Norman Waterhouse
   
Norman Waterhouse

Normans Briefly

In this issue

Welcome to the May 2013 edition of our Local Government Briefly.

This month we welcome two new practitioners. Rob McDonald joins us as a Special Counsel to the Mining and Resources Team, and John Watson joins us as a Solicitor in the Environment and Planning Team.

Rob McDonald was recently General Counsel to a listed oil and gas company.  Rob has extensive experience working in law firms and in-house roles. Rob is an experienced senior lawyer who has worked in both the mining and oil and gas industries in multiple Australian jurisdictions.

Please click here to view Rob's profile.

John Watson is a recent graduate who holds bachelor degrees in both Law (with First Class Honours) and Architectural Studies, and a Graduate Diploma in Regional and Urban Planning. Many of you may remember John from his previous role as a town planner with Burnside and Adelaide City councils.

Please click here to view John's profile.

The Norman Waterhouse Annual Local Government Conference is fast approaching. Join us on Friday the 9th of August at the Adelaide Entertainment Centre.

Achieving excellence in local government is about leadership, teamwork and, importantly, knowledge.

Don't miss the opportunity to develop your knowledge at the Norman Waterhouse Local Government Conference, where you'll hear the latest updates on the most important legal issues for councils.

As the leading advisor to the sector, Normans will help you play by the rules and identify if you are bending them. The conference program will feature three streams: Property, Infrastructure and Development, Governance and Regulatory Services and Environment and Planning. With almost 250 attendees each year this event offers a great opportunity to network with key decision makers in the local government sector.

Date: Friday 9th August 
Location: Adelaide Entertainment Centre

Complete conference program online soon.

>   Local Government – Regulations under the new Public Health Act
>   Planning and Development - Council criticised for not obtaining legal representation in legal proceedings
>   Governance – Big Brother is NOT watching you
>   Data protection and technology – are you exposed to privacy risks?
>   Contracting – Who are you really dealing with?
>   Local Government – 'Preachers' principles applied against Sydney protestors
>   Local Government – New penalty enforcement scheme a step closer
>   Environment & Planning – ERD Court serious about pool safety

article image

Local Government – Regulations under the new Public Health Act

As part of the implementation of South Australia’s new public health regime – the centrepiece of which is the South Australian Public Health Act 2011 (SAPH Act) – the State Government has announced that the existing regulations under the Public and Environmental Health Act 1987 (SA) will be re-made in broadly similar terms under the SAPH Act.

There will, however be some changes under the new regulations. The changes to the general regulations will be minimal, and will not affect Local Government operations. The changes to the Legionella regulations will also be minimal, with the only practical effect on Local Government being the shift from specific notices to the new general notice power under the SAPH Act.

The changes to the wastewater regulations will be more extensive. The new wastewater regulations will be the manifestation of the long-running review of wastewater regulation conducted by SA Health, the Local Government Association and South Australian councils.

Aspects of councils’ regulatory powers are to be altered under the new wastewater regulations. The new general notice power of the SAPH Act provides councils with a more flexible tool for seeking compliance, and replaces the more limited ‘maintenance order’ power. Furthermore, a new power of ‘inspection and testing’ will be established under the new wastewater regulations, giving authorised officers the ability to compulsorily enter premises – along with such assistants as may be necessary – and undertake an inspection and/or test in relation to a wastewater system. Councils will also gain the power to require operators of wastewater systems which could adversely affect public or environmental health to provide an expert report on any matter.

Administrative processes are also altered, including more stringent requirements in relation to applications. Additionally, the technical aspects of the new wastewater regulations will reflect new technologies and national standards.

The new general Legionella and wastewater regulations are expected to come into operation on 31 May 2013. The changes to the public health regulations are intended to be minimal in order to assist the transition to the SAPH Act and the most significant changes – being the changes to the wastewater regulations – have already been the subject of extensive consultation and training with Local Government.

However, councils should note that a formal review of the regulations under the SAPH Act is planned once the SAPH Act is fully implemented, meaning that more substantial changes to the regulations will occur at some point in the future.


