Becker v City of Onkaparinga
[2005] SASC 428
•16 November 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
BECKER v CITY OF ONKAPARINGA
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
16 November 2005
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - CONSTRUCTION
LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - OTHER MATTERS - ADVERTISING SIGNS AND HOARDINGS
Appellant convicted of five counts of contravening an order issued by the respondent purportedly pursuant to section 254 of the Local Government Act 1999 (SA) ordering him to refrain from placing hoardings, blackboards, signs, structures or similar objects on his land so as to be visible from the road - appellant challenged the validity of the order.
Consideration of relevant legislative scheme - analysis of power conferred by section 254 of Local Government Act 1999.
Magistrate failed to address the subject matter of the complaint - collateral challenge to order - not appropriate to address constitutional question relating to freedom of speech.
Appeal allowed - convictions and penalties imposed set aside - order relied upon to sustain the charges was issued beyond power - order invalid - complaint dismissed.
Local Government Act 1999 (SA) s 254, s 255, s 256, s 257, s 258; Local Government Act 1934 (SA) s 666b(1); District Court Act 1991 (SA) s 42F; Judiciary Act 1903 (Cth) s 78B, referred to.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Coleman v Power [2004] HCA 39; (2004) 209 ALR 182; Australian Capital Television v The Commonwealth (1992) 77 CLR 104; Posner v Collector for Interstate Destitute Persons (1946) 74 CLR 461; Housley v The Queen (1997) 192 CLR 69; Attorney-General (Cth) v Breckler (1999) 197 CLR 83; Re Patterson; Ex parte Taylor (2001) 207 CLR 391, considered.
BECKER v CITY OF ONKAPARINGA
[2005] SASC 428Full Court: Doyle CJ, Bleby and Gray JJ
DOYLE CJ: Mr Becker was convicted in the Magistrates Court on a complaint made by the City of Onkaparinga (“the Council”). He was convicted on each of five counts charging him with contravening an order made by the Council exercising powers conferred by s 254 of the Local Government Act 1999 (SA). The order required him to remove from his land “hoardings, blackboards, signs, and associated structures or similar objects” visible from the road that his land adjoined, and to refrain from placing “hoardings, blackboards, signs, structures or similar objects” on his land, so as to be visible from the road. For convenience I will refer to the objects simply as blackboards, but it must be remembered that the order is wider than that.
On appeal he challenges the validity of s 254 and the validity of the order. He argues that the section or the order, in their application to the facts of this case, burden communication about government or political matters and that the burden cannot be justified by reference to the test laid down by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567-568: see also Coleman v Power [2004] HCA 39; (2004) 209 ALR 182. For convenience I will refer to this submission as the constitutional argument.
Notice was given to Attorneys-General of the constitutional argument. The Attorney-General for South Australia intervened in the proceedings, and the Solicitor-General appeared to put submissions in support of the Council’s case.
In the course of the appeal the submission for Mr Becker embraced a submission that the order was not supported by s 254, properly construed, for reasons independent of the constitutional argument. Mr Roder, for the Council, did not object to the Court considering this further submission.
Background matters
The facts are set out in the reasons of Gray J. I will not repeat them, except to the extent that it is necessary for me to do so.
As Gray J points out, the Magistrate decided the case on the basis that the complaints allege a failure to remove the blackboards. In fact, the complaints allege a contravention of the order by placing blackboards on the land. The agreed facts are directed to that allegation. That is a sufficient reason to set the convictions aside. However, having regard to the manner in which the case has been argued, it is appropriate to deal with some of the submissions advanced.
The terms of s 254 are set out in the reasons of Gray J. Item 1 of s 254 is substantially the same as the former s 666b(1) of the Local Government Act 1934 (SA).
The main submission advanced for Mr Becker is that s 254(1) item 1 and the order can burden, and as the facts of the present case demonstrate do burden, freedom of communication about government or political matters, and that the provisions of the section and of the order are not “reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” that the Constitution prescribes: see Coleman at [26] and [30] Gleeson CJ; [92]-[93] McHugh J; [196] Gummow and Hayne JJ; [211] Kirby J; [288] Callinan J and [320] Heydon J. Accordingly, s 254 should be construed so as not impermissibly to burden protected communications. So construed, the submission goes, the order falls outside the power conferred by s 254.
Mr Heuzenroeder, counsel for Mr Becker, submits that the word “unsightly” can and should be read down to exclude communications about government or political matters. He submits that the messages on the blackboards in question were communications about government or political matters of the relevant kind, and so fell outside the reach of s 254. An alternative submission is that the power to make an order under the section is to be read down so as to exclude an exercise of the power that would impermissibly burden protected communications. On that basis the section is valid, but the order is invalid because it burdened protected communications.
The facts before the Magistrate were limited.
The Council order was proved. Mr Becker was charged with contravening the order “by placing blackboard signs on the land so as to be visible from” the road, on five different days. It was an agreed fact that on each of the relevant days Mr Becker “placed blackboard signs on the land so as to be visible from” the road. Five photographs were admitted as exhibit P6. They show what I understand to be the front yard of Mr Becker’s house. In the yard are some large blackboard signs.
One photograph relates to the date of count 2, another to the date of count 5. The relevance of the other photographs is not clear.
The photograph relating to count 2 shows four or five blackboard signs, and some posters displayed on the land. The blackboards are quite large. Three of them appear to be about two metres by about one metre. Another one is about half that size. There are what appear to be some paper or laminated posters displayed on the land. One of the signs deals with the preservation of the Aldinga scrub, an issue that has arisen at the local government level, and possibly at the State Government level. Other signs name certain politicians, both State and Federal, and are coupled with abusive words, possibly aimed at them. Not all of the writing is legible.
The photograph that relates to count 5 shows a large sign naming a State politician, some deceased former members of the judiciary and two former Magistrates, again with some abusive words apparently aimed at them.
There was no evidence as to the appearance of Mr Becker’s land on the dates the subject of the other counts.
It appears that before the Magistrate Mr Becker did not raise the issue of whether the state of his land, when the order was made, was capable of attracting the power given by s 254(1) item 1. It appears to have been assumed on all sides that it did. The parties were focused on the constitutional argument, not on establishing the facts on which the argument rested. Accordingly, there was no evidence before the Magistrate as to the circumstances by reference to which the order was made. As I will explain later, that gives rise to problems.
It can be seen that the order has two parts. The order to remove blackboards is, in principle, capable of being brought within the power conferred by s 254(1) item 1. An issue arises as to the order to “refrain from placing” blackboards on the land. It is not obvious that item 1 supports an order to refrain from creating circumstances that would attract the application of s 254(1) item 1.
At the hearing of the appeal counsel for the Council tendered, by consent, a further bundle of photographs. It includes a photograph of signs on Mr Becker’s land as at the date of each count. There are photographs of signs on other days preceding the making of the order. The relevance of the latter group of photographs was not made clear. The Court did not rule on the tender at the time.
The validity of s 254 and of the order
As I have said, no issue was raised before the Magistrate to the scope of s 254(1) item 1, or as to the validity of the order, independently of the constitutional argument. However, no objection was raised to the argument being put on appeal.
The starting point for this issue, and the starting point in any event for the consideration of the constitutional argument, is the meaning of s 254(1) item 1. This is an issue of statutory interpretation. It is convenient to consider the meaning of s 254(1) item 1 without reference to the constitutional argument.
