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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-07-06 Daily Xml
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District Council of Mount Remarkable By-Laws

Mr FULBROOK (Playford) (11:14): It is with disappointment that I move:

That by-laws made under the Local Government Act 1999, entitled Local Government Land for the District Council of Mount Remarkable, made on 19 April 2022 and laid on the table in this house on 17 May 2022, be disallowed.

The SPEAKER: The motion has been moved; is it seconded? In fact, the Deputy Leader of the Opposition is seeking the call momentarily.

The Hon. J.A.W. GARDNER (Morialta—Deputy Leader of the Opposition) (11:14): Apologies if I am missing a standing order here, but can I move that debate be adjourned so that this matter can be considered in more detail?

The SPEAKER: You could.

The Hon. J.A.W. GARDNER: I move:

That the debate be adjourned.

The SPEAKER: Is it seconded?

An honourable member: Yes, sir.

The SPEAKER: Very well. I will have to put the question because it is seconded and it has been moved.

Motion negatived.

Mr FULBROOK: Before I go into detail, I will begin by reminding the house and interested parties that the Legislative Review Committee has been set up to inquire into, consider and report on subordinate legislation referred to it under the Subordinate Legislation Act 1978. Each sitting week we hear ministers table reams of regulations from their departments, along with numerous by-laws made by councils. These are, in turn, considered by the committee in which I, along with the members for Light and Flinders, sit as members.

From the outside looking in, this constant process of referral may appear as a formality but this could not be further from the truth, and is a responsibility that we all take very seriously. Through the aid of the committee secretariat, each piece of subordinate legislation is reviewed under a process where it is considered against seven key scrutiny principles. Rather than take up too much of the chamber's time, I suggest interested parties seek further details on these principles online. That said, I bring to your attention to principle No. 4 which I quote as follows:

Whether the regulations are in accord with the intent of the legislation under which they are made and do not have unforeseen consequences.

I am sorry that I am not sorry if this comes across as dry, and stress that this background is important to consider against the actions before the house today. I particularly refer to the latter part of this scrutiny principle that compels the committee to consider if there would be any unforeseen circumstances against any tabled regulation. The committee has formed the view that section 5, in particular part 5.8, ticks this box.

Section 5 of the regulations relate to the prohibited activities that cannot occur on local government land. It is prescriptive to a plethora of restricted activities around areas such as playgrounds, smoking, fishing and, of course, toilets or public amenities, which is addressed in section 5.8 of the by-law.

The regulations prescribe that it is a prohibited activity to enter any public convenience that is set aside for use by the opposite sex, except where, under section 5.8.5.1, a child under the age of five years, accompanied by an adult person of that other sex and/or under 5.8.5.2, to provide assistance to a disabled person. Supporting documents provided by the council make it clear that the by-law would be policed by inspection, the issuing of warnings, expiation notices or by prosecution if necessary.

As I understand, section 246(1)(g) of the Local Government Act 1999 outlines that a breach under the by-law can result in a fine of up to $1,250. Given this, it becomes very clear that there are a number of reasonable circumstances that may permit someone from the opposite sex to enter a designated toilet. This could range from a genuine emergency, but the most pressing deficiency in this instance revolves around the need to accompany a child over the age of five years who, for a number of reasons, may be in need of the assistance of an adult. As a parent, it is my strong view that it should not be a crime to act in the best interests of my child but, unfortunately, this by-law prevents this from happening.

I know that there will be voices keen to stress the actions we undertake today are motivated by political correctness gone wrong, but I do not feel that this is the case. The fact remains that age is not an appropriate reason to be in breach of a by-law when a parent or caregiver is acting in a reasonable manner to ensure the safety of a child.

Casting our minds back to the Legislative Review Committee's report on public conveniences tabled last September, it rightly suggests that a reasonable person in the position of a caregiver to a child of five years would not leave that child outside a public convenience, nor allow that child to use the convenience unaccompanied. I remind this house that the by-law we are discussing provides the exception for children under five years of age.

On its own, the reason I outline is solid enough to have this by-law disallowed. That said, the committee also has concern on the use of language that could be considered antiquated, which, on this occasion, relates to reference of the opposite sex in section 5.8.5. Before anyone jumps to conclusions, it is worth noting a separate scrutiny peak principle compels the committee to review subordinate legislation to determine whether regulations unduly trespass on the rights previously established by law. Through a legislative lens, this is achieved if the person seeking to use a public convenience does not identify as either male or female.

I have read the work of a journalist who has tried to paint this issue as political correctness gone wrong, and I do not accept this. Irrespective of the individual value we place on the second concern that I have outlined, the fact remains that the by-law set by the District Council of Mount Remarkable remains defective because age is not an appropriate barrier to determine if a child should or should not receive assistance from an adult.

