Fairfield City Council v Bryant

[2007] NSWLC 11

Local Court of New South Wales

CITATION:	Fairfield City Council v Bryant [2007] NSWLC 11
JURISDICTION:	Criminal
PARTIES:	Fairfield City Council Joseph Richard Bryant
FILE NUMBER:
PLACE OF HEARING:	Bankstown Local Court
DATE OF DECISION:	03/21/2007
MAGISTRATE:	Magistrate G Blewitt
CATCHWORDS:	Freedom of speech/expression - Constitutional challenge
LEGISLATION CITED:	Judiciary Act 1903, Section 78B Local Government Act, 1993, Section 632
CASES CITED:	Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; (1997) 145 ALR 96 Australian Capital Television Pty. Limited and others and The State of New South Wales v. The Commonwealth of Australia and another (1992) 177 CLR 106 Mulholland v Australian Electoral Commission (2004) 209 ALR 582. Coleman v Sellers - (2000) 181 ALR 120 Coleman v Power - (2004) 209 ALR 182
REPRESENTATION:	Mr Thompson for Fairfield City Council Ms Georgina Wright, Crown Solicitor’s Office for the Attorney General of NSW Mr Bryant (defendant) unrepresented
ORDERS:	No infringement of constitutional rights, case proved beyond reasonable doubt.

JUDGMENT

1. The defendant has pleaded not guilty in respect of three Court Attendance Notices which were issued in connection with of three separate parking offences and by consent the matters were heard together.

2. At the commencement of the hearing on 16 November 2006 the defendant challenged the court’s jurisdiction to hear the matters, his contention being that the actions of Fairfield City Council in issuing the infringement notices had breached his constitutional right of freedom of speech.

3. After an inquiry, when I sought some contextual information to understand the defendant’s initial submission, the parties agreed, on the basis that the defendant was not contesting the facts, that the prosecution would tender the documents being relied upon to prove its case, and the defendant would make oral submissions. Before dealing with the defendant’s submission, it is helpful to set out the background and the undisputed facts.

Background and undisputed evidence

4. It appears the defendant was a candidate in elections being held within the National Roads and Motorists Association (NRMA) in October 2005. In this regard the defendant was responsible for a political advertising hoarding being erected on an “A” frame fitted to a trailer, registered number N81286. It is alleged that on three occasions during October 2005 this trailer was illegally parked at various locations within the control of Fairfield City Council (FCC).

5. The advertising hording on the trailer displayed the following words on one side of the trailer:

“Win $43000 Subaru, Rescue your NRMA, Vote 1 Joe Bryant,
Vote early October,
and the words:
“ 1 Joe Bryant, vote against – high fuel prices – motorist used as tax cow – toll roads etc. etc.
Vote early October. Vote NRMA October. Win $43,000 Subaru”
on the other side of the trailer.
At the rear end of the trailer the words “Vote October. Win $43000 Subaru. appeared.

6. The uncontested evidence establishes that in the first instance the trailer was parked in a FCC reserve at the corner of Wetherill Street and The Horsley Drive, Wetherill Park on 26 October 2005, without FCC permission. There was a large permanent FCC sign erected near the location where the trailer was parked, setting out certain prohibited activities within the reserve. The sign read:

Local Government Act 1993. Section 632

These activities are prohibited in this public place
The taking or consuming of alcoholic liquor. Depositing rubbish. The breaking of any bottle, glass or glass receptacle. Camping or staying overnight. Interfering with Council furniture or with flora, fauna and gardens. The playing of golf, archery, flying model aeroplanes and any game or the doing of any act likely to injure, endanger, obstruct, inconvenience or annoy any person. Discharging of rifles or firearms. The taking in of motor vehicles (except in a proclaimed parking area) the riding of motorcycles or mini-bikes; the taking in of horses, cattle, goats, greyhounds or unleashed dogs; the lighting of fires (except in fire places constructed by Council for that purpose).

Council permission must be obtained prior to
advertising, trading, distributing handbills, collecting money, the erection of canvas structures or awnings or using sound amplifying devices in this public place.
PENALTY
A maximum fine of up to $500.00 is provided by the Act in respect of the above mentioned activities. An authorised person may remove offenders from this Land.