The terms of s 254 reflect common concerns with the use and state of land that have an unacceptable adverse effect on the senses, the health and safety of others, nearby occupants and passers-by in particular. The section deals with adverse impacts on visual amenity, on safety, on health and on the environment.
The relevant power is conferred on the Council, as the local government body, to require the owner or occupier to remove (to use a neutral term) the source of the adverse impact. Like powers have for a long time been vested in local government bodies in this State, and in other States. It is not surprising that a local government body might have a fairly wide power in this respect, involving the exercise of a judgment about local conditions, and about what is a reasonable use of land. A local government body is a suitable entity to decide such matters.
In short, there is nothing extra-ordinary about the kind of power created by item 1, or about the vesting of such a power in a local government body.
The making of an order relevantly depends on the Council making a judgment or decision that the land or object “is unsightly and detracts significantly from the amenity of the locality”. This is a compendious expression. There must be an unsightly state of affairs, but it must also detract significantly from the amenity of the locality.
The Council can exercise the power under s 254(1) item 1 and require a person to “ameliorate” (make better or improve) the unsightly condition. “Unsightly” is not a technical word. It has no precise meaning. Its ordinary meaning is “not pleasing to the sight” or “forming an unpleasant sight”: The Macquarie Dictionary (2nd Revised Edition 1987).
I agree that the word “unsightly” should be read in a somewhat restricted manner, having regard to the nature of the power conferred by s 254(1) item 1, and having regard to the kind of controls that by law are usually created in respect of such conditions. The requirement that the condition “detracts significantly from the amenity” of itself has a limiting effect. To have this effect the condition must be easily seen from the street or land nearby. It must be obtrusive. This limitation also means that it is necessary to consider the nature of the area in which the land is situated.
Commonsense suggests some further limitations. It would not be enough that the condition is the result of something that is merely not in good taste, or something that merely clashes with contemporary or prevailing styles or standards. There is no reason to think that Parliament intended to enable a council to enforce good taste or to impose current sensibilities. For example, a council could not require an owner to remove an unattractive brick pre-war house, or a startlingly modern house, from a street that is otherwise occupied by gracious bluestone villas, simply because the appearance of the house in question is considered to lower “the tone” of the street or to clash with the prevailing style of housing. For the purposes of that illustration I ignore the question of whether, in any event, the section could be used to require the removal of a house. I do not consider that it could. I use the illustration merely to make the point that the power should be taken to be directed at the condition that is an unreasonable interference with the local amenity, having regard to the wide range of styles and tastes that is found in the use of land, and when considering the visual impact of the use of land. It may be that there is no substitute for a case by case consideration, bearing these general points in mind.
I proceed on the basis that s 254(1) item 1 is limited to that extent. It deals with a condition the sight or appearance of which is an unreasonable interference with the local amenity, a condition that would be regarded as a substantial departure from the range of uses of land that we all accept in the interests of give and take.
So construed, is the order within power?
There is no satisfactory evidence as to the circumstances by reference to which the Council made the order. This reflects the fact that before the Magistrate there was no challenge to the order on the basis that it was not open to the Council to conclude, apart from the constitutional argument, that the circumstances enlivened the power conferred by s 254(1) item 1. The parties focused on limits on s 254(1) item 1, and on the order, flowing from the considerations involved in the constitutional argument.
For present purposes I am prepared to assume that the order was made by the Council because it was satisfied that Mr Becker frequently displayed blackboard signs on his land of the type and size shown in the photographs in exhibit P6. As I have indicated, these are large signs, mostly with chalk messages on them, displayed in various positions at the front of the house. They face the street. There are some other signs as well.
I consider that the Council could reasonably have concluded that placing signs of this size and appearance on the land made the land unsightly, and that the signs detracted significantly from the amenity of the locality. In other words, treating s 254(1) item 1 as restricted to circumstances of the kind identified by me above, it was open to the Council to form the opinion that the removal of the signs was required to ameliorate the condition. Whether putting smaller and tidier signs on the land would attract the power under s 254 does not arise.
Was it open to the Council to make the order that it made?
On its face the order is very wide. It applies to all blackboards (and the other objects referred to) regardless of number, size and appearance, so long as they are visible from the road.
On its face I consider that the order is beyond power. On its face it is not limited to blackboards and objects that make the land unsightly, let alone that detract significantly from the amenity. Nor could it be said that putting blackboards or other objects on the land necessarily has that effect.
However, the first part of the order (the requirement to remove objects) can and should be read down as referable to blackboards and other objects of a kind placed as they were when the Council made the order. The first part of the order should be read down as limited to the circumstances that actually enlivened the power. Had Mr Becker been prosecuted for failing to remove blackboards and other objects in compliance with the requirement to do so, the order would have been read as referable to the circumstances on the basis of which the order was made. Proof of breach of the order would have required proof that, in substance, he failed to remove the objects in question. So interpreted, the order to remove is within the reach of s 254.
But did the Council have power to order Mr Becker to “refrain from placing” blackboards and other objects on the land?
This part of the order is prospective. It looks to the future. On its face it also is unlimited by reference to size or type of blackboard or other object. It is unlimited as to time. It would prevent Mr Becker displaying a “for sale” if he wished to sell his land. It would prevent him from putting up, temporarily, a sign saying “garage sale”, something often seen on land.
If this is the reach of the second part of the order, the exercise of the power has become disengaged from s 254(1) item 1. Even if the second part of the order is read more narrowly, it is not an order that requires action to ameliorate an unsightly condition. It is an order that attempts to prevent something happening, and arguably, something that would not necessarily be unsightly and a significant detraction from the amenity of the locality.
Can this part of the order be read down in the same way as I was prepared to read down the first part of the order? I do not consider that it can. It is one thing to treat the order requiring removal of objects as referable to the circumstances by reference to which that order was made. It is more difficult to treat a forward looking or prospective order as referring only to the re-creation (as it were) of the condition that gave rise to the making of the order. There is the practical difficulty that the prospective part of the order, which can operate indefinitely, would have to be interpreted by reference to a possibly long past state of affairs.
It is one thing to read down the first part of the order to treat it as a requirement to remove the blackboards by reference to which the power under s 254(1) item 1 was exercised. That is the natural way to read the order. There is no particular reason to read the second part of the order as subject to the same limitation.
Even if the second part of the order can be read down to refer to blackboards like those that caused the Council to make the order, in my opinion s 254(1) item 1 does not confer a power to order a person to refrain from doing something that might make land unsightly and cause it to detract significantly from the amenity of the locality. I consider that item 1 enables a council to deal with an existing state of affairs, and not to prohibit something that might arise in the future. That is subject to the point that, to some extent, an order to remove something from land necessarily prohibits the placing of something on the land. A short term of removal of the thing in question from the land, and the replacing of it on the land a short time later, would be a failure to comply with the order to remove. Questions of degree would obviously arise here.
The text of s 254(1) supports this conclusion. A council can order a person “to do or to refrain from doing a thing specified in Column 1 …” The thing specified in Column 1 of item 1 is “action … necessary to ameliorate an unsightly condition”. The order contemplated is an order to do something that will ameliorate the condition. A prospective order to refrain from putting blackboards on land does not order the landowner to take any action. Nor does it ameliorate an unsightly condition, unless limited to prohibiting the replacing of the blackboards that created an unsightly condition.
