Legislative Council: Thursday, March 23, 2023



District Council of Mount Remarkable By-Laws

Adjourned debate on motion of Hon. I. Pnevmatikos:

That by-law No. 4 of the District Council of Mount Remarkable concerning local government land, under the Local Government Act 1999, made on 19 April 2022 and laid on the table of this council on 17 May 2022, be disallowed.

(Continued from 22 February 2023.)

The Hon. C. BONAROS (15:43): On behalf of the Hon. Irene Pnevmatikos I will speak to the motion. In relation to the motion that by-law No. 4 of the District Council of Mount Remarkable be disallowed, there are two issues of concern with clause 5.8.5 of the Mount Remarkable by-laws.

This provision prohibits a child aged five or older from accompanying a caregiver of the opposite sex into a public convenience on local government land in the Mount Remarkable area. A reasonable person in the position of a caregiver to a child aged five years would not be able to leave that child outside of a public convenience while the caregiver used the public convenience nor allow the child to use a public convenience unaccompanied by the caregiver. This would be the case regardless of the gender of the caregiver or of the child and would also apply to many children older than five years.

The committee was concerned that setting an age limit for a child who may enter toilets set aside for the opposite sex does not have regard for the variations in maturity and needs of children. Further, the use of the language 'the opposite sex' or 'the opposite gender' may be discriminatory to any person who does not identify as either male or female.

By way of background, the local government land by-laws of the majority of councils in South Australia contain similar provisions in relation to who may enter a major public convenience, with variations in relation to the age of the child permitted to enter the public convenience with an adult of the opposite sex. Accordingly, the Legislative Review Committee undertook an inquiry pursuant to section 12 of the Parliamentary Committees Act 1991.

The committee heard evidence from the Commissioner for Children and Young People, the Commissioner for Equal Opportunity, representatives of South Australia Police and the Chief Executive of the Department for Child Protection, Ms Fiona Ward. The committee shared the evidence it heard on the by-law with the Local Government Association of South Australia. On 18 February 2022, the committee wrote to the Hon. Josh Teague, then Minister for Planning and Local Government, advising of the committee's concerns and providing the Hansard evidence of the witnesses who appeared before the committee.

The Office of Local Government and the LGA, in consultation with the committee, developed alternative wording for a model clause to regulate entry into public conveniences on local government land that would address the concerns raised in evidence before the committee. The Office of Local Government and the LGA informed the committee that the policy that underpins the wording in the model clause is as follows:

a person that is intersex, transgender or gender diverse using the toilet;

the age—exemption should be updated to use the term 'vulnerable person';

a vulnerable person should be able to enter the assisting person's toilet;

a disability-based exemption should be updated to use the more inclusive term 'person with disability';

a person with a disability or a person assisting them may use any toilet;

in all cases, a person may enter any toilet in the case of genuine emergencies.

Following the deliberations of the committee, the ensuing report entitled Inquiry into Local Government Land By-Laws—Public Conveniences was tabled. The committee prepared the report to inform parliament of the concerns raised by the evidence before the committee. The report also serves to notify councils of the issues and to provide councils with the options to draft local government land by-laws that address the important issues set out in the report. The committee's report was forwarded to the current Minister for Local Government who, in his correspondence, reported:

support for the inclusive model clause;

that the Office of Local Government had informed the local government Governance and Policy Office Network of the report and its recommendations; and

that the LGA had similarly informed councils and legal practitioners and representatives that assist councils with drafting by-laws of the report and recommendation.

The District Council of Mount Remarkable local government land by-law was not considered by the committee until some time after the receipt, and the committee resolved to give notice of a motion to disallow on 7 September 2022 as the consideration deadline was 8 September 2022. This action provided an opportunity for the committee to raise any concerns and issues in relation to the toilet clause in the local government by-law issued by the council.

The council was advised by letter dated 13 September 2022 that the motion to disallow on 7 September 2022 was a holding motion concerning its by-laws on the grounds that it may trespass on personal rights and liberties. The council was also provided with the model clause, prepared with the Office of Local Government and the LGA in consultation with the Legislative Review Committee. By letter dated 10 October 2022, the council wrote back to the committee and advised that it would refer the matter to the newly elected council and obtain instructions.

In its subsequent letter, dated 4 January 2023, the council indicated that it had made a decision and that they were not prepared to amend the by-law. On that basis, the Legislative Review Committee decided to proceed with its notice of disallowance for consideration by the chamber.

Debate adjourned on motion of Hon. I.K. Hunter.