Normans Briefly

Welcome

Welcome to our first Briefly for the new financial year. We are proud to announce the launch of our new website which showcases a new look and increased functionality.

Don’t miss out on our Safari at Adelaide Zoo next week. Our annual conference takes place on Friday 5th August and is not to be missed. Click here to register now.

We are happy to announce the return of Partner, Felice D’Agostino from maternity leave. Felice rejoins the Local Government Governance and Regulatory Services team. We would also like to farewell Partner, Martha Savva and wish her well as she takes up her new role at the Ombudsmans office.

The Environment and Planning team have a new member, Jacqui Shepherd and we welcome her to Norman Waterhouse. She joins us having had three and a half years practical experience at another leading Adelaide law firm.

Our guest writer is Jeff Tate, Chief Executive of the City of Onkaparinga. In his article Jeff explores the opportunities that exist for South Australian local government to develop new-world responses to old-world issues.

You can jump straight to view each article on the E-News page of the website by following the links below, or continue reading. Our new format is also features an improved print layout, so you can print and keep articles for future reference.

Confidentiality Orders - Is Your Council Compliant?
Federal Anti-Discrimination Laws Expanded
Amendments to the GST Act - Implications for Councils' Authorisations and Permits
Are your Expiation Notices Compliant?
Narrowing the "Reasonable Expansion" of Non-Complying Development
City of Port Adelaide Enfield v Grant Carlin (ERD-10-346)
 
Where are the Thinkers? - Guest contributor Jeff Tate

Should you have any feedback on our new website or this briefly please email normans@normans.com.au .

Confidentiality Orders - Is Your Council Compliant?

A recent investigation by the Ombudsman has brought to light some potential shortcomings in the way councils make and review confidentiality orders pursuant to Sections 90 and 91 of the Local Government Act 1999 (the Act).

This is a timely reminder to councils to ensure they understand the process and comply with the procedure set out in the Act for discussing a matter in confidence and keeping a document confidential. These requirements include: 

• ensuring there are valid legal grounds to make an order excluding the public in order to receive, discuss or consider information or a matter in confidence (Section 90(3));
• noting in the council minutes the order excluding the public and the grounds on which it was made including, where relevant, the nature of the public interest considerations supporting the making of the order(s) (Section 90(7));
• making a specific confidentiality order in relation to any document (or part) relating to a matter dealt with by the council on a confidential basis, that the council intends to be kept confidential (Section 91(7));
• specifying;

• the duration of the confidentiality order; or
• the circumstances in which the confidentiality order will cease to apply; or
• the period after which the confidentiality order must be reviewed

(Section 91(9)(a));
• recording in the minutes the making of the confidentiality order, the grounds on which it was made and the duration of the confidentiality order, or the circumstances in which the order will cease to apply, or a period after which the order must be reviewed (Section 91(9)(b)); and
• reviewing all confidentiality orders that operate for a period greater than 12 months at least once in every year (unless the order itself specifies a shorter time for review) (Section 91(9)(a)).

If a confidentiality order is to continue past its defined period, it is best practice to make a new order.  A fresh consideration of the grounds for making the order must be undertaken.  Remember that the council may delegate the power to revoke a confidentiality order, but not the power to make the confidentiality order in the first place.

For further information on any of the material contained in this article or to discuss your council’s confidentiality orders, please contact Felice D’Agostino on 8210 1202 or fdagostino@normans.com.au .

Federal Anti-Discrimination Laws Expanded

The Sex and Discrimination Legislation Amendment Bill 2010 (the Bill) amends the Sex Discrimination Act 1984 (Cth) to reflect recommendations contained in the Senate Standing Committee on Legal and Constitutional Affairs Report- Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality.