Read in this way the second part of the order goes beyond power. It is not necessary to consider whether or not the order can be treated as valid to the extent that it requires the removal of blackboards from the land. The charges are based on the second part of the order, clearly enough.
Accordingly, as that part of the order on which the charges are based is beyond power, the charges lack a valid basis, and the Magistrate should have found Mr Becker not guilty. The convictions must be set aside.
The charges
If the second part of the order is supported by the power conferred by s 254(1) item 1, it becomes necessary to consider whether the convictions can stand.
As the matter might go further, it is desirable to consider the outcome in the event of the order being valid.
I therefore consider the matter on the hypothesis that s 254(1) item 1 confers power to make an order that requires the owner or occupier of land to refrain from putting blackboards on the land if that would make the land unsightly and cause it to detract significantly from the amenity of the locality. Because I am firmly of the view that item 1 of s 254(1) does not authorise a simple prohibition of the placing of blackboards on the land, I do not propose to deal with the case on the hypothesis that the power is as wide as that.
On the hypothesis that I have identified, did the Council prove a breach of the order? As to counts 1, 3 and 4, the evidence of breach was (by agreed facts) that Mr Becker placed blackboard signs on the land so as to be visible from the adjacent roadway. There was no evidence before the Magistrate about the appearance of the blackboards or about their impact on the amenity of the locality. Nor was there any evidence relating the appearance of the land on the days in question to the appearance of the land when the Council made the order.
Accordingly, even if the order was validly made (on the hypothesis above), the convictions on counts 1, 3 and 4 should be set aside. A breach of the order was not proved.
In fairness to the Magistrate I should point out that when the Magistrate found Mr Becker guilty, apparently on the basis that the order validly prohibited him from placing any blackboard sign on the land, he did so without having heard submissions that raised the issues that I have canvassed above.
There was some further evidence before the Magistrate in relation to count 2 and count 5. This was in the form of exhibit P6, comprising photographs of the front of Mr Becker’s house. One of the photographs shows the front of the house on 5 April 2004, the day the subject of count 2. Another two show the front of the house on 22 April 2004, the day the subject of count 5.
It was open to the Magistrate to find that on 5 April 2004 Mr Becker had blackboard signs on the land that made the land unsightly, and that detracted significantly from the amenity of the locality. The signs are large, untidy looking and obtrusive. They were readily visible to any passer-by.
As to count 5, a photograph shows a sign about one metre by two metres, on its side, and apparently a piece of chipboard or light timber. Words are written on it. It looks as if the sign is resting against a side fence at the front of the house. On the basis of that single sign, it was not open to the Magistrate, in my opinion, to conclude that circumstances enlivening the Council’s power existed, and accordingly the conviction on count 5 could not be sustained by reference to this sign.
Accordingly, even on the hypothesis that the order is valid (although read in the restricted manner that I have indicated), only the conviction on count 2 can be sustained.
I would reject the tender by Mr Roder of the further photographs tendered on appeal, even though Mr Heuzenroeder consented to that tender. The only photographs of relevance are those that bear dates the subject of one of the counts. If accepted they could sustain the convictions on count 3 and count 4, on the hypothesis now under consideration. They add nothing in respect of the other counts. In my view there is no good reason to admit this additional material at this stage. It is relevant only on a view of the facts that I have already rejected. To the extent that the parties want to resolve the extent of the Council’s power under s 254(1) item 1, that issue can be considered by reference to count 2.
The constitutional argument
The constitutional argument arises only if s 254(1) item 1 has a meaning that I consider it does not have (conferring a power to make an order that prohibits the creation of the circumstances specified in column 2 at an indefinite time in the future), and only if the notice can be read down or limited in a manner in which I consider it cannot be read down (relating not just to the placing of blackboards on the land, but to placing blackboards so as to give rise to the circumstances specified in column 2) and finally if the conviction can be sustained, as I consider it can on count 2.
Under these circumstances, it is not appropriate to deal with the constitutional argument. It does not arise.
The relevance of the statements on the blackboards
I have decided the case on the basis that the Council made its order having regard to the size, position and appearance of the blackboards (including the fact that words were written on them) but without regard to the content of the statements made on the blackboards. I do not infer that the content of the statements was a reason why the Council made the order. I express no view on the issue of whether the order should be read as limited to blackboards containing the same statements as appeared on them on the date of the order.
Conclusion
The appeal should be allowed. The convictions should be set aside because the notice, or at least the part of the notice relied upon to sustain the charges laid, is beyond power. An order dismissing the complaints should be substituted, for the reasons given by Gray J.
I would hear the parties on the question of the costs of the proceedings in the Magistrates Court and of the appeal.
BLEBY J: The relevant facts giving rise to this appeal are referred to in the reasons of the Chief Justice and Gray J. I will not repeat them except where necessary to illustrate a particular point.
The notice served by the Council on the appellant in purported compliance with s 254 of the Local Government Act 1999 contained two limbs. It ordered the appellant to:
·remove from (his land) all hoardings, blackboards, signs and associated structures or similar objects visible from Commercial Road, Port Noarlunga South forthwith; and
·refrain from placing any hoardings, blackboards, signs, structures or similar object (sic) on (the land) so as to be visible from Commercial Road, Port Noarlunga South.
The order purported to require the appellant to comply with “the above action” within 48 hours of the time of service of the order.
For the sake of convenience I will refer collectively to the “hoardings, blackboards, signs and associated structures or similar objects” referred to in the order as “the hoardings”.
Each of the five complaints against the appellant alleged only a breach of the second limb of the order.
I agree with the Chief Justice and Gray J that the second limb of the order purports to require action not authorised by item 1 of s 254(1) of the Local Government Act. The authority conferred on the respondent Council is to order a person to do or to refrain from doing certain things. The only authority conferred in respect of item 1 is to order a person “to take action”. That item does not confer a power to order a person to refrain from doing something. The power conferred by item 1 is to be contrasted with that conferred by other items in s 254(1) which specifically authorise an order requiring a person to refrain from taking action.
Accordingly, the second limb of the order was invalid. As it was the second limb that was the subject of the five complaints, all five complaints had to be dismissed.
I also agree with Gray J that, had the second limb of the order been valid, the proceedings before the Magistrate miscarried because the Magistrate only addressed the question of removal of the hoardings and not the placing of hoardings on the land, when failure to remove the hoardings contrary to the order had not been alleged. However, this may be of little consequence, as there was a formal admission by the appellant in the proceedings that on the dates of the alleged offences he “placed” blackboard signs on the land so as to be visible from Commercial Road, Port Noarlunga South.
The invalidity of the second limb of the order is sufficient to require that the appeal be allowed and the convictions quashed.
I turn to consider the position if I am wrong in that conclusion and if an order requiring a person to refrain from taking action is justified under item 1 of s 254(1). In that event, I consider that all the complaints must still be dismissed.
It is necessary first to consider the process required by Chapter 12, Pt 2, Div 1 of the Local Government Act as it relates to item 1 of s 254(1). A council must first form the opinion that land or a structure or object on land is unsightly and detracts significantly from the amenity of the locality in which the land is situated.[1] I will refer to this as “the relevant opinion”.
[1] See column 2.
Before it can take the action authorised by column 1, the Council must first give the person to whom it is proposed that the order be directed a notice in writing stating the proposed action, the terms of the proposed order and the period within which compliance with the order will be required. The notice must state the reasons for the proposed action and must invite the person to show within a specified time why the proposed action should not be taken.[2] The Council must consider representations made within the time specified before it can decide to proceed with the order.[3] There are other incidental requirements of s 255 which are not relevant for present purposes.