7. On the day of the alleged offence Mr Warren Robertson, a FCC Community Enforcement Officer, issued an infringement notice for $110 to the owner of the trailer, registered number N81286, for parking a vehicle on a reserve, the offence being described in the infringement notice as “Failing to comply with a notice in a public place”. There is no dispute that the defendant was the registered owner of the trailer or that it was parked on a council reserve without FCC permission. Mr Robertson’s statement was admitted into evidence by consent. It appears from Mr Robertson’s statement that prior to the issuing of the infringement notice, both the local NRMA office and the defendant were contacted by the FCC and advised to remove the trailer. Mr Robertson’s statement, a copy of the infringement notice, photographs of the trailer and the FCC sign, copies of FCC complaint forms and a diagram, were admitted into evidence, by consent, as exhibit 2. The defendant does not agree that he was contacted prior to the infringement notice being issued, but conceded he was not going to take issue with this aspect of the case.

8. Separate proceedings were commenced against the defendant in respect of a similar alleged offence committed on the following day, namely 27 October 2005. The evidence is that the trailer was parked in the same location in the public reserve, as mentioned above. By consent the statement of the Enforcement Officer, Gregory Pospelyj, photographs of the location and offending trailer, the FCC sign prohibiting certain activities in the reserve, and a copy of the infringement notice were admitted into evidence, and marked as exhibit 3. Oddly enough, it appears from these photographs that the wording of the FCC notice is different from the wording appearing in exhibit 2, and it is clear that the signs are different. Nothing turns on this apparent error or mix-up in relation to the photographs of the sign. The infringement notice was for $110 for “Failing to comply with notice in public place”.

9. A third infringement notice, for $75, was issued on 29 October 2005, the offence being described as “Stop on path/strip in built up area”. The uncontested evidence is that the same trailer was parked on a “Strip” on the northern side of a public road at the corner of Fairfield Street and Pine Road, Fairfield. The statement of Enforcement Officer Pospelyj, photographs, copy of the infringement notice, and a letter signed by the defendant dated 10 November 2006, in which he states “I was the person responsible for using the A-frame trailer registered no N81286 on 26, 27 and 29 October 2005 at the time of the alleged offences”, were admitted into evidence as exhibit 1. In the same letter the defendant indicated he was prepared to consent to the tender of the statements of the two Enforcement Officers and that he did not wish to cross-examine them or for them to attend court.

10. Following the tender of these documents the prosecution closed its case. I held that there was a prima facie case.

The Defendant’s submission

11. The defendant was then invited to make his submissions. Prior to completing his submissions, and having regard to their nature, I interrupted the defendant to inquire whether he had issued notices to the Attorneys-General pursuant to Section 78B of the Judiciary Act, 1903. The defendant replied in the negative and I invited him to complete his submissions, indicating that it would be my intention, having regard to the nature of his submissions, to adjourn the matter so that such notice could be given.

12. The defendant had reduced his submissions to writing and I set them out here under:

“No Commonwealth or State law – or local government ordinance can be enforceable if such contravenes the Commonwealth Constitution S. 109.

My submission is that a law could be within the Constitution in most applications and be outside the Constitution in other applications if that law failed to specify under which circumstances that the law may not apply.

The High Court of Australia has ruled that free speech is a right under the Constitution.

To be Free – means to be unstrained (sic) . Unrestrained in the case of free speech, freedom of expression and political opinion.

To impose penalties on the exercise of free speech is repugnant to the concept of free – without restraint.

The use of public owned land for the purpose of the exercise of free speech – freedom of expression in dealing with issues of concern to the public would seem like a proper use of the public-owned land, in particular public-owned land that is rarely, if ever used for anything other than to spend rate payers money to maintain.

Provided that no person, or property, is put at risk and the way of traffic be it foot or otherwise is not blocked by the use of public owned land for the purpose of freedom of expression on political matters at a time when a political process is in train – there is no legitimate or moral reason why public owned land should not be used in the interests of the public whether or not individual interest may be seen to be involved.

It seems to me that as powerful as the need for the fundamental right to free speech is – the greater need is the fundamental right of the people to have unfetted (sic) access to all that is said – on all matter that may impact on their lives. A fundamental right mostly denied to Australians.