The Bill introduces some significant changes to anti-discrimination laws, including:

• protection from sexual harassment to apply equally to men and women;
• lower threshold requirement for sexual harassment whereby a reasonable person need only have anticipated the ‘possibility’ (changed from ‘anticipated’) that the person would be offended, humiliated or offended by the behaviour;
• equal and greater protection for men and women for discrimination relating to family responsibilities;
• breastfeeding now a distinct ground of discrimination;
• better protection from sexual harassment for students and all workers;

The Bill also creates the office of the Age Discrimination Commissioner pursuant to the Age Discrimination Act 2004 (Cth). This new role has been created, amongst other reasons, to assist employers understand and appreciate the role of young and senior employees. Implications for Employers The Bill introduces new discrimination concepts of which all employers should be familiar. This is particularly so in light of the broadened range of circumstances and behaviour that now constitutes sexual harassment. As the Commonwealth gains powers to legislate on anti-discrimination issues from international treaties, State-based employers will also be required to adhere to the amended Sex Discrimination Act 1984 (Cth).

Please contact Sathish Dasan for more specific advice about the impact of the Bill on your workplace. Sathish can be contacted by telephoning 8210 1253, or by email at sdasan@normans.com.au

Amendments to the GST Act - Implications for Councils' Authorisations and Permits

New amendments to the GST Act introduced on 24 March 2011 by the Tax Law Amendment (2011 Measures No. 2) 2011 Bill will change the way in which Councils need to account for GST in respect of authorisations to alter a road and permits to use a road for a business purpose granted pursuant to section 221 and 222 of the Local Government Act 1999 (Act) respectively.

Councils are permitted to charge for these authorisations and permits pursuant to section 188 of the Act.  Under the current provisions of the GST Act those fees and charges are not subject to GST because of a determination released by the treasury every 6 months.

Under the new system introduced by these amendments, Councils will no longer be able to rely on the treasury determination to exempt fees charged in respect of authorisations and permits from the application of GST. 

Principally, the effect of the amendments will be to allow Councils to self assess the GST treatment of a payment received in respect of a permit or authorisation in accordance with certain principles laid down by the new amendments.

As a result, Councils will now need to consider whether the fees charged for authorisations and permits fall within the definition of an Australian fee or charge, which is a new definition introduced by the amendments.

The transitional provisions of these amendments provide that the current system of fees exempted by the treasury determination will continue to apply until 1 July 2012. Thereafter it will be necessary for Councils to assess the GST treatment of these payments under the new provisions.

For further information on any of the material contained in this article please contact Mark Henderson on 8210 1200 or mhenderson@normans.com.au .

Are Your Expiation Notices Compliant?

The South Australian Ombudsman has recently reviewed some councils’ expiation notices for compliance with the requirements of the Expiation of Offences Act 1996 and the Expiation of Offences Regulations 1996. The Ombudsman found a number of defects in the form and content of some expiation notices, some of which, in his opinion, led to the invalidity of the notices.

This is a timely reminder that expiation notices issued by councils must comply with the minimum standards prescribed by the Act and the Regulations.  These requirements include, amongst others: 

• specifying that the expiation fee is payable within 28 days from, and including, the date of the notice and stating that due by date;

• if the offence involves a vehicle, addressing the notice to the owner or driver of the vehicle either by name or by registration number; and

• including a clear statement of all choices available to the alleged offender as set out in the Regulations.

Failure to comply with any requirement could expose councils to the risk that an expiation notice, if challenged, will be found invalid.

Most notably, the Ombudsman expressed the view that expiation notices will be invalid if they do not clearly and appropriately inform the alleged offender of their choices. He highlighted that a failure to note the outcome if no choice is made by the offender, and misleading statements as to when the alleged offender must exercise their options, will lead to the invalidity.

In order to ensure that they are not exposed to the risk of their expiation notices being deemed invalid, we suggest that councils review the form and content of their expiation notices on a regular basis.  Where defects are found, they should be corrected immediately.  The Norman Waterhouse Local Government Governance and Regulatory Services Team would be pleased to provide assistance with this task.

For further information on any of the material contained in this Briefly or to discuss the validity of your council’s expiation notices, please contact Kate Oliver on 8210 1226 or koliver@normans.com.au .