[2] Section 255(1).
[3] Section 255(3).
After service of the order the person to whom the order is directed may, within 14 days after service, appeal against the order to the District Court.[4] The Local Government Act is silent as to the powers of the District Court on hearing the appeal, in which case it would appear that the Court could exercise the powers contained in s 42F of the District Court Act 1991. That includes the power to rescind the decision and substitute a decision that the Court considers appropriate.
[4] Section 256(3).
Section 257 of the Local Government Act enables the Council to take the action required by the order if the requirements of the order are not complied with in the time fixed for compliance or, if there is an application for review, within 14 days after the determination of the review. Section 258 creates the offence with which the appellant was charged in this case, namely that of contravening or failing to comply with an order under Pt 2.
The evidence in this case suggests that the hoardings bore changing messages. The hoardings in question comprised a collection of substantial structures which have been described by the Chief Justice. For the purposes of assessing their unsightliness and detraction from the amenity of the locality, I consider that one cannot avoid taking into account an assessment of what is on or attached to the hoardings. There could well be, for example, a substantial difference between hoardings displaying lewd and sexually explicit images on the one hand, and the same hoardings displaying, on the other hand, sensitive works of art, simple religious messages or attracting attention to a domestic garage sale on the premises. Thus in the case of hoardings of this nature, both the structure and the message contained on them will need to be assessed by the Council. Indeed, one can infer that the relevant messages were of concern to the Council in this case by the inclusion of the word “signs” in the description of the hoardings to be removed. A sign is something which contains a message. If the Council were merely concerned about the structures themselves, I would expect the wording of the order to have been different.
In the case of frequently changing messages, that presents some obvious difficulties for the application of s 254, s 255 and s 256 of the Local Government Act. The relevant opinion must be formed by the Council as at the time of the order and in respect of what appears on the hoardings on that day. However, before the order can be served the process required by s 255 must be followed. Service of the order may in turn be followed by an appeal to the District Court, that could result in the order being set aside. The structures, with their messages, in respect of which a notice is given under s 255 may not be the same as those appearing at the time of service of the order.
I take the view that a notice under item 1 of s 254 can only require removal of the particular hoardings with their respective messages which were in place on the date of the notice and in respect of which the Council has formed the relevant opinion. To the extent, if at all, that the section authorises an order to refrain from placing hoardings on the land, it can only relate to those hoardings with their respective messages that were displayed on the land on that day. The same hoardings with different messages may or may not be the subject of a relevant opinion of the Council under column 2 of item 2. The essence of the remedy provided by s 254 is to ameliorate a particular unsightly condition in respect of which the Council has formed the relevant opinion. Cumbersome as it may be, if another but different unsightly condition is created, the Council’s remedy is to begin the process again.
It follows that in my opinion the second limb of the order is invalid as being far too wide. If it is not invalid on that account, it must be read down to refer only to those hoardings with their messages which were in place on the land at the date of the notice.
It is necessary to refer briefly to the sequence of events which took place in this case and to the evidence before the Magistrate. The Council served a notice pursuant to s 255(1) of the Local Government Act on 15 December 2003. The appellant made a submission to the Council on 22 December 2003. The order in question was served on 13 February 2004. It required compliance within 48 hours of the time of service of the order. That requirement itself may be questionable, given that s 256 allows a period of 14 days from service of the order within which to appeal to the District Court.[5]
[5] Section 256(3).
Significantly, there was no evidence before the Magistrate as to the nature and placement of the hoardings on either 15 December 2003 or 16 February 2004. What was displayed on the hoardings on those dates is unknown.
There was evidence before the Magistrate of the hoardings in place on the land on 5 April 2004 and 22 April 2004, being the dates the subject of counts 2 and 5 respectively in the complaint and summons. There was no evidence of what was on the land on the dates alleged in the other complaints. Accordingly, it was quite impossible to determine whether the hoardings and their contents in respect of which the Council had formed the relevant opinion were the same hoardings as appeared on any of the dates the subject of the complaints. It was therefore not possible to determine whether the hoardings with their messages had been removed and replaced by different ones or whether they were the same hoardings in respect of which the Council had formed the relevant opinion. There was therefore no evidence to support the complaints and they should have been dismissed.
I accept that it would be open to the Council to form the opinion that the hoardings in themselves were unsightly and detracted significantly from the amenity of the locality, whether or not they contained any messages or adornments. If that was the case, the Council should have made clear in the order that it was the hoardings themselves, regardless of their messages and adornments, that it required to be removed or, if it were otherwise valid, that it required the owner to refrain from placing on the land. However, as I have already observed, the messages and adornments on the hoardings are a necessary component of what goes to justify the formation of the relevant opinion, and the evidence suggests that the Council regarded them as such.
Because there was no evidence before the Court as to what was on the hoardings on the date of the order, it is not possible to express any view as to whether the application of s 254 raises the constitutional issues sought to be argued by the appellant, and it would be unwise for this Court to attempt to do so. In the view I take, the only relevance of the evidence showing what was on the land on the date of the alleged offences was to determine whether the order of the Council, assuming its validity, had been complied with. That was the essence of the complaints. If the validity of the Council’s actions in serving the order were to be questioned on constitutional grounds, it would be necessary to know what it was that was sought to be prohibited by the order.
For these reasons, I consider that the appeal should be allowed and the convictions set aside.
GRAY J:
This appeal against the decision of a magistrate has been referred to the Full Court.
Background
The defendant and appellant, Barry John Becker, was charged upon complaint of the respondent Council, the City of Onkaparinga, with five counts[6] of contravening an order issued pursuant to section 254 of the Local Government Act 1999 (SA) contrary to section 258 of that Act.
[6] Count 1 of the complaint was in the following terms:
On 26 March 2004 the Defendant contravened an order issued pursuant to Section 254 of the Local Government Act 1999 CONTRARY to Section 258 of the Local Government Act 1999 (“the Act”)
PARTICULARS
The Defendant was the recipient of an Order from the Complainant made pursuant to Section 254 of the Act on 13 February 2004. The Order prohibited the Defendant from placing any hoardings, blackboards, signs, structures or similar objects on the land at 137 Commercial Road, Port Noarlunga South so as to be visible from Commercial Road, Port Noarlunga South. The Defendant contravened the Order by placing blackboard signs on the land so as to be visible from Commercial Road, Port Noarlunga South.
The remaining four counts charged on the complaint were in identical terms save for the dates upon which the appellant was said to have contravened the order.
The complaint originally named the appellant as Barry John Oxer but was amended to correctly name the appellant as Barry John Becker. The appellant was previously known by the surname Oxer.
The appellant pleaded not guilty to the charges and the matter proceeded before a magistrate sitting at the Christies Beach Magistrates Court on 14 March 2005. The appellant was unrepresented at trial, but submitted written submissions that had been prepared by a lawyer.
The appellant is one of the registered proprietors of the property at 137 Commercial Road, Port Noarlunga South, the property the subject of the order referred to in the complaint. The property is a standard suburban quarter-acre block. It is a residential block with an average-sized home upon it.
It was “well known locally” that for a considerable period of time, signs and other structures had been displayed on the property, for the purpose of expressing what the appellant claimed were his political views.