Free speech ceases to exist – when permission, fee or penalty is required.

The laws relied on under which the alleged offences are said to have been committed have the effect of seriously limiting my right to free speech – to my freedom of expression and to my freedom to express a political opinion – this contested application of those laws that contravene the Commonwealth Constitution the High Court of Australia’s ruling and Australia’s international commitments to human rights and as a result must count for naught.

The Local Government Act 1993 s 632 that the plaintiff relies on – to justify the rules displayed on the plaintiff’s sign that the plaintiff also relies on – to substantiate its claim – that an offence was committed should not be relied on in this case or any case involving the exercise of free speech and the right of people to have unfetted (sic) access to all that is said on matter that may have an impact on their lives.

I submit that where, the right to free speech is being exercises (sic) section 632 of the Local Government Act 1993 along with other laws designed to restrict the use of public owned space do not apply, cannot apply – because if they are repugnant to the Constitution and Australia’s undertaking to uphold certain principles of fundamental freedom.

The Universal Declaration of Human Rights, agreed to unanimously by the nations of the world on 10 December 1948, sets out the basic rights and freedoms of all men, women and children. 2 – 21 of the Declaration

· Civil and political rights are derived from Western democratic traditions and a political philosophy of ‘liberal individualism’. These rights are often described in a negative form (‘freedom from’) rather than a positive form (‘rights to’). They attempt to safeguard the individual, alone and in association with others, against the misuse of political authority.

International Covenant on Civil and Political Rights (ICCPR) – Schedule 2, Human Rights and Equal Opportunity Commission Act 1986. Entry into force for Australia (except Article 41): 13 November 1980. Article 19 Section 2

· “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

The very act that the plaintiff relies on the Local Government Act 1993 s 632 makes clear allowances for action contrary to the Act – a section the plaintiff could have relied on but chose not to

· Local Government Act 1993 – Sect 632.

Acting contrary to notices erected by councils.
632 Acting contrary to notices erected by councils
(2A) However, a notice:
(b) must not prohibit or regulate the taking of a vehicle into, or the driving, parking or use of any vehicle in any public place that is a road or road related area within the meaning of the Act. It should be noted that contrary to the reference in the defendant’s submissions

quoted above, relating to Section 632(2A) of the Local Government Act, that subsection actually provides:

(a)…….

_ _ _

Irrespective of the convenient names the plaintiff has come up with for selected areas of land that are clearly part of a public road reserves or communication corridor, reserved for future extension of roadways or other communication corridors. The convenient names serve no practical purposes unless the purpose it (sic) to confuse the public for the purpose of imposing a penalty for the use of that land.

It is clear that council assumes the authority to grant permission – at a price – to place signs in public places, but to seek permission and/or to be required to pay a fee defeats the fundamental constitutional right of free speech and as a result permission was not sought in the cases (sic) now before the court.

In any case – it is my experience that many such decisions are made under political bias conditions, this being the clear risk it would be rather pointless seeking permission.

I respectfully submit that the alleged offences be dismissed – with costs to the plaintiff (sic) .”

13. The defendant did not refer to any reported decisions or authorities to support his submissions.

The prosecution position

14. Mr Thompson, for the FCC, did not address the court at any length in relation to the defendant’s submissions, but did refer to the High Court case of Australian Capital Television Pty. Limited and Others and the State of New South Wales -v- The Commonwealth of Australia and Another (1992) 177 CLR 106. Mr Thompson did not contest the existence of a constitutional right to freedom of speech/expression but submitted that the High Court, in recognising such rights, has held that they are not absolute.

The Judiciary Act, 1903

15. At the end of the defendant’s submissions I took the view that he was raising matters arising under the Constitution or involving its interpretation, and accordingly it was the duty of the court “not to proceed in the cause” until the requirements of the Judiciary Act were complied with. Accordingly, I adjourned the proceedings until 8 March 2007 to enable the defendant to provide notice in accordance with Section 78B of the Act. I also indicated that I would allow the prosecution and the defendant an opportunity to make further submissions in light of any appearances on behalf of the Attorneys-General.

