LOCAL GOVERNMENT (MODEL BY-LAWS) AMENDMENT BILL

Introduction and First Reading

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (21:50): Obtained leave and introduced a bill for an act to amend the Local Government Act 1999. Read a first time.

Second Reading

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (21:51): I move:

That this bill be now read a second time.

Currently, section 250(4) of the Local Government Act 1999 prevents a council from adopting a model by-law and exercising the powers underneath that by-law until the period allowed for disallowance under the Subordinate Legislation Act 1978has passed, and the model by-law has not been disallowed.

The Subordinate Legislation Act provides that a regulation (including a by-law) must be laid before both houses of parliament, and may be disallowed by resolution of either house passed following a notice of motion given within 14 sitting days on the regulation being laid before the house.

As members would be aware, a model by-law for the management of pedestrian malls was gazetted on 13 October this year. This by-law was developed at the request of, and in consultation with, the Adelaide City Council. The model by-law, once adopted by the council, will restore the powers conferred by the by-law that was disallowed, by the Legislative Council on 14 September 2011, because it contained references regulating preaching, canvassing, haranguing and distributing literature. The disallowed by-law was drafted prior to the judgement of the Full Court, invalidating these words, by reason of the infringement of the implied freedom of political communication.

The model by-law does not contain any of the words that were held to be invalid by the Full Court. It does, however, give a council the ability to regulate the use of amplification generally, the use of equipment, such as platforms or stages, and importantly prohibit the interference or disruption of any other person’s permitted use of a pedestrian mall such as Rundle Mall.

Adoption of the model by-law will enable the Adelaide City Council to control the conduct of the preachers and the protestors, and will assist in meeting the concerns of the Rundle Mall retailers, and generally balance the competing interests of Rundle Mall users.

The model by-law is still subject to disallowance under the Subordinate Legislation Act. However, parliament under its current sitting schedule will not sit 14 sitting days from the day the model by-law was tabled until sometime next year. This means, without the amendments proposed in this bill, the Adelaide City Council will be unable to adopt this model by-law until next year, well past the imminent busy Christmas period. Consequently, the Adelaide City Council will be unable to regulate the interference or disruption of an individual’s permitted use of the mall until sometime next year.

The amendments I am proposing will remove the current restriction in the Local Government Act that prevents a council from adopting a model by-law until the time for disallowance has passed, and enable adoption of a model by-law any time after it is published in the Gazette. The amendment also provides that, in the event that the model by-law is disallowed, the adoption by the council will be of no effect on and after the date of disallowance. The model by-law for the management of pedestrian malls is the first model by-law to be made since the commencement of the Local Government Act in 2000.

As members would appreciate, the Subordinate Legislation Act provides that regulations, including by-laws, generally do not come into effect until 4 months from the day they are made. The 14 sitting day disallowance period gives the Legislative Review Committee and both houses of parliament an opportunity to scrutinise subordinate legislation and to move a motion to disallow where that is considered to be appropriate. However, the Subordinate Legislation Act does provide for the early commencement of regulations where the responsible minister signs a certificate of early commencement and gives reasons for the need for early commencement in a report to the Legislative Review Committee.

Currently, there is no similar provision allowing early commencement for 'ordinary' council by-laws, and I consider that this is appropriate. However, model by-laws are distinct from 'ordinary' council by-laws in that model by-laws result from a process similar to regulations, that is, cabinet recommends to the Governor in Executive Council a proclamation be issued to make the model by-law, followed by gazettal of the by-law. In contrast, by-laws made by individual local government councils must follow the process specified in the Local Government Act. Model by-laws are still laid before parliament and subject to disallowance.

The amendments proposed in this bill will mean that it may be possible that a council adopts a model by-law which is disallowed by parliament at a later date. In that event, the adoption by the council will be of no effect on and after the date of disallowance.

I would also like to make a comment. I acknowledge the efforts made by the Hon. Stephen Wade. I believe he genuinely tried to develop a bill which he thought would have fixed up the problems, but I have advice that there were some issues in regard to that bill which would make it difficult to fix up the problem in Rundle Mall. Also, it would open it up to legal constitutional challenge.

We all know that these preachers are now becoming very litigious and the last thing we would want in a situation is the parliament passing a bill that we know is going to be subject to a constitutional challenge. I have given an undertaking to the Hon. Mr Wade that I will work with him for the longer term to look at providing appropriate legislation if need be to fix up the problem in Rundle Mall if this does not work. Our advice is that this model by-law is what the Adelaide City Council wants and believes will give it the tools to be able to control the preachers in the Mall.

Debate adjourned on motion of Hon. T.J. Stephens.

At 21:58 the council adjourned until Thursday 10 November 2011 at 11:00.