The signs and structures were erected in the front yard of the property. They were clearly visible to passers-by using Commercial Road. The signs and structures, both in position and content, varied from time to time. Primarily, the signs were blackboard signs upon which messages were written in chalk. On occasions there were as many as eight or nine signs displayed in the front yard of the property. At times, other items accompanied the signs.
Counsel for the respondent sought to tender on appeal, with the consent of the appellant, a book of documents comprising some 30 photographs taken of the property during the period 18 February 2003 to 22 April 2004. The book was received de bene esse. For reasons that appear later, it has been unnecessary to rule on the reception of this material on appeal as further evidence.
Counsel for the appellant drew the Court’s attention to a photograph taken on 6 February 2004, which depicted three large blackboard signs upon which were messages written in bold lettering in chalk. Between two of the signs, a small fence was erected, behind which were a number of dolls. Although it is somewhat unclear, counsel for the appellant submitted that one of the signs directly adjacent to the small fence and the dolls read:
Howard evil dwarf loves children in death camps. Come on Aussie, come on.
Counsel suggested that this was a reference to the Federal Government’s immigration policy.
Another of the signs displayed in the same photograph referred to the then Leader of the Opposition, the Premier of South Australia and the Leader of the Opposition of South Australia and then followed with the message:
Why?? Do ya vote?
Who?? Do ya vote 4?
Make up ya mind
Which one’s cheatin & lyin
Vote 4 Bazza
Independent 4 Kingston
Get Cox out
The sign to the left of that sign displayed the message:
Save Port Noarlunga Public Space
No re-zone former caravan park and RSL
Ray Gilbert corrupt as Leon Byner.
Counsel for the appellant submitted, and the remaining photographs reinforce the point, that this particular photograph was generally representative of the appearance of the property and the nature of the signs that appeared on the property on each of the occasions to which the five counts related.
Counsel also used the photographs identified to support the assertion that the signs generally displayed in the front yard of the property expressed political commentary. Counsel said that this fact was further reinforced by a letter sent by the appellant’s partner and co-registered proprietor of the property, Janette Inglis, on behalf of herself and the appellant, to the General Manager of the City Compliance division of the complainant.
The letter, tendered in evidence and dated 16 December 2003, responded to one of the orders for compliance sent by the respondent and was in the following terms:
We question the motives behind Onkaparinga City Councils intention to issue this Order for us to remove the articles you have listed, that we place in our (tidy) frontyard, and use to exercise our right under Article 19 of the United Nations Charter of Human Rights, that is, “the right to Freedom of Opinion, and Expression. This Right includes Freedom to hold Opinions without interference, and to seek, receive and impart information and ideas through any Media, regardless of Frontiers.”
[The appellant] and I put it to you and your compliance officers, that in ordering us to “remove from our land all boarding’s, [sic] blackboards, signs, and associated structures or similar objects visible from Commercial Road, and to Refrain from placing the above on our land so as to be visible from Commercial Road” is an underhanded attempt of censorship, and that to activate the Local Government Act 1999, namely section 254/255(1) “to take action considered by the council to be necessary to ameliorate an unsightly condition, “detracting sufficiently from amenity of the location”, an abuse of Power, cunningly used to deny our rights as citizens.
…
We find that it is hypocritical of the council to harass us about out protest signs, when the above mention [sic] Land, formally [sic] a caravan park and bowling green have been left in a disgraceful condition, and certainly detract from the amenity (and ambience) of the locality.
We put it to you that since [the appellant’s] Nomination Form for the position of Mayor in the last Council Elections was deemed, by appropriately qualified council staff, not to have been lodged, and [the appellant’s] public protest that it was lodged, and that, in his opinion, blind trust in the Administration of our city Council is not warranted and that being the gist of the content of our Blackboard and Banner Protests (at the time of ‘Inspection’) we are of the opinion and belief, and put it to you that, the demand by council to remove said articles demonstrating our beliefs, and the threat of issuing us with an order to remove and refrain, is an underhanded attempt to censor and deny us our right of freedom of speech, and the right to protest, and an abuse of the powers of the Local Government Act 1999.
…
Protest is unsightly. Protest will detract significantly from the amenity of the locality. That is the nature of Protest. Protest must stand out to be seen and heard. By using the front yard of our property Commercial Road, our protest is contained yet can be seen by those who wish to look, those who don’t want to look, don’t!
As our means of exercising our rights, as Free Australians, will never pass the test, it seems inevitable that Council will carry out threats made by one compliance officer, “to issue us with expiation notice after expiation notice, after expiation notice, until we can no longer pay then we’d go to jail and then the council would be able to take our signs.”
The respondent, in purported exercise of its powers pursuant to section 254 of the Local Government Act, ordered inter alia the removal of the signs and structures. That order was in the following terms:
ORDER PURSUANT TO SECTION 254 OF THE LOCAL GOVERNMENT ACT 1999
FROM: City of Onkaparinga
Ramsay Place
NOARLUNGA CENTRE SA 5168
Phone: 08 8384 0666
TO: Mr Barry John Oxer and
Ms Jeanette Patricia Inglis
137 Commercial Road
PORT NOARLUNGA SOUTH SA 5167
A.You are the owner of land situated at 137 Commercial Road, Port Noarlunga South in the State of South Australia (‘the land’).
B.Located, placed, erected or standing on the land are a number of hoardings, blackboards, signs, structures or similar objects.
Council is of the opinion that the location, placement, erection or standing of the hoardings, blackboards, signs, structures or similar objects on the property is unsightly and detracts significantly from the amenity of the locality in which the land is situated.
You are hereby ORDERED pursuant to Section 254 of the Local Government Act 1999, as the owner of the land to:
·Remove from ‘the land’ all hoardings, blackboards, signs, and associated structures or similar objects visible from Commercial Road, Port Noarlunga South forthwith; and
·Refrain from placing any hoardings, blackboards, signs, structures or similar object on ‘land’ so as to be visible form Commercial Road, Port Noarlunga South.
AND further you will be required to comply with the above action within forty eight (48) hours of the time of service of the order.
DATED this 13 day of February 2004
[Signed]
Terry Sutcliffe
General Manager, City Compliance
Following what the respondent asserted to have been the appellant’s consistent non-compliance with the terms of the order, proceedings were issued in the Magistrates Court.
Magistrates Court proceedings
The Magistrates Court file records that the appellant gave notice pursuant to section 78B of the Judiciary Act 1903 (Cth) to the several Attorneys-General that his defence of the proceedings involved a constitutional issue and invited their intervention. The notice particularised the issue as being one of a guarantee of the freedom of political communication. Not all of the Attorneys-General responded. Of those that did, none wished to intervene. On 26 October 2004, the magistrate ruled that the case be determined by trial in the Magistrates Court.
During pre-trial discussions, it became obvious that the facts of the matter were not in dispute. An agreed statement in the following terms was prepared and received into evidence:
The [appellant] is a registered proprietor of land at 137 Commercial Road, Port Noarlunga South, SA 5168 (“the land”).
The [appellant] jointly owns the land with Ms Janette Patricia Inglis.
On or about 13 February 2004, the [respondent] served upon the [appellant] an Order made pursuant to section 254 of the Local Government Act 1999 (“the Section 254 Order”). A copy of the section 254 order is annexed hereto and marked “A”.
