Part 12Regulatory functions

Chapter 12—Regulatory functions Part 1—By-laws 246—Power to make by-laws (1) Subject to this or another Act, a council may make by-laws— (a) that are within the contemplation of this or another Act; or (b) that relate to a matter in relation to which the making of by-laws is authorised by the regulations under this or another Act. (2) Without limiting subsection (1), a council has a general power to make by‑laws for the good rule and government of the area, and for the convenience, comfort and safety of its community. (3) Subject to this or another Act, a by-law made by a council may— (a) operate subject to specified conditions; and (b) refer to or incorporate, wholly or partially and with or without modification, a code, standard or other document prepared or published by an authority or body, either as in force at the time the by-law is made or as in force from time to time; and (c) be of general or limited application, and provide for exemptions; and (d) make different provision according to the persons, things or circumstances to which it is expressed to apply; and (e) provide that the by-law, or a provision of a by-law, applies only within a part or parts of the area as the council may determine from time to time; and (f) provide that a matter or thing is to be determined, dispensed with, regulated or prohibited according to the discretion of the council, a specified person, authority or body, or a person holding a specified office; and (g) fix a minimum as well as a maximum penalty for any breach of a by-law, or a maximum penalty only, or a general maximum penalty applicable to several by-laws, provided that the maximum penalty so fixed does not exceed $1 250, and in the case of a continuing offence fix a further penalty not exceeding $50 for every day on which the offence or breach of the by-law continues; and (h) in a case of a by-law relating to the driving, parking or standing of vehicles— (i) impose, modify or restrict any evidentiary burden on a party to proceedings for an offence against the by-law, or provide for other matters in respect of evidence or the proof of any matter; and (ii) fix entrance fees or parking fees; and (iii) provide that the owner and the driver of a vehicle driven, parked or standing in contravention of the by-law are each guilty of an offence and liable to the relevant penalty. (4) If a code, standard or other document is adopted under subsection (3)(b) as it is in force from time to time, an alteration to the code, standard or other document will not take effect for the purposes of the by‑law before a day on which the council gives public notice of that alteration. (4a) If a council makes a determination under subsection (3)(e), the council must give public notice of the determination. (5) Expiation fees may be fixed for alleged offences against by-laws by— (a) by-laws; or (b) the council, but an expiation fee fixed by the council cannot exceed 25 per cent of the maximum fine for the offence to which it relates. (6) In any proceedings for an offence against a by-law under subsection (3)(h)— (a) an allegation in a complaint that a person named in the complaint was the owner of a specified vehicle on a specified day will be taken to be proved in the absence of proof to the contrary; and (b) if it is proved that a vehicle was driven, parked or left standing in contravention of the by-law it will be presumed, in the absence of evidence to the contrary, that the vehicle was so driven, parked or left standing by the owner of the vehicle. (7) Despite a preceding subsection, the owner and driver of a vehicle cannot both be convicted of an offence arising out of the same circumstances and so conviction of the owner exonerates the driver and conversely conviction of the driver exonerates the owner. 247—Principles applying to by-laws A by-law made by a council must— (a) be consistent with the objectives of the provision that authorises the by-law and accord with the provisions and general intent of the enabling Act; and (b) adopt a means of achieving those objectives that does not— (i) unreasonably burden the community; or (ii) make unusual or unexpected use of the power conferred by the enabling Act (having regard to the general intent of the Act); and (c) avoid restricting competition to any significant degree unless the council is satisfied that there is evidence that the benefits of the restriction to the community outweigh the costs of the restriction, and that the objectives of the by-law can only be reasonably achieved by the restriction; and (d) avoid unreasonable duplication or overlap with other statutory rules or legislation; and (e) avoid regulating a matter so as to contradict an express policy of the State that provides for the deregulation of the matter; and (f) avoid breaching principles of justice and fairness; and (g) be expressed plainly and in gender neutral language, but a by-law cannot be challenged on the ground that it is inconsistent with one or more of these principles. 248—Rules relating to by-laws (1) A by-law made by a council must not— (a) exceed the power conferred by the Act under which the by-law purports to be made; or (b) be inconsistent with this or another Act, or with the general law of the State; or (c) without clear and express authority in this or another Act— (i) have retrospective effect; or (ii) impose a tax; or (iii) purport to shift the onus of proof to a person accused of an offence; or (iv) provide for the further delegation of powers delegated under an Act; or (d) unreasonably interfere with rights established by law; or (e) unreasonably make rights dependent on administrative and not judicial decisions. (2) If a by-law is inconsistent with a trust that applies to real or personal property held by the council, the by-law does not, to the extent of the inconsistency, apply in relation to that property. (3) This section does not affect the validity of a by-law made before the commencement of this section. 