16. The relevant parts of Section 78B are set out in annexure 1 to this judgment.

17. Extracts of other relevant legislation pertaining to this case are also set out in annexure 1 to this judgment, namely the Local Government Act 1993, Sections 632, 650 and 651, and the Road Transport (General) Act 2005, section 3.

Intervention by the Attorney General for New South Wales

18. When the hearing resumed on 8 March 2007 there was one intervention pursuant to the notices issued under Section 78B of the Judiciary Act, namely an intervention on behalf of the Attorney General for New South Wales.

19. Ms Georgina Wright from the Crown Solicitor’s Office appeared on behalf of the Attorney General and presented written submissions which are attached at annexure 2. Mr Thompson for FCC adopted these submissions.

20. The defendant indicated that he was taken by surprise by these submissions and sought an adjournment of some months for him to obtain legal advice. I was not prepared to grant a lengthy adjournment to the defendant and the matter was stood over to 21 March to enable the defendant to consider the submissions and to obtain legal advice.

21. On 21 March the defendant provided written submissions in response to the submission made on behalf of the Attorney General, and provided additional written submissions in relation to the charges before the Court. I have read and considered those submissions. (They are not copied here and are to be found on the court file.)

Consideration of the Defendant’s submission

22. There can be no doubt, nor is the prosecution challenging, that citizens and residents of Australia enjoy freedoms of communication, speech and expression.

23. Limited implied rights of political freedom of speech were recognised by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; (1997) 145 ALR 96 and in Capital Television Pty. Limited and Others and the State of New South Wales -v- The Commonwealth of Australia and Another (1992) 177 CLR 106.

24. The existence of an implied Constitutional guarantee of freedom of communication in relation to matters of public affairs and political discussion was confirmed by all High Court Judges in Capital Television P/L -v- The Commonwealth, supra.

25. In relation to such freedom the Court said in that case, per Dawson J at paragraph 16 of his decision:

“16. Thus the Australian Constitution, unlike the Constitution of the United States, does little to confer upon individuals by way of positive rights those basic freedoms which exist in a free and democratic society. They exist, not because they are provided for, but in the absence of any curtailment of them. Freedom of speech, for example, which is guaranteed in the United States by the First Amendment to the Constitution, is a concept which finds no expression in our Constitution, notwithstanding that it is as much the foundation of a free society here as it is there. The right to freedom of speech exists here because there is nothing to prevent its exercise and because governments recognize that if they attempt to limit it, save in
accepted areas such as defamation or sedition, they must do so at their peril. Not only that, but courts recognize the importance of the basic immunities and require the clearest expression of intention before construing legislation in such a way as to interfere with them. The fact, however, remains that in this country the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve for itself its own shared values.”

26. In relation to such freedom, the Court also held, however, that the concept of freedom of communication is not an absolute. In particular His Honour Mason C.J. said at paragraph 45 of his judgment:

“In most jurisdictions in which there is a guarantee of freedom of
communication, speech or expression, it has been recognized that the freedom is but one element, though an essential element, in the constitution of "an ordered society" ( Hughes and Vale Pty. Ltd. v. The State of New South Wales (No.2) (1955)93 CLR 127, per Kitto J. at p 219 ) or a "society organized under and controlled by law" ( Samuels v. Readers' Digest Association Pty. Ltd. (1969) 120 CLR 1, per Barwick C.J. at p 15 ). Hence, the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public.”

27. His Honour said, at paragraph 46 and following:

“A distinction should perhaps be made between restrictions on
communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted.

“In the first class of case, only a compelling justification will warrant the imposition of a burden on free communication by way of restriction
and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest which is invoked to justify the burden on communication. Generally speaking, it will be extremely difficult to justify restrictions imposed on free communication which operate by reference to the character of the ideas or information. But, even in these cases, it will be necessary to weigh the competing public interests, though ordinarily paramount weight would be given to the public interest in freedom of communication…… So, in the area of public affairs and political discussion, restrictions of the relevant kind will ordinarily amount to an unacceptable form of political censorship.