The section 254 Order contained the following directions to the [appellant], to:
-remove from “the land” all hoardings, blackboards, signs, and associated structures of [sic] similar objects visible from Commercial Road, Port Noarlunga South forthwith; and
-refrain from placing any hoardings, blackboards, signs, structures or similar objects on “the land” so as to be visible from Commercial Road, Port Noarlunga South.
The [appellant] did not appeal to the District Court against the issue of the section 254 Order, either within 14 days after service of the section 254 Order, or at all.
On 26 March 2004 the [appellant] placed blackboard signs on the land so as to be visible from Commercial Road, Port Noarlunga South.
On 5 April 2004 the [appellant] placed blackboard signs on the land so as to be visible from Commercial Road, Port Noarlunga South.
On 6 April 2004 the [appellant] placed blackboard signs on the land so as to be visible from Commercial Road, Port Noarlunga South.
On 7 April 2004 the [appellant] placed blackboard signs on the land so as to be visible from Commercial Road, Port Noarlunga South.
On 22 April 2004 the [appellant] placed blackboard signs on the land so as to be visible from Commercial Road, Port Noarlunga South.
During the pre-trial discussions, the appellant indicated that he intended, as part of his defence, to challenge the validity of the Section 254 order. The prospect of the Magistrates Court proceedings being adjourned to enable the appellant to pursue his appeal rights in the District Court pursuant to section 256 of the Local Government Act 1999 was discussed. However, the appellant did not wish to take the opportunity of an adjournment for that purpose.
The matter proceeded to trial. The respondent called one witness, Christopher John Button, a council employee with the conduct of the matters the subject of the proceedings. The respondent tendered a number of documents through Mr Button, including the section 254 order and a proof of service, five photographs showing signs, and a letter from the appellant to the respondent.
The appellant gave evidence. The magistrate summarised his evidence in the following terms:
The [appellant] told me of his interest in politics, which commenced in 1953 as a 12 year old child. He told me of his keen interest of political matters thereafter including the impact of a 1979 publication titled “It’s Grossly Improper”. He told me of circumstances that led him to less involvement in the political scene after a friend’s death and until about 1987 when his interest was regenerated. He told me of his frustration in the years between 1987 and 1991 when journalists would refuse to support the publication of matters that the [appellant] regarded as important. It was as a result of that frustration that he commenced the practice that he referred to as “graph arty”, which was generally speaking chalk written signs on his property. He told me that he began pursuing those activities whilst a resident in St Peters and had continued to do so.
He further sought to prove the fact that he was a political activist by the tender of a number of documents, which were admitted by consent and to which I refer to as follows:
D1 Copy of Messenger Press article dated 14th October 1992.
D2 Copy of Messenger article dated 16th February 2000.
D3 Copy of article in Southern Times dated 8th March 2000.
D4 Political profile produced by Complainant – undated.
The [appellant] went on to tell me that he disagreed with [the respondent’s] actions and referred to his mention in Parliament by Sandra Kanck and that it was there pointed out that there should be a law to stop the [appellant] from what he was doing. The [appellant] tendered a copy of Hansard of 30th May 2001 p.1630 which was exhibited marked D5.
The magistrate accepted the evidence of Mr Button and the appellant. The magistrate concluded that, in view of the evidence, the appellant could only avoid an adverse finding if the Section 254 Order could be shown to be invalid. It would need to be shown to be invalid either because it was issued beyond the scope of the respondent’s power, because it could be regarded as an unconstitutional interference with the right to freedom of political expression or because it was procedurally invalid. If it was procedurally invalid, this would be because it resulted from an unfair exercise of that power.
Without reasoning in detail, the magistrate concluded that he was satisfied that a notice in the prescribed form had been issued to the appellant. He then concluded:
s.254 provides [the respondent] with the power to make the order in question. The terms of the section are unusual but relative to the matter before the court [the respondent] may order a person being the owner or occupier of land to remove a structure or object on the land that [the respondent] regards as unsightly and detracts significantly from the amenity of the locality in which the land is situated if it is considered by [the respondent] necessary to ameliorate an unsightly condition. The section otherwise has extensive provisions in addition to these powers but they are not relevant to this action. There is no doubt in the making of the order in question that [the respondent] exercised the powers conferred by this section and there is nothing I find on the face of the order that would render it ultra vires the power conferred by s.254. Further I am satisfied that the order on its face complied with the terms of the section and was served upon the [appellant].
The magistrate went on to consider whether the appellant was able to argue that the respondent had failed to accord the appellant procedural fairness, or had otherwise acted invalidly, when it issued the section 254 order. The magistrate formed the view that the appellant was not prevented from challenging what he termed the “substantive” validity of the section 254 order, but decided that the appellant was prevented, as part of his defence of the proceedings, from challenging the correctness or procedural validity of the order. The magistrate concluded:
In my view, on the face of the order, not varied or set aside on appeal, [the respondent] possessed the relevant power and complied with the relevant sections of the legislation in making the order, which on its fact is not invalid. Accordingly, I am unable to conclude that there is any substantive invalidity such as would require me to dismiss these charges.
The Appeal
The Grounds
The following grounds on appeal were advanced:
-The magistrate erred in holding that the respondent had acted within its statutory power.
-The magistrate erred in holding that the word “unsightly” in section 254 was not to be read down so as not to entrench upon political free speech.
-The magistrate erred in distinguishing Coleman v Power[7] from the facts of the present case.
-The magistrate erred in law in holding that questions as to the proper construction of section 254 were matters for an appeal under section 256 of the Local Government Act 1999.
-The magistrate failed to provide sufficient reasons as to why he rejected the appellant’s written submissions.
-The magistrate erred in convicting the appellant with respect to each count.
[7] Coleman v Power (2004) 209 ALR 182.
At the hearing of the appeal, counsel for the appellant was granted leave to add the following further ground:
-The magistrate erred in fact and law by finding that each element of each offence was proved beyond reasonable doubt.
The Legislative Scheme
The relevant sections of the Local Government Act 1999 fall within chapter 12, part 2 of that Act, which is entitled “Regulatory Functions, Orders”. Section 254 empowers a council to order a person to do or to refrain from doing certain things specified in column 1 in that section. It provides:
(1)A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following table if in the opinion of the council the circumstances specified opposite it in Column 2 of the table exist and the person comes within the description opposite it in Column 3 of the table.
Column 1
To do or to refrain from doing what?
Column 2
In what circumstances?
Column 3
To whom?
1.Unsightly condition of land
To take action considered by the council to be necessary to ameliorate an unsightly condition.
Land, or a structure or object on land, is unsightly and detracts significantly from the amenity of the locality in which the land is situated.
The owner or occupier of the land.
2. Hazards on lands adjoining a public place
(1)
To fence, empty, drain, fill or cover land (including land on which there is a building or other structure).
(1)
A hazard exists that is, or is likely to become, a danger to the public.
(1)
The owner or occupier of the land.
(2)
To remove overgrown vegetation, cut back overhanging branches, or to remove a tree.
(2)
The vegetation, branches or tree create, or are likely to create, danger or difficulty to persons using a public place.
(2)
The owner or occupier of the land.
(3)
To remove or modify a flag or banner, a flagpole or sign, or similar object or structure that intrudes into a public place.
(3)
The relevant object or structure creates, or is likely to create, danger or difficulty to persons using a public place.
(3)
The owner or occupier of the land.
(4)
Where the public place is a road—to take action necessary to protect the road or to remove a hazard to road users.
(4)
A situation exists that is causing, or is likely to cause, damage to the road or a hazard to road users.
