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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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LOCAL GOVERNMENT (MODEL BY-LAWS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 November 2011.)

The Hon. S.G. WADE (16:32): I rise to speak on behalf of the opposition on the Local Government (Model By-Laws) Amendment Bill 2011. I have only been in this council for five years, but this is certainly the first time that I have experienced what we are experiencing with this bill, which is notice given one day, tabled the next and given passage through this council on another. I do note, though, that in this case the council is united in facilitating that. It will mean that there is less scrutiny given to this bill than would normally be given.

It is in that context that I spoke to the minister and sought some undertakings in relation to the bill. First of all, that the council as a whole would agree to progress. I understand that that has been forthcoming. Also, that the bill not progress in the House of Assembly until the next sitting week, which will allow some more scrutiny. Finally, if there are any other issues that arise, that the government would favourably consider amendment in the House of Assembly. I thank the minister for those undertakings. We as the opposition appreciate the need for the by-law and therefore the bill to facilitate the by-law.

Currently, section 250(4) of the Local Government Act 1999 prevents a council from adopting a model by-law and exercising the powers under it until the 14 days of the disallowance period under the Subordinate Legislation Act 1978 have passed and the model by-law has not been disallowed. We understand that this bill does not significantly reduce the scope for scrutiny. It still allows for disallowance by either house in that 14-day period.

The minister quite rightly highlighted the similarity to the early commencing process under the regulation-making power. This council is concerned about the overuse of the early commencing regulations power but it is becoming increasingly standard practice in South Australian governments, and I do not blame this government in particular. It is a trend by executives not only in South Australia but elsewhere. The minister was quite right that, with an early commencement certificate, a regulation would take effect from the day that it is made and would be active for the disallowance period. In that sense this model by-law process is similar.

I would suggest to the council that this process is still better than the early commencement regulation process because not only would the minister need to get the model by-law approved by cabinet, the relevant council would also need to sign off, so you have two different bodies giving the model by-law scrutiny. We think that in the context of that interaction it is a relevant process. After all, whilst the minister indicated that this is the first model by-law since the model by-law process was established in the year 2000, that does not mean it will be the last.

As the minister indicated and obviously the house is well aware, this bill is primarily to facilitate the early implementation of a model by-law for the management of pedestrian malls gazetted on 13 October this year. In his second reading explanation the minister said:

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.

I appreciate that the minister said that on advice, and it is technically correct. The minister was referring to the reference to the Full Court of the Supreme Court of South Australia which was handed down in August 2010. The by-law was promulgated in February 2011, three months after the District Court judgement. The District Court judgement was Corneloup v Adelaide City Council. It was a judgement of His Honour Judge Stretton on 25 November 2010. At paragraph 163 it says:

Accordingly, that part of paragraph 2.1 which bans haranguing, canvassing and preaching, and paragraph 2.8, are invalid.

The by-law that was previously disallowed by this council had the word 'preaching' in it. It was promulgated after that District Court judgement. I stress that I appreciate that the minister would have been passing on advice from the council, but I humbly suggest to the house that the council was putting a spin on this one. I believe they should be more diligent in their by-law making processes. They knew in November that the courts found that phrase offensive, yet they promulgated it in a by-law in February. That was just to correct the record in terms of history.

The opposition does agree with the government that the by-law will assist in restoring order in Rundle Mall. We do not believe it will be sufficient, and that is why we put in another bill that provides other assistance to the council. In that context, I welcomed the comments of the minister last evening where he gave an undertaking to myself, and by implication to the parliament, that he is willing to work to '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'.

I appreciate that the government is more hopeful that the by-law will resolve the issues in Rundle Mall than the opposition is, but I welcome the opportunity to work with the government on alternative tools. The minister is hoping that they may not be necessary and, if that is the case, so be it. However, if they are necessary, I do not think it hurts for the parliament to have done some thinking about what are appropriate tools to make available to councils to maintain public order.

With those comments I indicate that the opposition will support this bill. We do have a number of questions at the second reading stage, but they are by way of clarification rather than being conditional on our support.