“On the other hand, restrictions imposed on an activity or mode of
communication by which ideas or information are transmitted are more susceptible of justification….. Whether those restrictions are justified calls for a balancing of the public interest in free communication against the competing public interest which the restriction is designed to serve..… If the restriction imposes a burden on free communication that is disproportionate to the attainment of the competing public interest, then the existence of the disproportionate burden indicates that the purpose and effect of the restriction is in fact to impair freedom of communication…….. In weighing the respective interests involved and in assessing the necessity for the restriction imposed, the Court will give weight to the legislative judgment on these issues. But, in the ultimate analysis, it is for the Court to determine whether the constitutional guarantee has been infringed in a given case. And the Court must scrutinize with scrupulous care restrictions affecting free communication in the conduct of elections for political office for it is in that area that the guarantee fulfils its primary purpose.”

28. Further, Gaudron J said in the same case, at paragraph 33 of her judgment:

“33. Recourse to the general law reveals that freedom of speech (which, of course, is wider than freedom of political discourse) is not absolute, but may be regulated and, in certain circumstances, may be severely restricted. As the implied freedom is one that depends substantially on the general law, its limits are also marked out by the general law. Thus, in general terms, the laws which have developed to regulate speech, including the laws with respect to defamation, sedition, blasphemy, obscenity and offensive language, will
indicate the kind of regulation that is consistent with the freedom of
political discourse.”

29. On the question of implied constitutional rights and freedoms, the case of Capital Television P/L -v- The Commonwealth has been affirmed in the High Court decision of Mulholland v Australian Electoral Commission - (2004) 209 ALR 582.

30. The Supreme Court of Queensland (Court of Appeal) in Coleman v Sellers - (2000) 181 ALR 120 also followed Capital Television P/L -v- The Commonwealth in respect of the question of an implied constitutional freedom of communication in the context of a City Council by-law prohibiting public demonstrations or public addresses in a pedestrian mall without permit from the council. In that case it was held, per Pincus JA and Jones J (Muir J dissenting):

(i) In determining whether a law infringes the freedom of communication implied in the Constitution, it must be determined: (1) whether the law effectively burdens freedom of communication about government or political matters either in its terms, operation or effect; and (2) if so, whether the law is reasonably appropriate and adapted to serve a legitimate end. ( Lange v Australian Broadcasting Corp (1997) 189 CLR 520; 145 ALR 96 , applied.)

(ii) The by-law was reasonably appropriate and adapted to serve a legitimate end taking into account the following factors: the by-law was limited in its operation to pedestrian malls, a very small area of the City of Townsville; it was not an absolute prohibition; and its purpose was to allow the orderly use of the pedestrian malls.

31. Apart from the constitutional challenge, it would appear that the defendant also raises a further issue, namely that Section 632(2A)(b) of the Local Government Act does not permit councils to prohibit or regulate the parking or use of any vehicle in any public place that is a road or road related area. The relevant provisions of the Act are set out in annexure 1 to this judgment.

32. Having regard to the evidence and the charges, it would appear that the defendant’s argument is only applicable to the first two offences which relate to offences contrary to Section 632, i.e. failing to comply with a Section 632 notice. As mentioned above the uncontested evidence is that in respect of the first two offences, the accused’s trailer was parked in a public reserve on two consecutive days, which in my view cannot be regarded as being either a road or road related area.

33. The third offence, namely the infringement notice issued on 29 October 2005 for the offence of “Stop on path/strip in built up area” does not relate to Section 632, and hence the restriction imposed by Section 632(2A) has no application in this case.

Conclusion

34. In reaching my conclusion in this matter, I have had regard to the submissions made on behalf of the Attorney General for New South Wales, with which I respectfully agree. I have also considered the additional written submissions produced by the defendant.

35. Having regard to the High Court’s ruling that the concept of freedom of speech/communication/expression is not an absolute, and that the guarantee of the freedom does not postulate that it must always and necessarily prevail over competing interests of the public, I am of the view that the defendant has failed in his submission that the implied freedom of communication under the Constitution cannot be restrained or fettered.

36. Further taking into account the provisions of the Local Government Act relevant to this case it cannot be said, in my view, that the Act was an act designed to interfere with the freedom of speech or the freedom of communication – rather it is an Act relating to good governance and the use of public land for the use and enjoyment of the whole community. Accordingly I find that the Local Government Act does not contravene the Constitution of the Commonwealth of Australia, and the defendant must fail in his submission that public land cannot be the subject of any restrictions.