(4)
The owner or occupier of the land.
Examples—
·
To fill an excavation, or to prevent drainage of water across the road.
·
To construct a retaining wall or to remove or modify a fence.
·
To fence land to prevent the escape of animals.
·
To remove a structure or vegetation near an intersection.
3. Animals that may cause a nuisance or hazard
To do or to refrain from doing the thing specified in the order in order to abate a nuisance or a hazard to health or safety associated with a live or dead animal or animals, or otherwise to deal with an animal or animals.
A person is keeping or dealing with (or failing to deal with) an animal or animals (whether the animal or animals are alive or dead) so as to cause, or to be likely to cause, a nuisance or a hazard to health or safety.
A person is the owner or occupier of land where an animal or animals are located which may cause, or be likely to cause, a nuisance or a hazard to health or safety, or otherwise to become a pest.
The owner or occupier of land or any person apparently engaged in promoting or conducting an activity.
Examples—
(1)
The slaughtering of animals in a town or urban situation.
(2)
Keeping an excessive number of insects, birds or other animals.
(3)
Keeping bees in close proximity to other property.
(4)
Keeping animals so as to generate excessive noise, dust or odours, or to attract pests or vermin.
(5)
Keeping an aggressive animal, or keeping an animal in a situation where it cannot be adequately contained or may cause danger to the public.
(6)
Failing to deal with a wasp's nest
4. Inappropriate use of vehicle
To refrain from using a caravan or vehicle as a place of habitation.
A person is using a caravan or vehicle as a place of habitation in circumstances that—
(a) present a risk to the health or safety of an occupant; or
(b) cause a threat of damage to the environment; or
(c) detract significantly from the amenity of the locality.
The owner or occupier of the land or a person apparently occupying the caravan or vehicle.
(2) A reference in the table to an animal or animals includes birds and insects.
Section 255 sets out the procedures that a council is required to follow when making an order pursuant to chapter 12, part 2. Section 256 provides for a right of review to a person who has received an order from a council. It provides:
(1)An order must include a statement setting out the rights of a person to appeal against the order under this Act.
(2)A statement is sufficient for the purposes of subsection (1) if it includes the information specified by the regulations.
(3)A person to whom an order is directed may, within 14 days after service of the order, appeal against the order to the District Court.
Section 257 empowers a council to take action to do whatever was required by order when the person to whom the order was issued has failed to comply with its terms. Section 258 provides that a failure to comply with an order of council made pursuant to this part of the Act is an offence:
A person who contravenes or fails to comply with an order under this Part is guilty of an offence.
Maximum penalty: $750.
Expiation fee: $105.
The Appellant’s Case
Counsel for the appellant asserted before this Court that the section 254 order was issued in jurisdictional error. The order was issued ultra vires and as a consequence was a nullity. Counsel submitted that the magistrate ought to have held that, on its proper construction, section 254 did not enliven a discretion to issue the order.
Counsel submitted that the magistrate ought to have found that a discretion to issue the order was not enlivened. Counsel submitted this for three reasons:
(1)The signs erected by the appellant on his property were intended to convey political views to passers-by.
(2)The magistrate concluded that it was “very arguable” that the signs were neither unsightly, nor did they detract from the amenity of the locality.
(3)The magistrate also concluded that it was arguable that it was not necessary for the respondent to order their removal to ameliorate an unsightly condition.
Counsel contended that the magistrate ought to have held that such an order amounted to a total prohibition on the appellant and Ms Inglis from communicating about government or political matters. For this reason it was contended that the order was incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government, and was otherwise so broad as to be invalid.
As a consequence, counsel said, the magistrate ought to have held that such an order was invalid and a nullity and issued in jurisdictional error.
In relation to the proper application of the relevant High Court authorities on the issue of freedom of political expression, counsel for the appellant submitted to this Court that the magistrate ought to have held, in accordance with Australian Capital Television v The Commonwealth,[8] that an interference with the means of political communication is in itself an interference with political communication and that therefore the notice was issued in jurisdictional error.
[8] Australian Capital Television v The Commonwealth (1992) 177 CLR 104 at 145-146; 175; 221 and 240-241.
Counsel contended that the magistrate ought to have held that there was insufficient evidence to prove beyond reasonable doubt that there had been a breach of the first requirement of the order, namely that the appellant had failed to remove from the land, on the dates alleged in the complaint, “all hoardings, blackboards, signs, and associated structures or similar objects visible from Commercial Road, Port Noarlunga forthwith”.
Counsel further submitted that the magistrate ought to have held that the complaint alleged a breach of only the second requirement of the purported notice, namely that the appellant “refrain from placing any hoardings, blackboards, signs, structures or similar object on ‘land’ so as to be visible from Commercial Road, Port Noarlunga South”.
A Preliminary Issue
At the hearing of the appeal, it became apparent that the terms of the complaint did not reflect the entire terms of the section 254 order. Each count of the complaint, on its face, related only to the second requirement of the section 254 order and not to the first. In each count, it was stated that the appellant “contravened the Order by placing blackboard signs on the land so as to be visible from Commercial Road, Port Noarlunga South”. Nowhere was it alleged that the appellant contravened the order by failing to remove the blackboard signs that were on the land at the time of the issuance of the order.
At trial, the parties and the magistrate all proceeded on the basis that the complaint alleged breaches of the order by the appellant in failing to remove the blackboards and signs. The complaint did not particularise any alleged failure to remove. However, the agreed facts did include admissions of the alleged acts of “placing”.
Until this problem was raised during the hearing of the appeal, it appears to have been overlooked by both parties and by the magistrate. This is evident from the passage of the magistrate’s reasons set out above, where the magistrate concluded that section 254 did provide the respondent with the power to make a removal order, and that, in making that order, there was no doubt that the respondent exercised its power pursuant to that section and complied with the terms of that section. As the magistrate observed:
... relative to the matter before the court [the respondent] may order a person being the owner or occupier of land to remove a structure or object on the land that [the respondent] regards as unsightly and detracts significantly from the amenity of the locality in which the land is situated if it is considered by [the respondent] necessary to ameliorate an unsightly condition. The section otherwise has extensive provisions in addition to these powers but they are not relevant to this action.
The magistrate failed to address the subject matter of the complaint - the alleged acts of placing - in contravention of the section 254 order. Instead, the magistrate only addressed “a failure to remove”. These alleged acts were not the subject of the complaint.
Accordingly, it is clear that the parties and the magistrate proceeded at trial under a serious misapprehension as to the nature of the proceedings. For this reason, the appeal should be allowed. Questions then arise as to the appropriate consequential orders to be made. Should the complaint be relisted before the Magistrates Court? Should an amendment be allowed to the complaint? Should other orders be made?
Ultra vires
This Court was asked to determine whether the order concerning the placing of signs was issued within the power conferred upon the respondent by section 254 of the Local Government Act 1999. The appellant has raised this issue on appeal by way of collateral attack.
Before this question can be considered, it is necessary to determine a preliminary issue, and that is whether the collateral attack is permissible at all, given that the appellant failed to challenge the validity of the order through the legislatively prescribed process provided for by section 256 of the Local Government Act 1999.
The magistrate proceeded upon the basis that the appellant was prevented, at trial, from challenging the validity of the order:
I turn now to the question of whether in these proceedings the [appellant] is now entitled to argue procedural unfairness or procedural invalidity of the [respondent’s]decision or the basis upon which it made its decision to issue this order.
