The Corporation of the Town of Thebarton (Respondent) v Carmelo Palumbo (Appellant) No. 4185 Judgment No. SCGRG 93/1476 Number of Pages 6 Local Government By-laws Validity (1993) 81 Lgera 228 (1993) 61 Sasr 577
[1993] SASC 4185
•24 September 1993
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J
CWDS
Local government - by-laws validity - Appeal from conviction in Magistrates Court of counts involving breach of by-law relating to driving a vehicle of a class excluded by the by-law in a street - contended that by reason of the repeal of provisions of the Local Government Act relating to the procedures for the enactment of by-laws before the by-law in question was published in the Government Gazette, other provisions substituted by the amending legislation applied, with the result that the by-law did not come into effect until the expiration of four months following that publication, which was a period extending beyond the date of the alleged offence - held that s.16(3) of the Acts Interpretation Act was of application, with the result that the repealed Provisions continued in force for the purpose of completing the process of enactment of the by-law, with the consequence that it was effective from the date of publication in the Gazette, and the new provisions were not of application. Local Government Act 1934ss.668, 669 and 671. Local Government (Reform) Amendment Act 1992. Subordinate Legislation Act 1978ss.10 and 11. Acts Interpretation Act 1915s.16
HRNG ADELAIDE, 15 September 1993 #DATE 24:9:1993
Counsel for appellant: Mr S. Apps
Solicitors for appellant: Patsouris and
Associates
Counsel for respondent: Mr T Bailey
Solicitors for respondent: Trevor Bailey
ORDER
Appeal dismissed.
JUDGE1 PERRY J The appellant appeals against his conviction in the Adelaide Magistrates Court on two counts of breaching by-law No 2 of the Town of Thebarton. The two counts allege that on 11 July 1992 the appellant was the owner or driver of a Holden motor vehicle - "..which was driven on that part of Ashley Street being a public place to which vehicles of the defendant's class were excluded." 2. The defence in the Magistrates Court and the appeal to this Court were both conducted by reference to one ground only, that is, as to the validity of the by-law in question. It is the appellant's contention that, for reasons which I will come to, the by-law is invalid. 3. The relevant parts of the by-law read as follows:
"TOWN OF THEBARTON BY LAW NO 2
Streets and Public Places
To regulate the management of streets, roads and public places
vested in or under the control of the council. A. By-law No 7-
In respect of Vehicle Movement, By-law No 29-Streets and
Footways, By-law No 39-In respect of Height of Fences, hedges
and Hoardings within six metres of Intersections and Junctions,
By-law No 43-Heavy Loads and By-law No 51-Street Traders, and
all amendments to such By-laws, are hereby repealed.
Definitions
1. In this By-law-
(1) 'exempt vehicle' has the same meaning as in section 40 of
the Road Traffic Act, 1961;
(2) 'public place' means any public place (including parklands
and reserves) vested in or under the control of the council; and
(3) 'street' and 'road' refer to a street or road vested in or
under the control of the council.
2. ......
Vehicles excluded
3. (1) No person shall drive or propel a vehicle on any
street or part thereof where the council has excluded vehicles
generally pursuant to section 359 of the Local Government Act,
1934.
(2) No person shall drive or propel a vehicle of a class on
any street or part thereof where the council has excluded
vehicles of that class pursuant to section 359 of the Local
Government Act, 1934.
Exempt vehicles
4. .......
The foregoing By-law was duly made and passed at a meeting of
the council of the Corporation of the Town of Thebarton held on
20 August 1991 at which meeting eight out of the nine members
for the time being constituting the council were present.
(LS) A.P. O'RIELLEY, Mayor W. WACLAWIK, Chief Executive
Officer By command, ANNE LEVY, Minister for Local Government
Relations Dated 19 June 1992 Confirmed in Executive Council,
BASIL S. HETZEL, Lieutenant-Governor" 4. At the hearing in the Magistrates Court, a statement of agreed facts was tendered relating to observations on the day in question by a council inspector of the appellant's vehicle as it made its way through two road closures on Ashley Street. It is unnecessary further to refer to the agreed facts, as it was conceded on both sides that if the by-law is valid, the appellant was properly convicted. 5. At the time when the Council resolved to make the by-law, that is, as at 20 August 1991, the relevant provisions of the Local Government Act 1934 governing the passing and promulgation of by-laws were sections 668 and 669, which were then in the following terms:
"Passing of by-laws 668.