For more specific information on any of the material contained in this article please contact Paul Kelly on 08 8210 1248 or pkelly@normans.com.au or Dale Mazzachi on 08 8210 1221 or dmazzachi@normans.com.au.


article image

Planning and Development - Council criticised for not obtaining legal representation in legal proceedings

In a recent Environment Resources and Development Court decision involving an appeal against an enforcement notice issued under section 84 of the Development Act, 1993, a council was criticised for not obtaining legal advice or representation.

Background

The Council had issued a section 84 notice requiring removal of a transportable building from a rural property. The building was formerly a dwelling, but the owners intended to use it in conjunction with a proposed intensive animal keeping development as an office and workers’ amenities building.

The appellant, who was legally represented at the hearing, sought suspension of the operation of the direction to remove the building.

Essentially, her reasons were that she was well advanced in formulating a proposal to establish a poultry farm on the land, which the transportable building would form a part of. As such, the building was only being temporarily stored on the land. Moreover, it was being stored in a position where it was not causing any appreciable impacts.

The Council resisted the application for suspension. It was represented at the hearing by a planning officer, who also gave evidence in support of the Council’s case.  

Ultimately, the Court found in favour of the appellant. The Court decided to suspend the operation of the direction pending lodgement and assessment of an application for the poultry farm.

Council’s approach to the hearing

But it was perhaps the Council’s approach to the hearing which is of most interest.

The Court said:

“It is fair to remark that the Court was surprised that the Council, it is understood due to funding difficulties, chose to not involve legal advice and representation in this matter and relied upon the well intentioned efforts of [name of council officer], including as advocate in the hearing. I found her evidence and submissions such as they were, at times to be confused and confusing and not precise or of much assistance to the Court.”

While funding difficulties are an unfortunate reality facing councils, failure to obtain legal advice at an early stage of litigation, or expected litigation, may expose council litigants to a risk of greater cost in the longer term. 

Section 84 appeals are in a costs jurisdiction of the ERD Court. An unsuccessful party can usually expect to be ordered to pay the legal costs of the successful party.  

This means that unless a council litigant has good grounds for opposing an application of this kind, it runs the risk of being ordered to pay the appellant’s legal costs, even though the council may elect not to have legal representation itself. Those costs may be substantial.

As such, it may be imprudent for council litigants to embark on any substantive step in litigation without first obtaining legal advice about the strength or weakness of their legal position. As the saying goes, a stitch in time saves nine.

For more specific information on any of the material contained in this article please contact Peter Psaltis on 8210 1297 or ppsaltis@normans.com.au.


article image

Governance – Big Brother is NOT watching you

In a recent NSW case of SF v Shoalhaven City Council [2013] NSW ADT 94, the Administrative Decisions Tribunal (Tribunal) has found that Shoalhaven City Council’s (Council) CCTV surveillance breaches the Information Privacy Principles set out in the Privacy and Personal Information Protection Act 1988 (NSW) (the NSW Act).

In terms of whether South Australian has similar laws, the simple answer is ‘no’. There is no equivalent to the NSW Act in South Australia.  The Privacy Act 1988 (Cth) does not apply to Local Government.

That said however, it is perhaps important to consider any ‘privacy policy’ that your council may have in effect in the context of this recently decided case. This serves as a good reminder for council’s to review their CCTV policies to ensure they comply with their policy position and the legislation that does exist in South Australia relating to this issue.

Background

The Council operated a CCTV program in their area. There are signs indicating the presence of CCTV camera coverage throughout the Council area. Up to this point in time, the recorded images were retained on a computer hard drive located at the local police station. It was important to note that the general public cannot view any of the live footage.

Under an agreement between the NSW Police and the Council, the NSW police can apply to the Council for copies of the captured images.

Reason why action was brought

SF (the Applicant) originally requested that the Council carry out an internal review of the CCTV policy under the NSW Act. However, there was no evidence to confirm whether the Applicant was identifiable from any of the footage captured by the CCTV cameras. Therefore, the application was dismissed by the Council.

Consequently, the Applicant brought proceedings in the Tribunal as permitted under the NSW Act. The Applicant argued that the CCTV surveillance was intrusive and coercive in nature and he did not consent to being subject to CCTV surveillance.