The Hon. M. PARNELL (16:40): It is certainly out of the ordinary for us to be dealing with a bill in such a short time frame. However, I think the circumstances of this case do warrant urgent treatment. Yesterday the Legislative Council debated the Statutes Amendment (Public Assemblies and Addresses) Bill 2011, and I do not propose to repeat my comments of yesterday, but clearly it is the same topic that is before us today, and that is how to handle inappropriate expressions of free speech.

The bill before us seeks a quick fix to a problem that has now been evident in Rundle Mall for some months; that is, the problem of a group of people, commonly known as the street preachers, haranguing, harassing and berating passersby. As I said yesterday, I have been in Rundle Mall on a Friday night and I have seen what is going on. You have a range of people preaching through loudhailers, and the like, and you have a larger group of people trying to disrupt their activities. By the side I think I counted around 20 police, waiting to see if things get out of control and they need to step in. It is not an ideal situation.

The difficulty the Greens had with the bill before us yesterday was that we could see that it was open to abuse and that a wide range of areas could effectively be declared off limits for the use of public address systems. However, the bill before us seeks to provide an avenue for, if you like, the fast track introduction of model by-laws, and the one of interest to us today relates to pedestrian malls.

This bill does not suffer the same problems as did the bill before us yesterday, that is, that this bill is of more limited application. I said yesterday (because we had been given advance notice that this was coming before us today) that the Greens were likely to support this approach, but we were not ruling out the idea of more intensive legislative intervention over this problem. That is consistent with the approach the Greens have taken in this place. On a couple of occasions now I have introduced a protection of public participation bill, and we have done that because we do not have a clearly established regime of rights here in South Australia. We do not have a bill of rights, and therefore we often need do need to legislate on a case-by-case basis to ensure that our rights are preserved, including our constitutional right of free speech in relation to political matters.

Whilst we might be sympathetic to a legislative fix, that does not mean we will support any legislative fix, obviously. The one we had yesterday we did not think was quite up to the task, and we also need to keep open a suspicious eye because most legislation that comes through in this field is to diminish rights rather than to enshrine or increase them. For now the Greens are happy to be debating this bill as a matter of urgency. We are inclined to support it. We will get into committee and I will be interested to hear the debate there because the actual model by-law itself may not be as clear as it needs to be, but we can deal with that in committee. For now the Greens are happy to support the bill.

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (16:44): I thank honourable members for their contributions to this debate. I also thank the opposition and honourable members for agreeing to prioritise this important bill. I also thank the Hons Stephen Wade and Mark Parnell for their considered and informed second reading contributions.

The model by-law was developed at the request of the Adelaide City Council following its inability to control the activities of certain groups within the mall. I also thank the Lord Mayor, Mr Stephen Yarwood, for his assistance and hard work. I note that the government, the opposition, the Adelaide City Council and other honourable members want to see a solution to this matter and a balance to the expectations and interests of all mall users.

Passing this legislation today will enable the Adelaide City Council to adopt and implement the model by-law before Christmas of this year. Nevertheless, I am keen to work with the opposition, other honourable members and the Adelaide City Council in looking to develop a longer term solution to this matter. I have given an undertaking to the Hon. Mr Stephen Wade that if this model by-law does not seem to fulfil expectations then we will look at developing further legislation.

We will also make sure that we consult reasonably widely with the Adelaide City Council, the Law Society, civil liberties groups and the police so that we can develop appropriate legislation that will see an end to this. Hopefully, this will work, but we have to consider that when we are dealing with people like the street preachers, who are very litigious, you can only do what you can and hope that it will fix the problem. It is a real problem, and most of us have seen the issues there. Once again, I thank the council for their contributions and for their support in getting this bill prioritised.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I suspect that all of my contributions are on clause 1, Mr Chair. My question for the minister is: who drafted the model by-law?

The Hon. R.P. WORTLEY: The by-law, I imagine, would have been drafted through the Attorney-General's office. There would have been input from the Crown Solicitor's Office. It was endorsed by cabinet and then endorsed by the Executive Council.

