The process of making by-laws By David Robertson

Endnotes 1 Justice Peek’s judgment in that individual’s unsuccessful appeal to the Supreme Court includes a number of general remarks under the heading ‘Antidotes to the bane’ which may assist any readers who encounter unrepresented litigants relying upon similar meaningless jargon: see

Adelaide City Council v Lepse [2016] SASC 66. 2 Rossiter v Adelaide City Council [2020] SASC 61. 3 There were a number of purported legal ‘issues’ at play in that case, including allegations that

Magistrates Sprod had committed treason; as

Justice Nicholson put it, “the appellant’s contentions are so wide ranging and misconceived as to defy reasoned responses short of a short lecture series”. 4 Section 64A of the State Constitution provides as follows: 1. There shall continue to be a system of local government in this State under which elected local governing bodies are constituted with such powers as the 5 Parliament considers necessary for the better government of those areas of the

State that are from time to time subject to that system of local government. 2. The manner in which local governing bodies are constituted, and the nature and extent of their powers, functions, duties and responsibilities shall be determined by or under Acts of the Parliament from time to time in force. 3. No Bill by virtue of which this State would cease to have a system of local government that conforms with subsection (1) of this section shall be presented to the Governor for assent unless the Bill has been passed by an absolute majority of the members of each House of Parliament. Relevantly, the District Council of Coober Pedy is presently governed by an Administrator appointed by the Governor, and the Roxby Downs Council has always been governed by an 6

7 8 9 10 11 12 Administrator although legislation contemplates that it may hold elections one day. See South Melbourne City Council v Hallam (1994) 83 LGERA 231, 243. Even in Victoria, where the constitutional protection for local government is stronger than in South Australia, there is no doubt about the state parliament’s power to exercise ultimate oversight its local counterparts. Paterson v MacPherson (2011) 109 SASR 547. Local Government Act 1999, ss 201 and 194. Local Government Act 1999, ss 42-43. Local Government Act 1999, s 271A. Local Government Act 1999, s 63. Noting the negative outcomes for State Governments of various persuasions in New South Wales (circa 2017), Western Australia (circa 2015) and Queensland (circa 2012) who have proposed or implemented substantial local government reform since the end of the last decade.

The process of making by-laws

DAVID ROBERTSON

The recent rejection of the City of Marion’s cat by-law by the Legislative Review Committee of Parliament has raised the question of just how by-laws are enacted.

Local Government is granted power to make by-laws providing they are within the ambit of the Local Government Act and ‘for the good rule and government of the area’ (sections 246 - 252). But it is not just a case of passing a resolution at a Council meeting, there are several steps that have to be taken beforehand. A proposed by-law starts with a motion before Council for consideration. If passed, Council starts the process with a request to Council staff to investigate, consult ratepayers and report back. This may take six months or more. Staff may well check with other Councils who have or may be moving towards a similar by-law. Council may then decide to proceed more formally. This would include legal advice as to whether the proposed by-law is within Council’s powers, does not conflict with other legislation and assistance with drafting. Councillors and staff are not expected to be draftsmen.

Council may then decide to proceed with the legislative requirements for enacting the by-law.

At least 21 days before resolving to make the by-law, Council must make copies of the proposed by-law available for public inspection, without charge and during ordinary office hours, at the principal office of the Council, and so far as is reasonably practicable on the internet.

By notice in a newspaper circulating in the area of the Council, it must inform the public of the availability of the proposed by-law and set out the terms of the by-law or describe in general terms the by-law’s nature and effect. When the Messenger Newspaper was in circulation (sometimes delivered) this was sufficient but now it is only available online. Many older people who have cats may not have a computer. Even those who purchase The Advertiser may not read the public notices. The Council newsletter could be a substitute but would it meet the requirements of the Act?

Council must give reasonable consideration to a written or other acceptable submission made concerning the proposed by-law. This is especially relevant if the by-law is controversial, as in the case of cat control or curfew.

Before the resolution can be considered Council must obtain a certificate from a legal practitioner certifying that the Council has the power to make the by-law and is not in conflict with the Act. The practitioner is not required to comment on the merits of the by-law but in the case of a by-law made under section 90 of the Dog and Cat Management Act 1995, Council is required to submit the by-law to the Dog and Cat Management Board for comment. The Board cannot change the by-law but the Council must consider any comments.

When the by-law finally comes before Council for a decision there are special requirements. At least two-thirds of the members of Council must be present and it must be passed by an absolute majority. Then it will come in to force not less than four months after it has been published in the Gazette unless it is disallowed by the Legislative Review Committee of Parliament.

This what happened to Marion’s cat by-law – the Legislative Review Committee rejected the law because, according to Environment Minister David Speirs, it went beyond the scope of the Dog and Cat Management Act. So, what does Marion do now? Can it simply amend the by-law to comply with the Committee’s objections or must it start again from scratch? That could take a long time. Minister Speirs has indicated that the State Government would work on developing an overarching by-law for local councils to adopt. B

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