Findings

Under the NSW Act, a council may only use CCTV camera to collect personal information that is directly related to a function or activity of the council. Also, the collection of that personal information must be “reasonably necessary” for that function or activity of the agency.

The Councils Crime Prevention Plan

The Council successfully argued that it has the authority to collect personal information as part of its crime prevention plan. It was considered CCTV surveillance was reasonably necessary to effectively implement the plan.

Even though the Tribunal found that the Council’s CCTV program was valid, the Tribunal found that the Council breached a number of Information Protection Principles prescribed by the NSW Act. These breaches are listed below:

  • Appropriate Signage - Not all of the CCTV cameras had appropriate signage to inform the public that their images were being recorded;
  • Was it being used for its purpose - The CCTV footage was not recorded for the “crime prevention” purpose but rather as additional information for the Police (expert evidence proved that CCTV surveillance did not prevent crime); and
  • Secure access - Council did not have appropriate procedures in place for access to the footage (i.e. a generic password would allow access to the footage).

Impact of the Tribunal’s Decision

The Tribunal found that the Council is to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice. The Council also has to provide a written apology to the Applicant and steps to be taken by the Council to remove possible future breaches.

Whether the Council will appeal the decision of the Tribunal remains to be seen. As it stands, the decision was handed down by a single member of the Tribunal (as opposed to a full sitting of the Tribunal) and therefore, some commentators might suggest it does not carry the same weight as a decision from the full sitting of the Tribunal. Also, the NSW Act is more prescriptive than any legislation currently in force in South Australia regarding this issue and therefore the decision could be viewed by many as being moderately ‘persuasive’. Council operations, so far as we are concerned as they relate to CCTV usage, in South Australia have not been similarly tested in this regard.

What could this mean for councils?

Councils are advised to review their existing privacy policies (if they have one) and satisfy themselves that they are operating within their policy, particularly in relation to any arrangements that they have with SAPOL.

This is a reminder for councils in South Australia to ensure that their CCTV programs comply with the purpose set out in their strategic management plans (for example ‘town safety’, ‘damage to infrastructure’, ‘anti graffiti’ may have reference to the council’s ability to ‘monitor’ or record data to limit vandalism and crime generally etc).

Additionally, councils should ensure safe and appropriate practices are followed by SAPOL regarding the access of the CCTV footage.

Norman Waterhouse has experience in drafting CCTV and security policies, Memoranda of Understandings with SAPOL, and providing risk assessment to councils who currently implement CCTV surveillance in their area.

For more specific information on any of the material contained in this article please contact Trevor Gormley on 8210 1246 or tgormley@normans.com.au or Ganesh Krishnan on 8217 1395 or gkrishnan@normans.com.au.


article image

Data protection and technology – are you exposed to privacy risks?

The recent case of SF v Shoalhaven City Council [2013] NSWADT 94 (discussed above) provides a timely reminder of the potential liabilities councils face under privacy laws. Although the legislation in that case applied strictly to the New South Wales jurisdiction, and given that local government in South Australia is not bound by similar legislation or the Privacy Act 1988 (Privacy Act), many councils, pursuant to their privacy policies, bind themselves to the National Privacy Principles and the Information Privacy Principles of the Privacy Act, as well as the specific requirements of those policies.

Councils are obviously aware that privacy issues do not just relate to the use of CCTV cameras as discussed above. Councils need to consider the privacy implications of data retention of its residents’ and ratepayers’ personal information and the subsequent use of that information.

Councils are operating in a commercial landscape where technological advances are allowing councils to function in a more innovative and efficient ways. As such, councils need to be wary of how information is held and used in relation to software, programs and networks. In the past we have advised the Local Government Association (LGA) and a number of councils on the appropriateness and involved risks of data being held in foreign countries.

With the launch of SA Connected, the State’s ICT Strategy, which was recently released for consultation (see here), and a general movement towards open data (see for example, the US Government’s recent statement here), government is being encouraged to make anonymised data available to entrepreneurs and innovators with a view to having those people use the data for the public good.

