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Report Details


Committee Name:

Delegated Legislation Committee (2001 - 2017)

House:

Joint
Report Type:Report

Title:

Powers of Entry and Powers to make Local Laws that affect Private Land under the Local Government Act 1995
Report No:7
No of Pages:77
Physical Location:Legislative Council Committee Office

Presentation Date:

05/15/2003
Inquiry Name(s):Powers of Entry


Click here to view the report
Click here to view the Government's response to the report


Executive Summary
1.For several years, the Joint Standing Committee on Delegated Legislation (“Committee”) has had concerns about local laws that were made under section 3.5(1) of the Local Government Act 1995 (“Act”), which sought to:

1.1regulate the activities of owners or occupiers of private land conducted on that land; and

1.2authorise local government employees to enter onto that land,

in certain circumstances that went beyond the matters listed in Schedules 3.1 and 3.2 of the Act.

2.The preliminary view of the Committee was that where a local government relies on section 3.5(1) of the Act for making a local law authorising a local government employee to enter private land, the local government:

2.1is restricted to the matters specified in Schedules 3.1 and 3.2; and

2.2must comply with the procedures for entering private land set out in Part 3, Division 3, Subdivision 3 of the Act.

3.Following further inquiry, the Committee became aware that the Western Australian Local Government Association (“WALGA”) had advised its members that the local law-making power in section 3.5(1) of the Act is not restricted by the matters specified in Schedules 3.1 and 3.2. Some local governments had seized upon this advice to make local laws in respect to private land and authorising entry onto private land in circumstances that the Committee considered were not contemplated by the Schedules or otherwise authorised by the Act.

4.On July 6 2001, the Committee formally resolved to report to Parliament on the power of local government employees to enter private land pursuant to the Act.

5.The Committee therefore resolved to conduct an inquiry into the scope of the local law-making powers in the Act and the power of local government employees to enter onto private land pursuant to a local law made under the Act. To assist it in this regard, the Committee obtained an opinion from Mr Malcolm McCusker QC, a Barrister at the Independent Bar.

Findings

6.The Committee has concluded that:

the local law-making power provided by section 3.5(1) of the Act is constrained by sections 3.25 and 3.27; and accordingly

where a local government relies on section 3.5(1) for making a local law in relation to entry onto private land, the local government:

a)is restricted to the matters specified in Schedules 3.1 and 3.2; and

b)must comply with the procedures for entering private land set out in Part 3, Division 3, Subdivision 3 of the Act.

any local law made under the Act inconsistent with the above is not authorised or contemplated by the Act.

Recommendations


Page 35

Recommendation 1: The Committee recommends that powers of entry conferred on local governments be expressly stated in the Local Government Act.


Page 35

Recommendation 2: The Committee recommends that these express powers be the extent of the powers of entry available to local governments to enter private land.


Page 35

Recommendation 3: The Committee recommends that any broadening of the capacity by local governments to enter private land continue to be by regulation.


Page 36

Recommendation 4: The Committee recommends that the Act be amended:

a) to expressly state that the local law-making power provided under section 3.5(1) is constrained by sections 3.25, 3.27; and Schedules 3.1 and 3.2;

b) so as to include in the list of matters contained in Schedule 3.1:

i) “the repair of all boundary fences”;

ii) “the removal of bees”; and

iii) “the limiting or stopping of nuisance lights”.


Page 36

Recommendation 5: The Committee recommends that pending any amendments to the Act that are brought about by its review, the Minister direct the Department to issue a circular to WALGA, the Western Australian division of Local Government Managers Australia, and all local governments, advising that:

a) section 3.5(1) of the Act is constrained by sections 3.25, 3.27; and Schedules 3.1 and 3.2 in relation to making local laws affecting private land;


b) the power to enter private land pursuant to a local law made under section 3.5(1) of the Act can only be used in relation to those matters authorised by sections 3.25, 3.27; Schedules 3.1 and 3.2; and the procedure in Part 3, Division 3, Subdivision 3 of the Act must be followed when exercising the power to enter;


c) any deviation from this position by a local government will result in the Committee recommending to the Parliament that the local law be disallowed under section 42(2) of the Interpretation Act 1984; and


d) local governments wanting to insert additional matters to Schedules 3.1 and 3.2 should advise the Department of this now, while the Act is undergoing a review.