Narrowing the “Reasonable Expansion” of Non-Complying Development

There is a doctrine of town planning law in South Australia known as “reasonable expansion” (or sometimes “reasonable development”).  As explained in District Council of Mount Barker v Palma (2002) 120 LGERA 182 the doctrine dictates that (absent contrary intention) a list of non-complying development within a development plan is to be interpreted to refer only to new instances of listed development and not to reasonable expansions of existing listed development.

By way of example a bakery might exist within a residential zone for historic reasons.  The  zone principles might list “bakery” as non-complying.  Thus, a proposal for a new bakery within the zone would be non-complying.  However, for example, a new or replacement bread store to be used as part of the existing bakery would not be non-complying (it would instead be a reasonable expansion).

The Full Court of the South Australian Supreme Court recently examined the reasonable expansion doctrine in Development Assessment Commission v A &V Contractors Pty Ltd [2011] SASCFC 21.  The Court found that the doctrine is confined to development which does not constitute a different use (i.e. a change in the use of land).

The proposed development under consideration was the industrial processing of building waste at an existing solid landfill depot with the associated removal of useable building product and disposal of the residue as landfill. The Court found that this was an additional use (and hence a change in the use of land) which fell within the definition of “general industry” which was listed as non-complying within the relevant zone.

At [54] Kourakis J (with whom Doyle CJ and Sulan J agreed) said:

In my view, this Court should hold that the “reasonable development” [reasonable expansion] rule of construction applies only to developments which do not change the use of the land as a whole. A broader rule is not supported by the text and context of the Development Plan. The terms in which classes of development are designated as non-complying textually militates against any reading down of those classes. … In my view, the principle of construction established in Mercedes College reflects a negative implication drawn from the statutory protection of existing use rights which exempts from the prescribed “non-complying” classes of development those developments which are a continuation of that use.

For further information on any of the material contained in this article please contact David Billington on 8210 1263 or dbillington@normans.com.au .

City of Port Adelaide Enfield v Grant Carlin (ERD-10-346)

The Environment, Resources and Development Court has handed down its highest penalty yet for a significant tree offence.  His Honour Judge Costello convicted and fined Mr Carlin $22,500 plus costs of $2,060 for undertaking “tree-damaging activity” without development approval, contrary to section 44(1) of the Development Act 1993.  Mr Carlin pleaded guilty to the charge.

Mr Carlin was a commercial tree lopper who was engaged to remove a large river red gum. The tree was of good health, although had previously dropped a limb on the roof of a building underneath.  Initially, Mr Carlin mistakenly believed a development approval had been granted, although upon discovering that there was no approval he nevertheless proceeded to remove the tree.

In determining the appropriate fine His Honour took into consideration Mr Carlin’s knowledge that no approval had been issued, his familiarity with the requirement for approval, his opinion that the significant tree regime was bad law, and his overall lack of contrition. His Honour considered the offending to be towards the upper end of the scale, an appropriate penalty being $25,000. This was discounted to $22,500 on account of Mr Carlin’s early guilty plea, lack of prior convictions, initial cooperation with the Council, and his personal and financial circumstances. The maximum penalty for an offence under section 44(1) is $120,000.

For further information on any of the material contained in this article please contact James Nicolson on 8217 1342 or jnicolson@normans.com.au .

Where are the Thinkers? Article by Jeff Tate

Abstract

While we live in the 21st Century, the governmental institutions that serve us were designed in the 19th Century.  In this article Jeff explores the opportunities that exist for South Australian local government, a sector which is rightly focused on community outputs and outcomes, to develop new-world responses to old-world issues.

Article

Many of the issues facing local government over the coming years have been relatively well documented.  They include Constitutional recognition, developing and maintaining a robust financial base, financial sustainability and finding relevant ways to communicate and engage with communities at a time of great change in communication technologies.

I was reminded recently during a teleconference for planning a LGA conference that practical, on the ground solutions are a key strength of the system of local government we have in Australia.  There is a focus on getting things done, of providing outputs and outcomes for local communities.

While this is a strength to be retained and even developed further, there is another dimension which I think we also need to consider.

