ms CHAPMAN: Yes. And since the government has been aware of the model proposed in a bill by the member for Adelaide (and, indeed, has had that in correspondence, I think, from the Hon. Stephen Wade), has that model been presented to the Crown Solicitor's Office or any other legal adviser of the government for their opinion as to the validity of that?

The Hon. C.C. FOX: It is my understanding that, when the member for Adelaide's particular model was considered, the feeling was that it could have certain legislative ramifications which were really, I guess, not to be encouraged at that point in time. So, we did not want to find ourselves in the situation where we brought something forward that was immediately going to be challenged or, indeed, unenforceable by the various agencies involved.

Ms CHAPMAN: Just so that I am clear about that, on the advice, minister, that your government has received, the member for Adelaide's model could have been challenged either on its enforcement or on its validity, or both. Can you elaborate a little on that as to what the problem foreseen by the government was from this advice?

The Hon. C.C. FOX: As I understand it, the member for Adelaide's model had broad implications, but I will seek some further advice on that. I thank the member for Bragg for her question. The Crown Solicitor examined the model by-law and the Crown Solicitor did also examine the Statutes Amendment (Public Assemblies and Addresses) Bill. It was felt that the model by-law was more appropriate because the public assemblies and addresses bill would have been open to challenge, perhaps, in the courts by—I do not quite know how to say this nicely—a group of people who might be becoming increasingly litigious.

Ms CHAPMAN: I take it that you do not see the same problem with a model by-law on the basis that you see that this legislation would avoid the Supreme Court and Full Court that we have already had on by-laws.

The Hon. C.C. FOX: I cannot speak for what the Supreme Court or the Full Court may eventually approach; I cannot predict those things. Those are hypothetical events that may or may not occur, as is the way of hypothetical events. Having said that, I think I said earlier on in my response to the second reading that this is certainly something that the government wants to work on with the opposition and we are going through this process at the moment, but that certainly does not preclude the idea of working further with the opposition, particularly with the member for Adelaide, to come to a more long-term solution.

Ms CHAPMAN: One of the problems, I think, minister, is that there has been a standing back from dealing with these issues, and I think it is fair to say it has been convenient for one agency to leave it to the other. What we have actually seen over the years is the use of by-laws to keep some public order in public places, via in this instance the Adelaide City Council, and to a large measure they have been effective.

In this area, where there has been public disorder and even breaches of our criminal codes and legislation, I think it is fair to say there has been a reticence on the part of the police to get involved in what they would otherwise see as a state matter by saying that it is a matter for the council. So the people at large, in this instance in the precinct of Rundle Mall, have been left unprotected, and I think it is fair to say for those who might be advocating or presenting their vocal discord that they are not given any clear set of guidelines as to what behaviour is acceptable and what is not because there has been no threshold enforced by anyone, so that is why we are all here I think. We are trying to work out a remedy that is going to be effective.

My next question is under the scheme we are going to have a permitted use, and you are going to get a permit to be able to provide for this activity in that public space—and this question was raised in another place but I would like your answer to this on the record, minister. When two people have received permission—

The Hon. C.C. Fox: Two opposing persons?

Ms CHAPMAN: Not necessarily opposing, but two people who have the right to be able to broadcast their message. We are talking about two permit carriers, and they are undertaking an activity that would otherwise be prohibited by the by-laws, and one interrupts the other. What is the consequence of that?

The Hon. C.C. FOX: It is my understanding that both of those people, as you say not necessarily opposing people, could be liable to the penalty as pointed out by the model by-law. Yes, even if they shout each other down they can both be pinged.

Ms SANDERSON: Was any remedy sought to allow council workers to enforce this or any other by-law? At the moment the problem with the by-law is that they cannot ask for name and address, so I was wondering whether you had sought to fix that.

The Hon. C.C. FOX: It is my understanding that authorised officers of the council will be able to enforce that particular by-law. I believe also that in the past they have called on the police for assistance and, if needs be, they can do so again.

The Hon. I.F. EVANS: Is there not a power under the Local Government Act for the authorised officers to be able to gain the person's name and address when they commit an infringement?

The Hon. C.C. FOX: Member for Davenport, I have sought advice, and it would appear that the authorised officers can obviously ask but they cannot compel those people to give them their details; however, the police can compel them.

Ms CHAPMAN: I might conclude on this aspect: because the opposition has identified where we see some deficiencies in this regard, can we be assured that the government will ask, or at least put in a request at this point to the Commissioner of Police, that where a request for assistance is sought by an authorised officer there will be an assurance given of a backup for that?

Obviously, in a major event, like Christmas pageants and so on, we are aware of and understand the terrific support that the police provide to those events, but the situation where I think it is more critical is where there is no major event, there is no public festivity happening, there are just people around who are at risk and where the authorised officer needs backup and needs support.

In those circumstances, I think other members of the committee would want some reassurance from the government that everything is done to give assurance for that backup, that is, backup will be provided. Obviously, if it is a major resource issue, the government will need to consider that. Given there are people in the force who are required to be on duty in the precinct of the Adelaide city region, surely they could be available on call and support that reassurance, if that could be given, minister.

The Hon. C.C. FOX: As I understand it, the Hon. Russell Wortley from another place is organising a meeting with the police to talk about this operational matter and also to talk to them about the options that are available. I understand that the member for Adelaide has been contacted, or will be contacted about this in the very near future, as will the Adelaide City Council.

The Hon. I.F. EVANS: Minister, following your earlier answer about authorised officers, section 261 of the Local Government Act addresses the powers of the authorised officers. Under subsection (6) there is an offence created where someone (that is, a member of the public) fails to obey a requirement or a direction of an authorised officer. There is also an offence where a member of the public fails to answer to the best of the person's knowledge without reasonable excuse a question by an authorised officer.

Is it not true that, under that provision of the Local Government Act, a member of the public must answer the question about name and address unless they have a reasonable excuse to withhold it? The reason I raise this question is that it is often put out on radio that the local government officers have no power. When I have sought advice on this issue, the advice back to me, from people who work for the same entity from which you are getting advice, has been that authorised officers do have the power to require the name and address because that section, section 261(6), enables them to issue a penalty if the member of the public fails to cooperate.

The Hon. C.C. FOX: I thank the member for Davenport for his question. My understanding is that it is another offence but that the authorised officer still cannot force the person in question to give their name and address in the same way that the police can.

The Hon. I.F. EVANS: I will leave it there, but if the minister would like to seek further clarification between the houses that might solve the problem. I will be totally upfront with the minister in saying that the advice I have received from the same body that you are receiving advice from was different to that.

We need to clarify that between the houses to be crystal clear, because the power of authorised officers goes to the matter of the issuing fines for litter and a whole range of other things, and the government might want to contemplate, when it gets its final advice: if the authorised officers cannot issue a litter fine because they cannot get people's names and addresses, does the government think it has a problem? You might want to contemplate that between the houses. We do not need to deal with it now, but you can look at it between the houses.

Clause passed.

Schedule passed.

Bill reported without amendment.

Third Reading

The Hon. C.C. FOX (Bright—Minister for Transport Services) (11:53): I move:

That this bill be now read a third time.

Ms CHAPMAN (Bragg) (11:53): I want to say to all of those who are going to occupy the space in Rundle Mall, forthwith of this being returned to the upper house: Merry Christmas.

Bill read a third time and passed.

The DEPUTY SPEAKER: Before we continue, just for the record, that was the minister's first bill through parliament. Congratulations.