For example, the LGA is currently involved with many councils in the Unleashed competition, the Adelaide node of the federal GovHack initiative, to promote and encourage digital entrepreneurs to develop innovative programs and applications using government data to bring long term benefits to the community. To facilitate the competition, adequate data protection has been sought through licensing arrangements.

To keep up with the commercial environment they operate in; councils need to consider the privacy issues associated with holding and using ratepayers’ personal information and ensuring that appropriate consents and documentation are in place to comply with their privacy policies and procedures.

For more specific information on any of the material contained in this article please contact Mark Henderson on 8210 1220 or mhenderson@normans.com.au.


article image

Contracting – Who are you really dealing with?

After a few recent queries it may be timely to provide a reminder about legal entities, in the context of preparing and executing documents. 

While these queries arose in the context of property documents specifically, the below information is generally relevant to all agreements.

Business names

It is common for companies and natural people to operate businesses under business names.  A business name must be registered unless it is an entity’s own name.  Business names are now managed by the ASIC as part of a national scheme and are contained in a register that may be searched.

For example, Snow White operates a landscaping business under the registered business name “Blooming White”. 

In this instance, the legal entity operating the business is Snow White in her personal capacity.  The business name “Blooming White” is not a legal entity.  It will be the name “Snow White” that must appear in agreements such as leases or services contracts and Snow must execute these documents.  However the business name will appear on invoices and often on other documents.  You might see it written as “Snow White T/A (trading as) Blooming White ABN 12 345 678 901”.   

Trusts

In basic terms, a trust is a device by which one person holds property for the benefit of another person.  It is a construct of equity, which is a body of law that has developed over time based on ethical concepts and that supplements and corrects the common law.  

A trust is not a legal entity in its own right and cannot own property or enter into contracts.  Rather, it is the company or person who has been appointed as the trustee of the trust that is the entity that legally owns the property (albeit on behalf of the beneficiaries of that trust) and can enter into contracts relating to that property. 

The trust deed establishing the trust will specify the trustee and their powers.  Trusts and trustees are also governed by legislation.

For example, the trustee of The Three Bears Family Trust is Goldilocks Family Trust Company Pty Ltd.   In this instance, the relevant legal entity is Goldilocks Family Trust Company Pty Ltd not The Three Bears Family Trust.  You will sometimes see this written as Goldilocks Family Trust Company Pty Ltd ATF (as trustee for) The Three Bears Family Trust.  It is Goldilocks Family Trust Company Pty Ltd that will be listed on the title to any land held by the trust and must execute contracts relating to trust property, in accordance with the  execution requirements for a company (see below under the heading “Execution”).  It will generally not be evident from a title search that the land is held on trust – although sometimes you will see the words “with no survivorship” appear after the names of the registered proprietors, which means the estate or interest is held by them as trustees.

Partnerships

A partnership is a relationship that exists between people carrying on a business in common with a view to profit.  

For example, Jack Horner, Jack Beanstalk and Jack Flash have formed a partnership (known as “The Goose Brothers”) and own and operate a vet clinic under the terms of a partnership agreement they have entered into.  The partnership leases the clinic site from Jack Horner, who owns the land in his personal capacity.  In this instance, the lease is in the names of Jack Horner as the lessor and all three of Jack Horner, Jack Beanstalk and Jack Flash as the lessee.

Execution

Following on from the legal entities is the issue of how an entity may validly execute documents.

A company may execute in several ways:

  • Pursuant to Section 127(1) of the Corporations Act 2001 a company may execute a document without using a common seal if the document is signed by:
    • Two directors of the company; or
    • A director and a company secretary of the company; or
    • For a proprietary company that has a sole director who is also the sole company secretary - that director.
  • Pursuant to Section 127(2) of the Corporations Act 2001 a company with a common seal may affix the seal to the document and the fixing of the seal must be witnessed (in accordance with the above execution requirements). There is no longer any legislative requirement for a company to have a seal.
  • Pursuant to Section 126 of the Corporations Act 2001 a company may execute a contract through an agent acting with the company’s express or implied authority. Such agents could include CEOs, managing directors or operations managers, but care should be taken when relying on this section.
  • Under a power of attorney, where the company has appointed a person in writing to be its attorney for particular purposes. If a document executed under power of attorney is going to be registered with the Lands Titles Office (LTO), that power of attorney must first be registered.
  • Pursuant to a resolution of the directors giving authority to a person to execute (this is fairly uncommon).