One thing I found during my studies in local government is the lack of scholarly literature (textbooks, papers, etc.) dealing with our issues.  Most of the written material about local government seemed to emanate from the United Kingdom, Europe or the United States of America.

Textbooks generally come from academics and we have very few academics with a focus on local government in Australia.  So who and where are the thinkers for our sector?

The other recent event that made me think about this was a presentation by the current Thinker in Residence under the State government’s program.  John McTernan has been tasked with providing advice to the State government about new ways of delivering public services where the users are much more involved in designing those services.

A point that John made was that our system of government was designed in the 19th Century (as were most of the institutions that support it) and doesn’t necessarily fit that well with 21st Century society.  In a short presentation, he challenged us with some sharp observations about the provision of public services.  One observation that stuck in my mind was the question whether risk management (generally regarded as an essential management tool) is about reducing the risks for our citizens and users of our services, or whether it is about reducing our organisational risks.  This raised the bigger question of who or what we are serving – the citizen/service user, or the organisations that make up our sector?

I realise that the Thinkers in Residence program has both supporters and detractors.  However, I wonder whether there is room for our sector to have its own ‘thinkers’-type program.  An unashamed program of taking ourselves away from the everyday problems and issues that will always be there in one form or another, to look at the bigger questions confronting society, such as climate change, water, energy, migration, social cohesiveness and our economic future in a volatile global environment.

Perhaps we should have a local government ‘thought leaders’ program where we engage key people from around the world not to just investigate and report on issues, but to also tap into the vast human resources available within the local government sector.  These ‘thought leaders’ could take people with them in finding solutions to new problems and new solutions to old problems.

We could also use the ‘thought leaders’ program to develop our own policies on the big (and not so big) issues.  It could represent a bottom-up approach to policy development by the level of government closest to the people – quite a contrast to us responding to the top down approaches of State and Federal governments.

Combining the outcomes from a ‘thought leaders’ program with our strength in practical, on the ground solutions, would position local government very well for ongoing relevance in the future of our communities.

We are blessed with strong universities in South Australia with which we could partner to deliver a ‘thought leaders’ program.  This may also lead to further research by the universities and to opportunities for knowledge and skills development of staff and elected members.

In order to be successful, it would need to be an ongoing program with formal structures and agreements in place as well as adequate resourcing.

It’s worth thinking about!

Editor’s Note:

In mid-October 2011, Jeff will, in conjunction with George Karzis, Special Counsel at Norman Waterhouse, be presenting a free lunchtime seminar for the Australian Institute of Administrative Law (SA Chapter) addressing the practical administrative law issues affecting South Australian local government.  He will further develop the ideas discussed in this article, in light of recent challenges faced by the sector.  The date, time and location for the seminar will be confirmed shortly.  Watch this space!

The views expressed in this article are Jeff’s own personal views, and do not necessarily represent those of his employer.

Biography – Jeff Tate

Jeff Tate has been Chief Executive Officer of the City of Onkaparinga since it was created through the amalgamation of the Cities of Happy Valley and Noarlunga and part of the District Council of Willunga in July 1997. The City of Onkaparinga is the largest council in South Australia, with a population of over 160,000 and covering an area of 518 square kilometres.

Prior to this Jeff was CEO with the City of Marion and Deputy Secretary General with the Local Government Association of South Australia.  He has worked for a number of Councils in both South Australia and Victoria.

He holds a Master of Business Administration degree from the University of South Australia and is a Fellow of the Australian Institute of Company Directors and a Fellow of Local Government Managers Australia.

Jeff’s particular work interests include strategic planning, change management, sustainability and its application,  integration (within and between organisations and spheres of government), community self reliance and innovative solutions.  He has been involved in several projects that have been recognised through national or state level innovation awards.

Jeff was appointed to the Zero Waste SA Board in May 2004, and retired in 2010. Zero Waste is a statutory body with responsibility for reducing the amount of waste to landfill in South Australia.

Jeff resigned from his position as Chief Executive Officer of the City of Onkaparinga, effective from the end of October 2011.  He plans to consult on strategic planning and problem solving in the private, public and not-for-profit sectors.