37. Therefore, and using the analogy of the right to public demonstration, which often requires official permission, I disagree with the defendant’s submission that freedom of speech ceases to exist if permission or a fee is required prior to the exercise of that right or if a penalty is imposed for non-compliance with, in this case, the Local Government Act.

38. To the extent that the provisions of the Local Government Act may restrict or impose a burden on free communication, and in my view they do not, then it must be established by the defendant that those restrictions are disproportionate to the competing public interest of good governance. I am not satisfied, even assuming that the Act is restrictive, that the defendant has established that the Act is disproportionate.

39. Further, I am unable to accept that a requirement that the defendant obtain permission from the FCC to place his advertising trailer on Council property can be said to have the effect of “seriously limiting” his right to free speech, or his freedom of expressing a political opinion, if that is what the advertisements on the trailer’s hording amount to.

40. In conclusion, I am not satisfied that any constitutional guarantee has been infringed and I find the offences proved beyond a reasonable doubt.

Graham Blewitt

Magistrate

21 March 2007

RELEVANT LEGISLATION -EXTRACTS

78B Notice to Attorneys-General
(1) Where a cause pending in a federal court including the High
Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b) may direct a party to give notice in accordance with that subsection; and
(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.

(3) For the purposes of subsection (1), a notice in respect of a cause:
(a) shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and
(b) is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause.


(4) ……

(5) ……

Local Government Act 1993.

(1) A person who, in a public place within the area of a council, fails to comply with the terms of a notice erected by the council is guilty of an offence.

Maximum penalty: 10 penalty units.

(2) The terms of any such notice may relate to any one or more of the following:
(a) the payment of a fee for entry to or the use of the place,
(b) the taking of a vehicle into the place,
(b1) the driving, parking or use of a vehicle in the place,
(c) the taking of any animal or thing into the place,
(d) the use of any animal or thing in the place,
(e) the doing of any thing in the place,
(f) the use of the place or any part of the place.

(2A) However, a notice:

(a) must not prohibit the drinking of alcohol in any public place that is a public road (or part of a public road) or car park, and
(b) must not prohibit or regulate the taking of a vehicle into, or the driving, parking or use of any vehicle in, any public place that is a road or road related area within the meaning of the Road Transport (General) Act 2005. Section 3 of the Road Transport (General) Act 2005 defines
“ road ” as meaning an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles; and
“ road related area ” as meaning:
(a) an area that divides a road, or
(b) a footpath or nature strip adjacent to a road, or
(c) an area that is open to the public and is designated for use by cyclists or animals, or
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or
(e) a shoulder of a road, or

(f) any other area that is open to or used by the public and that has been declared under section 15 to be an area to which specified provisions of this Act or the regulations apply.

_ _ _

Note. A council may establish an alcohol-free zone under Part 4 of this Chapter for a public place that is a public road (or part of a public road) or car park (or part of a car park).

(3) The terms of a notice referred to in this section may:
(a) apply generally or be limited in their application by reference to specified exceptions or factors, or
(b) apply differently according to different factors of a specified kind,
or may do any combination of those things.

650 Free parking areas

(1) The driver of a vehicle parked in a free parking area otherwise than as permitted by a notice or sign erected by the council is guilty of an offence.

Maximum penalty: 5 penalty units.

(2) The terms of any such notice or sign may relate to any one or more of the following:

(a) the time during which the public may use the free parking area,

(b) the maximum period for which a vehicle may be parked in the free parking area (or in any part of the free parking area),
(c) the designation of a parking space within the free parking area as a space for the sole use of persons with disabilities.
(3) For the purposes of this section, a vehicle parked otherwise than as permitted by such a notice or sign includes a vehicle parked in a parking space designated as a space for the sole use of persons with disabilities, unless:
(a) a parking authority for a person with disabilities is displayed on the vehicle in the manner specified in the authority, and

(b) the conditions specified in the authority are being observed, and

(c) the authority is in force.