The Hon. S.G. WADE: Were the Local Government Association and the police consulted in relation to the by-law?

The Hon. R.P. WORTLEY: I believe it was the Adelaide City Council, not the LGA or the police.

The Hon. S.G. WADE: Considering the concern that has grown about the police being either able or available to enforce council by-laws in areas such as smoking, littering, adults in children's playgrounds and now in relation to amplification controls, is the government committing the police to enforcing the model by-law?

The Hon. R.P. WORTLEY: We are seeking to have a meeting with the local commander of the precinct in which the Rundle Mall is in. We are looking at discussing this with the mayor, myself and hopefully the Minister for Police to try to set the guidelines about what support they will put into this. You have to remember that the police seem to be a little bit hesitant to some extent because of the litigious nature of this. I understand that a number of police have been sued personally, so this is why we think it is important that we meet with them to discuss this whole issue.

The Hon. S.G. WADE: I appreciate that the minister is the minister for local government and not the Attorney-General, but I do appreciate that he has had discussions with the Attorney-General about the state government appeal in the case of Corneloup v Adelaide City Council. My understanding, and I do not know if I heard this from a government source or a local government source, I could be wrong but my understanding is that the state government appealed to the High Court in relation to the Corneloup case.

It does not focus so much on the meaning of political and governmental communication, more in terms of the level of how explicit state laws and council by-laws need to be in recognising exemptions for political and governmental communication. So, it is not in terms of the content of the right as much as the construct of the statute. My question is predicated on that assumption. In that context, I note that the Adelaide Hills Council has a new by-law 3, 9.14, which relates to canvassing. It provides:

Subject to clause 14, convey any advertising, religious or other message to any bystander, passer-by or other.

It says subject to clause 14. Clause 14 deals with exemptions, and the paragraph offering exemptions for canvassing relates to lawful communication on government and political matters. To me, that suggests that the Adelaide Hills Council, at least, is picking up this implication that, through the Cornerloup case, the Supreme Court expects a more explicit recognition of that implied constitutional right.

I know that my question is predicated on a few presumptions, but I did not see in the model by-law an express recognition of the implied constitutional right, so I wonder whether that was done deliberately, waiting for the possibility of a High Court appeal; or would it have been better to have taken a more conservative approach, which I think the Adelaide Hills Council has done?

The Hon. R.P. WORTLEY: I thank the member for his question. There are a number of issues that arise out of that. All I can say is that it was drafted through the Attorney-General's Office. What I can do is take that question on notice. This will not be debated in the lower house until then, so I will get the answers back to you prior to the debate in the lower house.

The Hon. S.G. WADE: I thank the minister. That may well need to be the case with a number of these questions. I appreciate that, as local government minister, he is coordinating matters in the area of the Minister for Police, the Attorney-General and so forth. This may be a question of a similar nature. Considering the constitutional sensitivity around these issues, did the government obtain constitutional or legal advice on the public assemblies bill that we discussed last night, or the model by-law that is related to today's bill?

The Hon. R.P. WORTLEY: We did have legal advice on the constitutional standing of the bill we debated yesterday. I went through that with you today. In regard to the model by-law, I will put that on notice and have the Attorney-General answer it prior to it being debated in the lower house.

The Hon. S.G. WADE: What was the legal advice on the bill last night? Was that from the Crown Solicitor's Office?

The Hon. R.P. WORTLEY: Yes, it was.

The Hon. S.G. WADE: I respect the minister's determination that this by-law be in place by Christmas—and I welcome that—but, of course, there is another step. If this bill is passed tonight, the council would need to endorse it. Do we know when the council would be in a position to do that, considering the progress of the house? The bill would not be able to progress through the House of Assembly until the week beginning 22 November, and I am not sure about council meeting schedules.

The Hon. R.P. WORTLEY: This house was probably the one that was going to take the longest to get this bill through. The intention was that, if it passed this council today, we would contact the Lord Mayor and the CEO of the Adelaide City Council, advise them of the appropriate date that we believe it will be debated and advise them to call a council meeting ASAP to endorse it.