This issue, as I earlier indicated, was discussed at some length in the pre-trial process and [counsel for the respondent] then tendered for my consideration the decisions in R v Wicks and Cocks and Hazell Pty Ltd v Muswellbrook Municipal Council referred to earlier in these reasons. I do not intend to refer to either of those decisions in detail. I take the view that the [appellant] in these proceedings, relying on those cases, is not prevented from challenging what I regard as the substantive validity of the respondent’s order, but is prevented, as part of his defence to these proceedings, challenging the correctness or procedural validity of the order made. In my view, on the face of the order, not varied or set aside on appeal, council possessed the relevant power and complied with the relevant sections of the legislation in making the order, which on its face is not invalid. Accordingly, I am unable to conclude that there is any substantive invalidity such as would require me to dismiss these charges.
Before this Court, the appellant contended that the collateral attack was permissible because the challenge to the issuance of the order was advanced on the basis of jurisdictional error, and was thereby central to the issues to be determined, and was not merely a procedural challenge. The appellant said that the error related to whether the respondent had the power to issue a section 254 order at all, and in particular an order concerning the placing of signs in the terms of the present order the subject of the complaint.
Counsel for the respondent accepted that the substantive nature of the respondent’s powers could be raised in these proceedings, but submitted that the appellant had the opportunity to seek full judicial determination of the appropriateness of the order pursuant to section 256 and did not avail himself of this opportunity. This, counsel for the respondent said, must affect the appellant’s capacity to challenge this order at this stage of the proceedings.
A decision of an administrative body that is affected by jurisdictional error is to be treated for relevant purposes as void ab initio, a nullity, and a person affected by the decision may treat it as such.[9] Such a decision may be set aside, and must be ignored by a court in collateral proceedings.[10]
[9] Posner v Collector for Interstate Destitute Persons (1946) 74 CLR 461 at 483.
[10] Housley v The Queen (1997) 192 CLR 69 at [79 - 80], [87], [100 - 105], [146].
Broadly, ultra vires is sufficient to found a defence to a prosecution where there are compelling indicia in statute to negative this position. This proposition is supported by the observation of the High Court in Attorney-General (Cth) v Breckler:[11]
If the determination of a complaint by the Tribunal be characterised as activity of an administrative nature, then in the absence of legislative prescription to the contrary, the determination would be open to collateral review by a court in the course of dealing with an issue properly arising as an element in a justiciable controversy of which the court was seised. This proposition recently was applied in this Court in Ousley v The Queen.
[11] Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [36].
Once it has been determined that it was open to the appellant to challenge the validity of the section 254 order, the question then to be determined is whether the order was within power.
A plain reading of section 254 of the Local Government Act 1999 indicates that the section is aimed at the amelioration of a static unsightly condition. The relevant parts of section 254, when read together, provide that:
a council may order a person to [take action considered by the council to be necessary to ameliorate an unsightly condition] or to refrain from [taking action considered by the council to be necessary to ameliorate an unsightly condition].
Section 254 does not seek to guard against possible unsightly conditions in an open-ended way in perpetuity. This is clear from a comparison between those parts of the section relevant to this matter and other parts of the section. Item 3 in column 1 permits a council to order a person “to do or to refrain from doing the thing specified in the order…”. Item 4 in column 1 permits a council to order a person “to refrain from using a caravan or vehicle as a place of habitation”.
It is reasonable to conclude, therefore, that if the legislature intended section 254 to confer upon a council the power to order a person to refrain from creating an unsightly condition on land, it would have employed similar language in item 1 to that used in items 3 and 4 in column 1. This is consistent with the well-established principle of statutory construction that it is reasonable to assume that, where legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently.
Even if section 254 is capable of an interpretation permitting a council to order a person to refrain from creating an unsightly condition, the second limb of the order the subject of these proceedings was nonetheless made beyond the scope of the respondent’s power. The second limb of the order stipulates that the appellant is to “refrain from placing any hoardings, blackboards, signs, structures or similar object on” his property. This has the effect of a mandatory injunction preventing the appellant from placing any object on his land that falls within the terms of the order. If valid, this would presumably have the effect of, for example, prohibiting the appellant from erecting a “For Sale” sign if he wished to advertise his property for sale, or from placing a sign on his letterbox to indicate that he no longer wished to receive unauthorised mail.
The section 254 order is therefore too broad to be deemed to be within the power of the respondent. As such, it could not give rise to a valid complaint. The complaint issued on 12 July 2004 is incapable of supporting any conviction.
Constitutional considerations
Having reached the conclusions that the complaint was flawed and that the limb of the notice encompassed in the complaint was ultra vires, it is unnecessary to consider the constitutional issues that the appellant sought to raise. There is little point in engaging in a lengthy discussion about constitutional issues that will have no practical bearing on the outcome. The remarks of Gummow and Hayne JJ in Re Patterson; Ex parte Taylor are relevant:[12]
[12] Re Patterson; Ex parte Taylor (2001) 207 CLR 391 [250]-[252].
In the early days of the Court, Higgins J declared:
"Nothing would tend to detract from the influence and the usefulness of this Court more than the appearance of an eagerness to sit in judgment on Acts of Parliament, and to stamp the Constitution with the impress which we wish it to bear. It is only when we cannot do justice, in an action properly brought, without deciding as to the validity of the Act, that we are entitled to take out this last weapon from our armoury."
Higgins J drew support for this statement from what had been said by the United States Supreme Court in a case later described by Frankfurter J as a classical exposition.
A striking example of the precept that the Court should not decide constitutional questions unless necessary for the decision in the case is provided by the judgment of Starke J in Universal Film Manufacturing Co (Australasia) Ltd v New South Wales. The majority decided the case on the footing that upon the proper construction of the statute in question, assuming it to be valid, no liability of which the plaintiff complained was imposed upon it. Starke J was of the contrary view but nevertheless declined to go on to consider validity. His Honour said:
"I refrain from doing so because I am in entire agreement with the view of the majority that the jurisdiction of this Court to determine whether a statute contravenes the Constitution should only be invoked, and according to the settled practice of this Court is only invoked, when it is found necessary to secure and protect the rights of a party before it against unwarranted exercise of legislative power to his prejudice."
In the same case, Isaacs A-CJ, one of the majority, declared:
"Some very powerful arguments were addressed to us on the subject of invalidity. In the circumstances no expression of judicial opinion on that subject would be in accordance with recognised practice or be more than obiter. I therefore say nothing on that subject but reserve my opinion for a future occasion should the necessity arise."
That settled practice has continued and should be retained.
Conclusion
At the hearing of the appeal, the Solicitor-General submitted that the appropriate course to follow in the event that the appeal was allowed would be for the matter to be remitted to the Magistrates Court where the complaint could be amended and the matter dealt with upon that basis. Counsel for the respondent agreed that this would be the appropriate course of action for this Court to follow.
However, as this entire process in these proceedings has miscarried from the outset, it is inappropriate to keep the proceedings on foot. There is nothing to prevent the respondent from issuing a fresh notice to the appellant requiring removal, in accordance with the procedure set out in the Local Government Act 1999 if it wishes to press this matter.
I would allow the appeal. Section 254 of the Local Government Act 1999 did not empower the respondent to make the order in the terms that it did. The complaint is bad on its face. Accordingly, I would order that the convictions recorded against the appellant and the penalties imposed be set aside.
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