The signature of a natural person is usually witnessed, with the witness signing and printing their own name. 

If the document is going to be registered with the Lands Titles Office, there are strict requirements in relation to how a person must execute.  The witness is required to include their name, address and daytime telephone number as well as their signature.  In witnessing the signature they are required to declare that they either know the person or have been satisfied as to their identity and there are strict penalties (noted on the document) in relation to improper witnessing.

A natural person may also grant a power of attorney and the same registration requirements apply to the power of attorney if the document being executed by the attorney is to be registered with the LTO.

For more specific information on any of the material contained in this article please contact Yari McCall on 8210 1265 or ymccall@normans.com.au.


article image

Local Government – 'Preachers' principles applied against Sydney protestors

A recent Federal Court decision has upheld the validity of notices issued by the City of Sydney prohibiting protestors from camping overnight in a public square. The decision in O’Flaherty v City of Sydney Council [2013] FCA 344 follows the High Court’s decision in Attorney-General (SA) v Corporation of the City of Adelaide (2013) 295 ALR 197 (Street Preachers Case), which concerned the Adelaide City Council’s regulation of the activities of street preachers in Rundle Mall through by-laws.

Members of the loosely organised ‘Occupy Sydney’ movement camped for several nights in Sydney’s Martin Place in protest against socio-economic inequality. This camping was deemed unlawful by notices posted in Martin Place by the City of Sydney under the Local Government Act 1993 (NSW). O’Flaherty – a protestor – was charged under that Act for failing to comply with a public notice.

O’Flaherty argued that it was ultra vires to post such a notice, as it infringed upon freedom of political communication and freedom of association.

The case exhibited many similarities with the Street Preachers Case - a group was assembled in a public pedestrian area, was communicating a political message and their presence was such that it contravened local laws. In this case, the local council enforced the law through the posting of notices.

Accordingly, reasoning argued by the Adelaide City Council (instructing Norman Waterhouse Lawyers) and accepted by the High Court in the Street Preachers Case was also applied to O’Flaherty’s case. The Court held that the despite the fact the protestors were engaging in political communication, the law was nevertheless enforceable because it was not levelled at political communication, but rather was intended to address and was reasonably appropriate and adapted to addressing, the legitimate ends of public safety and preserving the ability of all members of the public to use Martin Place.

With respect to freedom of association, the Court found that that no freestanding right to freedom of association exists, but rather freedom of association may only exist as a corollary to the right of freedom of political communication. Because O’Flaherty’s arguments regarding freedom of political communication failed, the Court did not consider it necessary to examine any purported right to freedom of association.

The O’Flaherty case demonstrates the importance of the Street Preachers Case, a High Court precedent that is binding on all other Courts in Australia and which confirms the breadth Council by-law making power. The O’Flaherty case reaffirms the power of Local Government to enact by-laws which incidentally burden political communication in the achievement of legitimate ends.

For more specific information on any of the material contained in this article please contact Dale Mazzachi on 08 8210 1221 or dmazzachi@normans.com.au or Paul Kelly on 08 8210 1248 or pkelly@normans.com.au.


article image

Local Government – New penalty enforcement scheme a step closer

Last year we informed our Briefly readership of an initiative by the Attorney-General’s Department to establish a new statutory office, the Penalty Enforcement Officer (PEO). The function of this office would be to recover fines and expiation fees from fine defaulters.

We signalled that the establishment of the office of the PEO would involve some significant amendments to Expiation of Offences Act 1996 (SA) (EO Act), which in turn would have a substantial impact on the roles, responsibilities and powers of councils with respect to the enforcement of expiation notices.

A draft bill was published by the Attorney-General’s Department for comment in October 2012. Submissions were made by various persons and bodies, including councils. The bill was redrafted as a result. Earlier this month, the redrafted bill – entitled the Statutes Amendment (Fines Enforcement and Recovery) Bill 2013 (the Bill) – was tabled in the House of Assembly.