There are several other factors I feel should be cleared up before this matter is given over to the house for its consideration. It should be pointed out that the District Council of Mount Remarkable is not alone when it comes to having similar by-laws. In the last parliament, the efforts of the previous Legislative Review Committee initially identified this concern through the tabling of a similar land-related by-law from the City of Tea Tree Gully. Under the Chair of the Hon. Nicola Centofanti from the other place, the previous committee began an inquiry into this concern, which was then carried over by the new committee, of which I am a member.

As councils gradually update their by-laws, it became apparent that the defective elements were widespread and it was therefore decided that a model by-law should be developed. As mentioned, this was tabled in September last year and has been on the public record for councils and the public to note. While I will not pre-empt the position of the opposition, it is worth noting that the initial work of the inquiry was overseen by a committee controlled by either Liberal or former Liberal members and that the tabled report does not contain a dissenting statement.

I mentioned right at the start that I am disappointed it has come to the point where there is need to have this by-law disallowed. I say this on the basis that efforts were made by Minister Brock to reach out to the council and negotiate on this matter. It must be stressed that the work of the committee led to the development of a model by-law. While encouraged and supported by strong evidence, it is not binding on councils to adopt, but it does plot a course on how to shape laws to avoid the concerns that I have outlined.

Councils are at liberty to use the report how they see fit, but they, like any responsible government, must adopt laws that are functional and without unintended consequences. I understand that pointing out the obvious defects to the council CE would not sway him on the need to develop something more appropriate. This is a big concern, as it casts a shadow over who exactly runs the District Council of Mount Remarkable.

I understand the chief executive has been involved in political parties in the past, and I cannot help feel that this is more a political exercise than him working in the best interests of the community. It should be noted that the council has stated that they were not prepared to take any further action until the by-law was up for renewal again in 2029. In the interim, they suggest they would not police any alleged contraventions.

Six years to get this right is a long time to wait. This compromise is as flimsy as the wafer-thin promise not to do anything to fix up the problem until then. I can appreciate it costs money to develop by-laws, but I remind the house that that is what councils are supposed to use ratepayers' money to do. It is therefore my view—and I hope the view of this house—that waiting six years to fix this problem does not cut the mustard.

We are now at a point where I feel it is imminent that this by-law will soon cease to exist. Had there been a genuine need to work through the issue, it could have remained on the Notice Paper until a replacement set of laws was developed and adopted. The house should note that this is what is happening with other councils that have considered this glaring error and are now acting to address it.

Before any accusations are made that we as a committee, and possibly the parliament, are stifling the democratic right of a council to govern, please ask yourself: who will scrutinise council by-laws if we do not? It is my view that a defective law has been identified and, while I feel that a negotiated pathway would have been more desirable, this council has chosen to avoid consensus and now must address the consequences. While it is regrettable, I have outlined why the by-law should be disallowed. I commend this action to the house.

Mr TELFER (Flinders) (11:25): I rise to speak on this motion that has been moved by the member for Playford, as both the shadow local government minister and a member of the Legislative Review Committee. There are two different parts to the words that have been said on this motion already by the honourable member. Some strong words have been used, and I hope the honourable member reflects in time that this sort of process perhaps is not the time to try to big-note or score political points—it is a procedural matter that is within the remit of the Legislative Review Committee, yes, but on pieces of legislation, regulation or council by-laws that the committee sees are defective or unworkable.

As someone who has connections with local government all around the state, and as someone who totally respects the capacity and jurisdiction of local government to make by-laws which appropriately reflect their communities, I am disheartened to say the least at the way the government is pushing through this disallowance motion. The work that was done in the previous term by the Legislative Review Committee was really important work. There were inconsistencies around the state with council by-laws, particularly relating to public conveniences, on the specification of the age of children who would be allowed to go into a toilet of the opposite sex, along with their carer or parent.

That work was done in recognition that perhaps the age as designated, as has been mentioned, of five years, some of eight and some of 10, may be something that needs appropriate attention, and the attention of the council was drawn to it. The additional work that was then included, purely based on the submission of the Equal Opportunity Commission to that Legislative Review Committee, really is bordering on the roles and responsibilities of the Legislative Review Committee. It becomes ideological rather than practical, rather than workable, rather than looking at whether or not by-laws are defective.

To disallow a by-law because of the words 'the opposite sex', or to look to disallow a by-law because it includes gendered pronouns like 'he/him' or 'she/her' I think is well beyond the remit of this place to be considering. I am disappointed that we have got to this point and we are spending time in state parliament debating these subject matters. It really is incredible that we have got to this point.

