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June 2016


Recent Events

Our practitioners have been busy this month conducting a number of training sessions. Our Employment expert Sathish Dasan presented an informative Work, Health & Safety workshop earlier this month to the City of Victor Harbor. Our Regulatory specialists Paul Kelly and Dale Mazzachi recently held Local Nuisance & Litter Control forums within metropolitan Adelaide, City of Mount Gambier and the Eyre Peninsula. They will be holding further sessions in the Riverland, Mid North and other specific councils.

If you are interested in attending one of these forums or create your own, please contact Paul Kelly on 8210 1248 or

Sathish Dasan running WHS Training at the City of Victor Harbor.

Staff from the City of Victor Harbor attending the WHS Training.


Dale Mazzachi presenting to regulatory staff at the Local Nuisance & Litter Control forum at the City of Mount Gambier.

Dale Mazzachi presenting to regulatory staff at the Local Nuisance & Litter Control forum.


Each year, Norman Waterhouse is proud to support the Animal Law Committee’s Winter Appeal with donations of food, bedding, toys and other items requested by animal shelters and animal rescue organisations in South Australia.

This year, through a combined effort of lawyers and staff across all teams in the firm, we are pleased to have given the largest amount of any participating organisation. We thank the Animal Law Committee for its ongoing organising of this cause, and for distributing the goods to the places they are needed during these colder, wetter months of the year.

Upcoming Events


Norman Waterhouse Local Government Conference
Friday 12 August 2016

The 2016 Norman Waterhouse Local Government Conference is set to be the biggest yet, and registrations are now officially open! Now in its 26th year, the event provides an opportunity for the local government sector to be engaged and informed with content-rich, topical presentations and discussion. We will also see interstate local government experts sharing their knowledge and experience and back by popular demand our Q&A local expert panel will return to answer the big questions on issues facing councils today.


Human Resources Masterclass
Friday 4 November 2016

Following on from last year’s successful inaugural Human Resources Masterclass, the Norman Waterhouse Employment and Industrial Relations Team is pleased to announce that this year’s Human Resources Masterclass will be held on Friday, 4 November 2016.


Latest Legal Updates

Employment - Down Down Wages are Down

When the Fair Work Commission (the Commission) considers whether to approve a proposed enterprise agreement, one of the most important considerations is that the proposed agreement satisfies the ‘better off over all test’ (BOOT).

To pass the BOOT, pursuant to s 193(1) of the Fair Work Act 2009 (Cth) (the Act), the Commission must be satisfied that each award covered employee and each prospective award covered employee would be better off overall under the agreement than if the relevant modern award applied. This test is similarly applicable to the public sector under the Fair Work Act 1994 (SA).


Governance – This time, it's personal: does the FOI 'personal affairs' cover your name, title,
email address and phone number?

Councils are generally obliged to keep all written records of communication within councils, between councils and government departments, and with residents, ratepayers, customers, complainants and all other persons who interact with councils. Such correspondence, including letters and email trails, is generally littered with information which identifies council officers. Such information includes names, position titles, phone numbers, and email addresses.


Property, Infrastructure & Development – Review of the Retail and Commercial Leases Act

The Small Business Commissioner is seeking feedback on a number of recommendations arising from a recent review of the Retail and Commercial Leases Act 1995 (Act) by Mr Alan Moss, a retired Judge of the District Council of South Australia dated 14 April 2016 (Review).  Some councils have already made submissions as part of a preliminary stage of the Review.


Environment & Planning – Airbnb and home sharing

The increase of home sharing platforms, particularly that of Airbnb, has led to some uncertainty here in South Australia and interstate as to whether development approval is required to rent out a dwelling or portion thereof.

On 7 June 2016, Minister Rau issued a media release stating:

“The South Australian Government has clarified this position in South Australia for people using their residential property for short term stays, by making it clear that a person's period of stay in a residential property should not constitute a ‘change in use’ under the Development Act.”

Regulatory – The defence of ‘pseudolegal gibberish’

Occasionally, but all too frequently, expiation notices issued by councils are met with pseudolegal defences – known sometimes as ‘flesh and blood’ defences – which, among other things, may invoke the Queen of England, the founding of Australia, and international human rights. Such defences generally deny the entire legal existence of local government.

Such arguments are, of course, ridiculous. However, councils repeatedly face these arguments, particularly in response to parking expiation notices. Free ‘step-by-step’ information is available on the internet regarding how to supposedly resist expiation notices, which involves electing to be prosecuted, and advancing various (completely absurd) legal-sounding assertions.

Regulatory – Parking fine non-
payment leads to imprisonment

In the recent case of Hayes v Department for Correctional Services [2016] SASC 76, the Supreme Court of South Australia has upheld a Magistrate’s decision to convert a Defendant’s long-running failure to initially pay fines and then subsequently perform community service, into a sentence of imprisonment.

Imprisonment by Magistrate

The Defendant had been convicted of numerous, mostly motor vehicle-related offences, including ‘a slew of parking offences’. Fines had amassed to the amount of $17,093.65.

Environment & Planning – Vogelpoel v City of Mitcham –
What does “building” mean?

The Environment Resources and Development Court (ERD Court) has recently considered where the word “building” was used in a Principle of Development Control concerning public notification, it should be given the meaning as defined in the Development Act 1993 (Act), or whether a contrary intention was evident such that a different meaning was intended by drafters of the Council’s Development Plan.


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