The Bill

The Bill contains some differences from its draft incarnation. Norman Waterhouse assisted in the preparation of council submissions regarding the effect of the draft bill on the EO Act. Some of the recommendations in those submissions have been adopted. One noteworthy difference is a change in terminology from PEO to Fines Enforcement and Recovery Officer (FERO).

Importantly for councils, the Bill no longer interferes with councils’ ability to issue reminder notices and expiation enforcement warning notices to alleged offenders who have not had their debts referred to the FERO. Under the previous drafting, councils were rendered unable to issue reminder and expiation enforcement warning notices in respect of expiation notices that councils had issued, and were instead required to refer such duties to the PEO. Under the amendments proposed to the EO Act by the Bill, councils’ responsibilities regarding the issuing of such notices are largely unchanged.

Other various changes were made to the Bill’s effect on the EO Act, however the fundamental elements of the proposed changes remain the same. Councils will be able to refer expiation enforcement to the FERO. Councils will not have to engage with the Court to recover expiation debts.

The FERO will be able to exercise significant powers in conducting penalty enforcement, including seizure and sale of assets and garnishment of income. The FERO will also be able to come to arrangements with alleged offenders regarding methods of payment. Amounts recovered will still flow to the relevant council.

For more specific information on any of the material contained in this article please contact Chris Alexandrides on 08 8210 1299 or calexandrides@normans.com.au or Paul Kelly on 08 8210 1248 or pkelly@normans.com.au.


article image

Environment & Planning – ERD Court serious about pool safety

Norman Waterhouse recently had the privilege of acting for the prosecuting authority in a pool safety matter in City of Norwood, Payneham and St Peters v Banham.

The pool’s owner pleaded guilty to a single offence under Section 71AA(6) of the Development Act 1993, for failing to ensure that a swimming pool safety feature, specifically a pool safety fence and gate, was installed in accordance with the requirements prescribed under that section.  The maximum penalty for that offence is a fine of $15,000.

The Environment, Resources and Development Court convicted and fined the owner of the swimming pool $8,000 for failing to have in place adequate pool safety fencing in accordance with the requirements of the Act.  That penalty was reduced by 25% on account of the defendant’s cooperation, prompt installation of compliant pool safety fencing and early guilty plea.

The Court accepted that the defendant did not commit the offence intentionally, but rather relied on incorrect advice from the pool installation contractor regarding the adequacy of existing fencing.  The Court noted that the development approval for the swimming pool comprised both the pool itself and pool safety fencing, of which the defendant was aware.

The Court commented that “pool safety is a matter of vital concern to the whole community” and that “the rules exist for a reason ... it is not for any particular individual to substitute their own beliefs about what should be required”.

The decision comes soon after the findings delivered in the coronial inquest into the tragic drowning death of 1 year old Bryce Ashton Eddleston.

The penalty imposed by the Court reflects the seriousness of compliance with the pool safety requirements.

Please contact us if you have any queries regarding the pool safety requirements prescribed by the Act, or are considering legal action in respect of any non-compliant swimming pools within your council area.

For more specific information on any of the material contained in this article please contact James Nicolson on 82171342 or JNicolson@normans.com.au.


© Norman Waterhouse 2012. All Rights Reserved. You may not reproduce all or any part of this newsletter without our prior consent.
We respect your right to privacy. You can view our Privacy Information Notice on our website and our Privacy Policy is available
on request from our Privacy Officer at privacy@normans.com.au
The contents of this newsletter are for information only and
should not be taken as advice on the law

 

Forward this issue

Do you know someone who might be interested in receiving this monthly newsletter?

Forward

Unsubscribe

You're receiving this newsletter because you signed up on the Norman Waterhouse website or you signed the Normans terms of engagement.

Unsubscribe

Contact us

Level 15, 45 Pirie St
Adelaide SA 5000
+ 61 8 8210 1200
www.normans.com.au
normans@normans.com.au


You're receiving this newsletter because you signed up at normans.com.au or you signed the Normans terms of engagement.
Having trouble reading this email? View it in your browser. Not interested anymore? Unsubscribe Instantly.