(1) No by-law can be made, except at a meeting of the council,
at which at least two-thirds of the members then in office are
present.
(2) No by-law has any force or effect unless-
(a) it has been signed by the mayor or chairman and the chief
executive officer; and
(b) in the case of a by-law made with respect to public
health-it has been approved in writing by the Central Board of
Health.
Confirmation of by-laws 669
(1) Subject to subsection (2), every by-law made under this
Act must be forwarded to the Minister for confirmation by the
Governor.
(2) A by-law forwarded to the Minister under subsection (1)
must be accompanied by a certificate, in the prescribed form,
signed by a legal practitioner certifying that, in the opinion
of the legal practitioner-
(a) the council has power to make the by-law by virtue of a
statutory provision specified in the certificate; and
(b) the by-law is not inconsistent with this Act or the
general law of the State.
(3) Every by-law that is confirmed by the Governor-
(a) must be published in the Gazette and laid before each
House of Parliament within 14 days after that publication if
Parliament is in session or, if Parliament is not then in
session, within 14 days after the commencement of the next
session of Parliament; and
(b) has effect as from the date fixed in the by-law or, if no
date is so fixed, as from the date of publication in the
Gazette.
(4) If either House of Parliament, pursuant to a notice of
motion given within 14 sitting days after a by-law is laid
before that House (notwithstanding that those 14 days, or some
of them, do not occur in the same session of Parliament as that
in which the by-law is laid before that House), passes a
resolution disallowing the by-law, it ceases to have effect.
(5) Notice of a resolution under subsection (4) must be
published in the Gazette." 6. For some reason not explained by the evidence, it was some considerable time after the meeting of the Council held on 20 August 1991 that the by-law was published in the Gazette. There is no material before me to say when the by-law was forwarded to the Minister for confirmation by the Governor pursuant to s.669(1). It must be assumed that the by-law, when it was forwarded to the Minister, was accompanied by a certificate complying with s.669(2). I have to assume that the other formalities required by the two sections were complied with, as I was informed by both counsel that I was to deal with the appeal on the footing that the only question was as to the repeal of ss.668 and 669, and their replacement by other provisions, the detail of which I will come to in due course. 7. It will be noted from the endorsements at the foot of the by-law in the form in which it was published in the Gazette, that it appears to have been signed by the Minister for Local Government Relations. It is not clear whether the words "dated 19 June 1992" in the Gazette refer to the date upon which she signed the by-law, or whether they refer to the date upon which it was confirmed in Executive Council. The date at the foot of the by-law as published in the Gazette is 2 July 1992. However, that seems unlikely to have been the date upon which it was confirmed in Executive Council, as presumably it was not presented for publication in the Gazette until that formality had been completed. 8. Be that as it may, what is important for present purposes is that as from 1 July 1992, Act No 29 of 1992 entitled "Local Government (Reform) Amendment Act 1992 came into operation. That Act repealed and re-enacted a number of provisions in the Local Government Act, including ss.668 and 669. Those two sections were replaced by provisions dealing with matters other than the passing of and confirmation of by-laws. However, a new s.671 was enacted by the amending Act, which dealt with those matters. Section 671, which is still in force, provides:
"671.(1) Where it is proposed that a council make a by-law,
the council must, at least 21 days before resolving to make the
by-law-
(a) make copies of the proposed by-law (and any document,
code, standard or rule proposed to be applied, adopted or
incorporated by the by-law) available for public inspection,
without charge and during ordinary office hours, at the
principal office of the council; and
(b) by notice in a newspaper circulating in the area of the
council-
(i) inform the public of the availability of the proposed
by-law; and
(ii) set out in general terms the by-law's nature and
effect.
(2) A by-law cannot be made under this Act unless-
(a) the by-law is made at a meeting of the council where at
least two-thirds of the members of the council are present; and
(b) the relevant resolution is supported by an absolute
majority of members of the council.