The Hon. S.G. WADE: My attention was drawn to clause 3.5 of the model by-law. It was actually drawn by comments that the Hon. Gerry Kandelaars and the minister himself made. I think in the Hon. Gerry Kandelaars' case, it was in relation to yesterday's bill and, in relation to the minister, I think it was in his second reading speech on this bill. The relevant clause is 3.5 of the model by-law. It is part of a section of the model by-law that deals with prohibited activities. It reads:

3.5—Interference with Permitted Use

A person must not in a pedestrian mall or in the vicinity of a pedestrian mall interrupt, disrupt or interfere with any other person's use of the pedestrian mall which is permitted or for which Permission has been granted.

For the benefit of the Hansard I make the point that 'permitted' is with a small 'p' and 'Permission' is with a big 'P'.

An honourable member interjecting:

The Hon. S.G. WADE: Sorry? Capital. It reminds me of former premier Brown who described the URL as 'SA dot'. I do not have a pen licence. For fear of being ruled out of order, I will get back to my point. So that members do not lose the thought, the capital 'P' in 3.5 is with the word 'Permission' and the non-capital 'p' is associated with the word 'permitted'.

The Hon. I.K. Hunter interjecting:

The Hon. S.G. WADE: Lower case. The by-law does give a definition of (upper case P) Permission, which says that:

Permission means the permission of the council or such other person as the council may by resolution authorise for that purpose given in writing prior to the act, event or activity to which it relates.

One presumes that the upper case 'P' is being used for a purpose and that the lower case 'p' is also being used for a purpose; I am just wondering what 'permitted' might mean in that context. To explain my logic, presumably if we are talking about 'Permission', with a capital 'P', relating basically to the permit activities—because section 2 is 'activities requiring Permission', and they are all permit-based activity—I am wondering about the activities that one can undertake in Rundle Mall which are 'permitted' but for which one does not require an upper case 'P' Permit.

The Hon. R.P. WORTLEY: You have me fascinated now. I will take that on notice and get back to you.

The Hon. S.G. WADE: I appreciate the minister doing that. In that context, I wonder if I might then put a series of questions on notice?

The Hon. R.P. Wortley: Yes.

The Hon. S.G. WADE: Ian is just keen to move us on. Ian wants to get another bill through; he has one bill through and now he thinks he is a legislator. Does the word 'permitted' in this clause refer to any activity that is not prohibited or does not need permission? Does this mean that a person who is in the mall, complying with all aspects of council by-laws, must not be interrupted, disrupted or interfered with in any way? For example, if shopping is permitted in Rundle Mall, does a person who hands a handbill to a person while they are shopping commit an offence under this by-law because they have interrupted, disrupted or interfered with them in any way? I know that Channel 7 will be interested, because they love their vox pops. Does a vox pop down Rundle Mall interfere, disrupt or interrupt a person doing an activity that is permitted?

Also, where two people have received Permission—and this is a capital 'P' Permission; in other words, two Permit carriers—and are undertaking activity that would otherwise be prohibited by the by-laws, and one interrupts the other, what would be the consequence? That is the end of my questions about small 'p' and capital 'P'.

This is a new question, not on notice. During his second reading explanation yesterday the minister raised the fact that the subordinate legislation act allows the minister to provide for the early commencement of regulations where the responsible minister signs a certificate of early commencement and gives reasons for it to the Legislative Review Committee. As the minister notes, no such power applies for council by-laws. My question is: did the government consider an early commencement certification process for council by-laws rather than the process included in the bill?

The Hon. R.P. WORTLEY: The process that was contained in the bill was seen to be the most appropriate course of action to take.

The Hon. S.G. WADE: I am wondering if the minister is aware of any proposals for any more model by-laws, other than the model by-law that was promulgated on 13 October.

The Hon. R.P. WORTLEY: There is nothing in my thought process to look at another model by-law, but that is not to say that if an issue arises and we believe it is necessary, naturally we will look at it.

Clause passed.

Remaining clauses (2 and 3), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (17:01): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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