LOCAL GOVERNMENT
HOW THE STATE EXERCISES POWER OVER LOCAL GOVERNMENT DALE MAZZACHI, PRINCIPAL, NORMAN WATERHOUSE LAWYERS AND CHRIS ALEXANDRIDES, SENIOR ASSOCIATE, NORMAN WATERHOUSE LAWYERS
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n 2015, a South Australian motorist refused to pay a parking ticket issued by the City of Adelaide. She elected to be prosecuted. She then refused to recognise the Magistrate’s jurisdiction to hear the matter, or to even approach the bar table, on the basis that she was present in Court “as a woman and […reserved her] unalienable rights to this matter.”1 In 2020, another South Australian motorist provided an even more succinct argument. When asked for his plea in respect of a parking offence, he replied “I am a man.” This was treated as a plea of not guilty. The man then sat in the public gallery and remained mute during the trial.2 These individuals, like many other individuals who have sought to rely on the so-called “flesh and blood” defence and other pseudo-legal arguments (often involving the Australian Constitution, the Queen and/or the United Nations), were unsuccessful. Local government councils, being (among other things) the entities who make and enforce laws and impose of taxes, are no strangers to pseudo-legal arguments such as these. Indeed, aggrieved persons often deny the very existence of local government. Although the enabling legislation for local government in South Australia has, since 1929, provided that it is not necessary “to prove the existence” of any council in any legal proceedings, we assure readers that local government does indeed exist. Anybody seeking authority for the existence of local government in South Australia need look no further than the judgment of His Honour Justice Nicholson in McDougall v City of Playford [2017] SASC 169.3
8 THE BULLETIN October 2020
His Honour succinctly outlined the City of Playford’s existence in that case as follows: The City of Playford is a local government council constituted pursuant to and in accordance with the provisions of the Local Government Act 1999 (SA). The power of the Parliament of the State of South Australia to have passed the Local Government Act rests with section 5 of the State Constitution, that is, The Constitution Act 1934 (SA). Section 5 adopts as the powers of the Parliament those formerly exercised by the Legislative Council constituted pursuant to section 7 of the Act of the Imperial Parliament, 13 and 14 Victoria, Chapter 59 entitled “An Act for the better government of Her Majesty’s Australian Colonies”. It has never been doubted that the power thus vested in the Parliament of the State of South Australia is one “to make laws for the peace, welfare and good government of [the State]”. This is a plenary power subject to limitations on its exercise derived from the Australian Constitution. The establishment of local government councils in South Australia, including the City of Playford, is undoubtedly within the legislative competence of the Parliament of South Australia. By now, readers will hopefully agree that local government has some form of valid legal existence in South Australia. However, what might be interesting to some is the fact this existence is owed purely to the Parliament of South Australia. Councils in other states similarly exist only because of the plenary powers of state parliaments. Presently, the primary Act of Parliament under which local government councils are constituted in South Australia
is the Local Government Act 1999 (special constitutive Acts also apply to the City of Adelaide and Roxby Downs Council). Electoral processes for councils are set out separately in the Local Government (Elections) Act 1999. These laws can be (and frequently are) amended simply by the ordinary procedures of Parliament. In 1980, the Parliament of South Australia inserted section 64A into the Constitution Act 1934 (State Constitution). That provision “guarantees” the continued existence of elected local government in South Australia. Local government had of course existed in South Australia before the insertion of section 64A into the State Constitution—the City of Adelaide Municipal Corporation was in fact the first municipal corporation in all of Australia (formed in 1840 but insolvent by 1843 with all its possessions sold off by public auction)—but the insertion of section 64A into the State Constitution was, as the Minister of Local Government at the time the Hon CM Hill MLC put it, “major acknowledgement of the maturity and the place of local government in our system of government”. The provision4 was enacted with bipartisan support. Eagle-eyed readers will note all that section 64A of the State Constitution promises is some form of elected local government. What local government looks like is entirely up to the Parliament of South Australia. Further, despite the purported “guarantee”, Parliament is still expressly permitted to abolish local government upon the votes of an absolute majority of the members of each House of Parliament. No referendum is required. In parliamentary debates, equally attentive member of Her Majesty’s then Labor opposition, Hon NK Foster MLC,
