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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-06-22 Daily Xml
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RUNDLE MALL

The Hon. S.G. WADE (17:01): I move:

That By-law No. 6 of the Corporation of the City of Adelaide concerning Rundle Mall, made on 10 February 2011 and laid on the table of this council on 22 February 2011, be disallowed.

A new Corporation of the City of Adelaide By-law No. 6 Rundle Mall, tabled on 22 February 2011, prohibits a range of activities and requires permits for a range of others. I gave notice of this disallowance on 3 May. I have concerns with two particular clauses of the by-law. I have met with Adelaide City councillors to discuss the regulation and received communications from the council's chief executive and its legal adviser, but my concerns remain and I have the support of my party to move this disallowance motion.

The first concern relates to preaching permits. Members will be aware of the significant distress caused to people in Rundle Mall by some street preachers and that the council is in conflict with those preachers to try to get them to cooperate with the permit scheme. I presume this regulation was drafted in that context, although it does not substantially change the pre-existing provisions in relation to preaching. The preaching permit provision is section 2.19. Basically, it provides:

No person shall without permission in Rundle Mall or in the vicinity of Rundle Mall:

preach, except in any part of Rundle Mall or the vicinity of Rundle Mall where the council has, by resolution, determined this restriction shall not apply.

As Liberals, the opposition is keen to protect the rights of individuals, including freedom of speech and freedom of religion. In my view, this provision clearly breaches freedom of religion. I do not object to a provision requiring persons making public addresses to seek a permit. However, the targeting of certain forms of public addresses by reference to their content is objectionable. The fact that the content in this case is identified as religious content is an infringement of freedom of religion.

My second concern relates to the clause in relation to 'annoying'. The relevant provision is clause 3.1 and it makes it an offence to annoy, offend or interfere. It reads:

No person shall in Rundle Mall or in the vicinity of Rundle Mall:

offend, annoy or unreasonably interfere with any other person's use of Rundle Mall.

I am concerned that 'offend' and 'annoy' are subjective elements and make the offence far too broad. A person may be offended by any manner of behaviours. For example, a person might find a body piercing offensive and annoying. Another person might find a person walking down Rundle Mall wearing a burqa offensive or annoying. Another person might find public displays of affection offensive or annoying or, shall we say, public affection between people of the same gender. The scope for complaints to be laid under this provision is incredibly broad. This was confirmed for me by advice that was given to me by the council's lawyer. It reads:

Both 'offending' and 'annoying' are entirely subjective activities. What one person finds annoying (or offensive) another may not and, as such, the addition of the word 'unreasonably' before these words would in no way alter the subjective nature of the offence (what constitutes an 'unreasonable' offence or annoyance would likewise be a 'subjective' assessment in and of itself).

In policing this clause, officers would have to have regard to the particular concerns of the individual who claims to have been annoyed or offended before determining whether to take action under the by-law. If an officer does not consider the activity causes offence or annoyance to an individual, that officer may still be bound to enforce the provision but may choose not to enforce based on the concept of triviality. Essentially, the offence provision is not limited by any scale other than triviality. Courts would no doubt adopt a similar approach when considering a complaint laid under the clause.

Later in the advice, it states:

In all cases dealing with the enforcement of the criminal law, the discretion of the individual investigating officer, the initiating officer and the enforcement agency will be most relevant.

We are being told that the key threshold it needs to get over is triviality. In a multicultural society, I think that it would be extremely unlikely that a council officer would deem a person's complaint to be trivial, considering the diversity of cultural experiences people bring to Rundle Mall. For example, I would be presuming that South Australians from a multicultural perspective would have a lower tolerance for public displays of affection than South Australians who do not have that background.

Whilst a South Australian who is not from a multicultural background may regard it as trivial to complain about somebody kissing or hugging in a public place, I would think it would be reckless for a council officer to say that that was a trivial matter. I believe my view is actually supported by the council lawyer's advice and, on that basis, I am very concerned that these provisions are too broad.

