City of Marion

The Hon. N.J. CENTOFANTI (16:53): I move:

That by-law No. 7 of the City of Marion concerning Cats (Confinement) Variation made under the Local Government Act 1999 and the Dog and Cat Management Act 1995, made on 25 February 2020 and laid on the table of this council on 24 March 2020, be disallowed.

Firstly, on behalf of the committee, we are mindful of the City of Marion's right to make by-laws for the good rule and government of the area, and for the convenience, comfort and safety of its community.

Further, the committee acknowledges that the City of Marion, by making the by-law, is seeking to address matters of community concern in respect of the management of cats in the City of Marion area that, in its view, the Dog and Cat Management Act 1995 does not. However, on careful consideration of the by-law, it is the committee's view that the by-law, and specifically paragraph 11, is inconsistent with the part 5A of the Dog and Cat Management Act 1995 because it allows for seizure, detention and destruction of cats in circumstances that are different from the provisions of part 5A of the act and thus not authorised under section 90 of the act.

The committee's consideration of the underlying law is as follows: delegated legislation 'must not conflict with or override the provisions of their enabling Act, unless the enabling Act so provides'. The question is whether the regulation in question varies or departs from the provisions of the act. In considering whether a by-law is consistent with the enabling legislation, it is important to consider the degree to which the parliament has indicated its intention to deal with the subject matter. Where an act deals specifically and in detail with the subject it cannot be supposed that parliament intended that delegated legislation should deal with the same matter in a different way.

The Local Government Act 1999 states that by-laws must accord with the provisions and general intent of the enabling act. The act also provides that a by-law made by a council must not be inconsistent with this act or another act or with the general law of the state. The committee is aware that the City of Marion considered whether paragraph 11 of the by-law was inconsistent with the Dog and Cat Management Act 1995 but concluded, contrary to advice from the Crown Solicitor's Office, that it was not. For the reasons above, the committee agrees with advice from the Crown Solicitor's Office insofar as that advice asserts that paragraph 11 of the by-law is inconsistent with part 5A of the Dog and Cat Management Act 1995.

The provisions to seize and detain a cat in this by-law, in particular paragraph 11, would not only be inconsistent with part 5A of the Dog and Cat Management Act 1995 but impractical because of the cross-council border issues that may arise in respect of the seizure and detention of cats under the council's by-law. In addition, the hours during which cats are not to wander at large are not specified in paragraph 6 of the by-law but are left to be determined by council resolution.

It is the committee's view that paragraph 6 as drafted permits the City of Marion, by resolution, to adopt a span of hours that may amount to an unreasonable burden on cat owners in the City of Marion area. For this reason, it would be more appropriate for the City of Marion to specify a span of hours in the by-law and seek a further variation by-law if the span of hours set in the by-law does not prove appropriate.

Regarding consultation, the committee notes that residents in the City of Marion were given a genuine opportunity to comment on the by-law and also accepts that residents of the City of Marion were offered an opportunity to give further comments in relation to the by-law as a whole. However, the committee was concerned that too little attention was given during the public consultation process to the more controversial parts of the by-law. For example, no survey question sought specific feedback from the community of the City of Marion in relation to paragraph 11 of the by-law.

Finally, the Dog and Cat Management Board reports to the committee that just over half of South Australia's councils have cat by-laws that include provisions placing limits on cat numbers, curfews, containment, registration, nuisance and wandering at large. None of these councils have adopted the approach taken by the City of Marion in respect of paragraph 11 of the by-law. Therefore, it is for these reasons that the committee has sought to take action to disallow the by-law. I do apologise to members but, as this by-law was gazetted such that it is due to come into effect on 12 July, it is therefore the strong will of the committee that this disallowance motion be taken to a vote in this chamber today.

Motion carried.