(3) A council must not make a by-law unless or until the
council has obtained a certificate, in the prescribed form,
signed by a legal practitioner certifying that, in the opinion
of the legal practitioner-
(a) the council has power to make the by-law by virtue of a
statutory power specified in the certificate; and
(b) the by-law is not in conflict with this Act.
(4) Subject to subsection (5), a by-law comes into operation
four months after the day on which it is published in the
Gazette or from such later day or days fixed in the by-law.
(5) A by-law may take effect from an earlier day specified in
the by-law if-
(a) it revokes a by-law without making any provision in
substitution for that by-law;
(b) it corrects an error or inaccuracy in a by-law;
(c) it is required for the purposes of an Act that will come
into operation on assent or less than four months after assent;
or
(d) it confers a benefit on a person (other than the council
or an authority of the council) and does not operate so as-
(i) to affect, in a manner prejudicial to any person (other
than the council or an authority of the council), the rights of
that person existing before the date of commencement of the
by-law; or
(ii) to impose a liability on any person (other than the
council or an authority of the council) in respect of anything
done or omitted to be done before the date of commencement of
the by-law." 9. The Local Government (Reform) Amendment Act 1992 also amended the Subordinate Legislation Act 1978. The amendment had the effect of rendering by-laws made under the Local Government Act subject to the provisions of Part II of the Subordinate Legislation Act. The consequence of that for present purposes is that from 1 July 1993, by force of the relevant provisions of the Subordinate Legislation Act:
(1) Every by-law must be laid before both Houses of Parliament
within 14 days after it is made (s.10(3) Subordinate Legislation
Act 1978).
(2) Every by-law "shall forthwith after it is made be
published in the Gazette in the prescribed form and manner"
(s.11). 10. Put shortly, the argument of the appellant is that, given that the by-law in question was not published in the Gazette until the Gazette of 2 July 1992, it did not come into operation until four months after that date. That consequence is said to ensue by reason of the repeal of ss.668 and 669 effected by the Amending Act, and in particular the repeal of s.669(3)(b) of the Local Government Act. The argument was that once that repeal was effective, that is, on the coming into effect of the Amending Act as from 1 July 1992, the provision governing the coming into operation of the by-law became the newly enacted s.671(4), with the result that the by-law did not come into operation until four months after the date of publication in the Gazette, that is, four months after 2 July 1992. 11. In my opinion, that argument is not sound, and is answered by a proper application of s.16(3) of the Acts Interpretation Act 1915. That subsection provides: "16.(3) Any Act or enactment will, notwithstanding its repeal, amendment or expiry, continue in force for the purposes of continuing and completing any Act, matter or thing commenced or in progress under that Act or enactment, if there is no substituted Act or enactment adapted to its continuance and completion." 12. In my opinion, ss.668 and 669 in the form in which they stood before 1 July 1992 continued in force for the purpose of "continuing and completing" the process of enactment of the by-law now in question. There were a number of stages involved in the process of enactment of the by-law. It seems likely that all of them, with the exception of the last stage, which was publication in the Gazette, were completed before 1 July 1992. It seems to me that the publication of the by-law in the Gazette on 2 July 1992 represented the completion of the process of enactment of the by-law within the meaning of s.16(3) of the Acts Interpretation Act, and had the result that the by-law took effect from the date of publication, that is, 2 July 1992, in accordance with s.669(3)(b) as it stood before its repeal. 13. In my opinion, it cannot properly be said that the new provisions which find expression in s.671(4) in force from 1 July 1993, are a "substituted Act or enactment adapted" to the continuance and completion of the process of enactment of the by-law in question. It seems to me that s.671(4) as it now stands is part of a completely new procedure which involves quite different steps in the process of enactment of a by-law. The mere fact that those steps included provision for publication in the Gazette does not mean that that step is a provision which is "adapted" to the "continuance and completion" of the process of enactment of the by-law, when that process was commenced before the enactment of s.671 in its present form. 14. It follows that in my view, By-Law No 2 of the Town of Thebarton came into force on 2 July 1992 and was, therefore, in force on 11 July 1992 when the offences in question were committed. For these reasons, the appeal is dismissed. I will hear the parties as to costs.
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