I appreciate that these are not novel provisions. They reflect similar wording used in a precursor by-law that dealt with local government land for the Adelaide City Council. The fact that it is old law does not make it good law. If I could, almost by way of an aside, reflect on what I am learning through the Legislative Review Committee. It seems that the local government authority in South Australia provides template by-laws, which are then adapted by individual councils for their own circumstances, which I think is a very onerous responsibility on the LGA. The LGA is drafting, effectively, a whole raft of laws for the South Australian community, and I am not sure that it is getting the level of oversight it might need.

One of the possibilities this parliament might consider is whether the Legislative Review Committee might engage the LGA at the time it is developing its template by-laws to see whether we as a parliament might be able to provide assistance to ensure that the sort of scrutiny principles the Legislative Review Committee is required to apply to both by-laws and regulations can be considered at the drafting phase and not at the disallowance phase.

I certainly respect the authority of local government as a distinct tier of government in our constitutional arrangements, but we do have a responsibility under legislation to review by-laws. I think it would be of benefit to the Adelaide City Council and local governments generally if issues such as these could be highlighted at an early stage.

Perhaps a stronger case is evident in the movable signs area. The Hon. Russell Wortley as Chair of the Legislative Review Committee has been through the saga of the movable signs. There must be dozens of regulations, some of which the committee did not object to but there were others about which we did feel that we needed to raise concerns. Some of those were due to the legislative actions of individual councils, and some of them could be traced back to the template. I think the work of the LGA, councils and the Legislative Review Committee could be facilitated perhaps by interaction on the templates.

Bringing myself back to the particular by-law, my view is that having an offence relying on a subjective element without any objective threshold provides insufficient reassurance to Rundle Mall users that they will not be subject to prosecution for reasonable acts, and involves too great a prosecutorial discretion in the hands of council officers. I suggest that either a reasonable test needs to be applied to 'offend or annoy' or the regulations should rely only on interference.

I have also taken the opportunity to discuss these issues with the member for Adelaide, Rachel Sanderson (an extremely able and intelligent young woman), and she indicated that she has significant concerns about the maintenance of public order in Rundle Mall. She relayed to me cases of what she thought were overly aggressive, intrusive political protests, particularly ones that targeted particular retailers.

I must admit that is not something I had expected. I could certainly imagine people using Rundle Mall to campaign for their cause, but she as the local member is aware of individual businesses being targeted either because of the products that they sell or because of the international links they have either through ownership or association. She is aware of protests becoming far too intrusive, to the point of interrupting the retail activities of lawful businesses.

She also highlighted an issue which had come up with council officers. The honourable member for Adelaide and the council officers indicated that there does seem to be a disconnect between the responsibilities of council officers to apply by-laws and the role of SAPOL in applying by-laws. A lot of these activities would become SAPOL responsibilities when they become a disruption of the public order. However, my understanding is that there have been, shall we say, discussions rather than agreement between SAPOL and the council, and we seem to have a problem with enforcement of by-laws in Rundle Mall.

I also learnt through this consultation about some of the realities of local government which slightly disturbed me. Local government rightly publishes their by-laws, and those by-laws are supplemented by policies so that people have clarity as to what the council policy is in relation to that by-law. However, I understand that it is not uncommon for council officers to go back to council and say, 'Well, that was your by-law and that was your policy, but this is the situation: what do you think we should do?'

With all due respect, I appreciate that local council is not a full parliamentary scheme, but I think it takes it too much towards the mixing of the legislative role and the enforcement role. It would be incomprehensible for the police commissioner to come to us and say, 'Well, what do you think I should do about the Summary Offences Act?' or what have you. I would encourage councils to take the opportunity to amend by-laws and policies, because they are in the public domain and people know what they are getting, rather than relying on, shall we say, side comments and notations in the margin that emanate from council meetings.

I must admit I have taken the opportunity to share some thoughts on issues that have come up through this consultation, but I reiterate that my main concern is in relation to two particular clauses in by-law No. 6. I think it is an opportunity for council to perhaps look more thoroughly at the whole by-law, and I indicate that the opposition would certainly be happy to play its part to improve the by-law. After all, Rundle Mall is an asset for the whole state, the city council is a very noble custodian of it and we want to do all we can to make sure that is a prosperous retail precinct and a thriving social hub for both the city and the state.

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

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