(4) If spaces in which a vehicle may be parked in a free parking area are marked by the council (for example, by means of painted lines or by studs, pads or plates), a person must not cause a vehicle to be parked in a free parking area:

(a) otherwise than in such a parking space, or

(b) in a parking space in which another vehicle is parked, or

(c) so that any part of the vehicle is on or across (or partly on or across) any line, stud, pad, plate or other mark defining the space or so that the vehicle is not wholly within the space.

Maximum penalty: 5 penalty units.

(5) The driver of a vehicle in a free parking area must at all times observe and comply with any reasonable direction of any authorised person regarding the parking or movement of the vehicle within the area.

Maximum penalty: 5 penalty units.

(6) The owner of any private land may enter into an agreement with the council under which the land, or any part of the land, is set aside for use as a free parking area.
(7) It is the duty of the Director-General to establish guidelines to be followed by councils in relation to agreements of the kind referred to in subsection (6), including guidelines as to:
(a) the circumstances in which a council may enter into such an agreement, and
(b) the matters for which such an agreement must or must not make provision, and
(c) the exercise by a council of any functions conferred on it by such an agreement.

(1) This section applies to any offence against section 632 (1) or 650 (1) or (4) that arises from the parking of a vehicle, in this section referred to as a “ parking offence ”.
(2) The owner of a vehicle with respect to which a parking offence is committed is, by virtue of this section, guilty of the offence as if the person were the actual offender, unless:
(a) if the offence is dealt with by penalty notice, the owner satisfies a prescribed officer that the vehicle was, at the relevant time, a stolen vehicle or a vehicle illegally taken or used, or
(b) in any other case, the court is satisfied that the vehicle was, at the relevant time, a stolen vehicle or a vehicle illegally taken or used.
(3) Nothing in this section affects the liability of the actual offender but, if a penalty has been imposed on, or recovered from, any person in relation to a parking offence, no further penalty can be imposed on or recovered from any other person in relation to the offence.
(4) The owner of a vehicle is not, by virtue of this section, guilty of an offence if, where the offence is dealt with by penalty notice:
(a) within 21 days after service on the owner of the penalty notice in respect of the offence, the owner gives notice to the prescribed officer (verified by statutory declaration) of the name and address of the person who was at all relevant times in charge of the vehicle, or
(b) the owner satisfies the prescribed officer that the owner did not know, and could not with reasonable diligence have ascertained, that name and address.
(5) The owner of a vehicle is not, by virtue of this section, guilty of an offence if, in any other case:
(a) within 21 days after service on the owner of a summons in respect of the offence, the owner gives notice to the informant (verified by statutory declaration) of the name and address of the person who was at all relevant times in charge of the vehicle, or
(b) the owner satisfies the court that the owner did not know, and could not with reasonable diligence have ascertained, that name and address.
(6) If a statutory declaration supplying the name and address of a person for the purposes of this section is produced in any proceedings against the person in respect of the parking offence to which the declaration relates, the declaration is evidence that the person was, at all relevant times relating to that offence, in charge of the vehicle involved in the offence.
(7) A statutory declaration that relates to more than one parking offence is taken not to be a statutory declaration supplying a name and address for the purposes of this section.
(8) This section does not limit any other provision of this Act, any provision of any other Act or any provision of any instrument in force under this or any other Act.

(9) In this section:

(a) a reference to a penalty notice is a reference to a penalty notice under Part 5.3 of the Road Transport (General) Act 2005, and
(b) a reference to an owner of a vehicle is a reference to the responsible person for the vehicle within the meaning of the Road Transport (General) Act 2005, and
(c) a reference to a prescribed officer is a reference to an authorised officer within the meaning of the Road Transport (General) Act 2005.

Road Transport (General) Act 2005

Section 3 of the Road Transport (General) Act 2005 defines

“ road ” as meaning an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles; and

“ road related area ” as meaning:
(a) an area that divides a road, or
(b) a footpath or nature strip adjacent to a road, or
(c) an area that is open to the public and is designated for use by cyclists or animals, or
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or
(e) a shoulder of a road, or
(f) any other area that is open to or used by the public and that has been declared under section 15 to be an area to which specified provisions of this Act or the regulations apply.