I have the utmost respect for councils to totally consider and reflect their communities, to put in place by-laws and appropriate measures within their community as the democratically elected representatives—the mayors and councillors of those areas—to appropriately reflect the views of their people. That is exactly what the District Council of Mount Remarkable has done. They have not been so headstrong, as the member seems to portray, that they have not been open to looking at changing the wording, trying to get it to adapt to reflect the concerns of the Legislative Review Committee, but still the number one thing they are trying to reflect is the views of the people of the District Council of Mount Remarkable.

That is why the opposition is against this moving forward as a disallowance motion. I understand the process to put a disallowance motion on the Notice Paper to hold it at a point where the Legislative Review Committee and the council can consider by-laws as a whole, but to get to a point where this parliament is disallowing a council by-law, which is an incredibly detailed document that covers a whole heap of things but purely specifically based on arrangements with their public conveniences, I think is a ridiculous state of affairs.

I hope that in time there is an appropriate reflection of the government that local government has been appointed as their decision-making body within their jurisdiction to make decisions that reflect their community. There are 68 councils all around the state. If there is a piece of legislation or a council by-law that the government believes should be consistent across the whole state, bring it as legislation here to this place.

Council have the capacity to make their own by-laws because they are the ones responsible for their communities, they are the ones responsible for policing these by-laws within their communities, and they are the ones most responsive to the needs of their communities. If it is something important enough to disallow, to say, 'Thou shalt not pass this expectation of state parliament,' how about you just bring in a law across the whole state—because that is exactly what the expectation is starting to show here. If councils do not have the capacity to build appropriate by-laws into their system, what is the use of them having the capacity to do so?

Each community is different and, although there is a challenge that councils have to reflect the ongoing needs of their community, it really does fall on them as democratically elected members of their community and the responsibility is theirs. This is why, as I said, I am disappointed that the government has chosen to push through with this disallowance motion with no regard for the work that the District Council of Mount Remarkable has actually done to try to adapt their by-law to reflect perhaps more appropriately what the expectations of the Legislative Review Committee are.

If we get to a point where a council cannot have a by-law that specifies gender, I think it is a sad state of affairs that reflects poorly on us as a society, and this is why the opposition is going to vote against this. I hope that the independent jurisdiction of councils in their council by-law making is not undermined by this arrogant approach by the government.

Mr TEAGUE (Heysen) (11:32): I rise as a former member of this particular committee to raise a concern. I am conscious that the Legislative Review Committee is a standing committee of another place. It has members from this chamber, and I have been one in the past.

To underscore the importance of the role and function of the Legislative Review Committee, it is essentially one of assessing delegated subordinate legislation against a criterion of whether or not the relevant delegated support in the legislation has been made within power. Is it ultra vires? Is there some reason why, if enacted, it would suffer a defect of being unable to be enacted because of a lack of power? That is the core function of the Legislative Review Committee.

I am not a current member of the committee. As a member of this house, now being asked to determine a question that appears to have come along on the basis of all sorts of merits propositions, there is a cause for concern—and I bring it to the attention of all members of the house—if the Legislative Review Committee is now to be seen traversing matters of merit.

I wholeheartedly endorse the contribution of the member for Flinders just now. There are ample means by which the house can go about legislating matters on the merits. Indeed, the house can go about dealing with these things in a number of ways, but the Legislative Review Committee, let's remember, has a core function. It is expected to deal with, for that reason, a very large volume of delegated subordinate legislation of all kinds with a view to determining primarily: is it made within power? So I share the concerns of the member for Flinders that the house is being moved to deliberate on what appears to me to be a question that is characterised as much by a question of merits as anything else.

Mr FULBROOK (Playford) (11:35): I thank the opposition for their contribution to this particular debate. In relation to comments made by the member for Flinders, he said that my motivation, indeed the government's, was to score political points. I take this opportunity to remind people, as I said in my opening address, that Minister Brock took the opportunity to meet with the CE of the District Council of Mount Remarkable in order to reach a compromise. To the best of my knowledge, I was informed that the CE was not willing to take him up on the offer. To suggest that we have acted in an attempt to score political points is something that I do not accept.

I also do not accept that our motivation is driven by the need to shape by-laws that are woke in perspective. The fact remains that, irrespective of the issues raised by the member for Flinders, this by-law remains defective. It has an unworkable component to it that sets age as a reason to preclude adults from helping their children if they are over the age of five years. With that in mind, even though I would have much rather preferred that the council took the opportunity to work through this—I have had no information to suggest they have done otherwise—I am quite happy to ensure that this motion is accepted by the house.

An honourable member interjecting:

The SPEAKER: Order!

Motion carried.

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