249—Passing by-laws (1) If it is proposed that a council make a by‑law, the council must, at least 21 days before resolving to make the by‑law, ensure that copies of the proposed by‑law (and any code, standard or other document proposed to be applied or incorporated by the by‑law) are made available to the public in accordance with section 132(1). (2) A council must give reasonable consideration to a written or other acceptable submission made to the council on a proposed by-law. (3) A by-law cannot be made 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. (4) 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. (5) Subject to subsection (6), a by-law comes into operation four months after the day on which it is published in the Gazette or from a later day or days fixed in the by-law. (6) A by-law may take effect from an earlier day specified in the by-law if— (a) it revokes a by-law without making provision in substitution for that by-law; or (b) it corrects an error or inaccuracy in a by-law; or (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 a 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 a 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; or (e) the council has been formed by the amalgamation of two or more councils and the by-law (or a by-law in substantially the same terms) was previously in force in the area of a council that has been amalgamated. (7) A council must give public notice of the making of a by‑law under this section. (8) Section 10AA of the Legislative Instruments Act 1978 does not apply to a by-law of a council. 250—Model by-laws (1) The Governor may, by proclamation, make, alter or revoke model by-laws dealing with a subject on which a council has power under this or another Act to make a by‑law. (2) A model by-law, or an alteration to a model by-law— (a) must be published in the Gazette; and (b) must be laid before both Houses of Parliament under the Legislative Instruments Act 1978; and (c) is subject to disallowance under that Act. (3) A council may adopt a model by-law, or an alteration to a model by-law, made by the Governor under this section if— (a) the adoption occurs 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; and (c) the council adopts all of the model by-law or alteration (as the case may be). (4) A council may adopt a model by‑law or alteration at any time after the model by‑law or alteration is published in the Gazette (but if the model by‑law or alteration is disallowed under the Legislative Instruments Act 1978 after its adoption by a council, the adoption by the council is of no effect on and after the date of the disallowance). (5) The resolution adopting a model by-law or alteration must be published in the Gazette. (6) The operation of a model by-law or alteration adopted by a council under this section takes effect from a day specified in the resolution (which must not be earlier than the day of publication of the resolution in the Gazette), or, if no day is specified, from the day of publication of the resolution in the Gazette. (7) A council must give public notice of the adoption of a model by‑law or alteration under this section. (8) An alteration or revocation of a model by-law by the Governor does not affect the prior adoption of the model by-law by the council. (9) A council may, by further by-law, revoke a by-law adopted under this section. 251—Expiry of by-laws (1) A by-law made under this Act, and all subsequent by-laws altering that by-law, unless it has already expired or been revoked, expire on 1 January of the year following the year in which the seventh anniversary of the day on which the by-law was made falls. (2) For the purposes of this section, a by-law will be taken to have been made on the day on which it is published in the Gazette or, in the case of a model by-law, the day on which the notice of the resolution adopting the model by-law is published in the Gazette. 252—Register of by-laws and certified copies (1) A council must cause a separate register to be kept of all by-laws made or adopted by the council. (2) The register must include a copy of any code, standard or other document referred to or incorporated in a by-law. (5) A person is entitled, on payment of a fee fixed by the council, to a certified copy of a by-law of a council in force in its area (or a part of its area) at the particular time. (6) If a by-law only applies within a part or parts of the area of a council as the council may determine from time to time, and the council has made a determination, a certified copy of the resolution making the determination must accompany a copy of the by-law provided under subsection (5). (7) The certificate referred to in subsections (5) and (6) may be given by the principal member of the council or the chief executive officer of the council. 253—Revocation of by-law does not affect certain resolutions (a) a by-law revokes a by-law, or part of a by-law, that provides that the council may pass a resolution for a particular purpose; and (b) the revoking by-law contains provisions substantially corresponding to those of the revoked by-law, (c) the revocation does not affect the operation of a resolution in force immediately before the revocation to the extent that the resolution is not inconsistent with the revoking by-law; and (d) the resolution continues to have effect as if passed under the revoking by-law. Part 2—Orders Division 1—Power to make orders 254—Power to make orders (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? 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) (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) (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) (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) · 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. 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. Division 2—Associated matters 255—Procedures to be followed (1) A council must, before taking action to make an order under this Part (but subject to this section), give the person to whom it is proposed that the order be directed a notice in writing— (a) stating the proposed action, including the terms of the proposed order and the period within which compliance with the order will be required; and (b) stating the reasons for the proposed action; and (c) inviting the person to show, within a specified time (of a reasonable period), why the proposed action should not be taken (by making representations to the council or a person nominated to act on behalf of the council). (2) If a notice is directed to a person who is not the owner of the relevant land, the council must take reasonable steps to serve a copy of the notice on the owner. (3) The council may, after considering representations made within the time specified under subsection (1)— (a) make an order in accordance with the terms of the original proposal; or (b) make an order with modifications from the terms of the original proposal; or (c) determine not to proceed with an order. (4) The council is not required to give further notice before it makes an order with modifications under subsection (3)(b). (5) A council may— (a) include two or more orders in the same instrument; (b) direct two or more persons to do something specified in the order jointly. (6) An order must— (a) subject to this section, specify a reasonable period within which compliance with the order is required; and (b) state the reasons for the order. (7) An order must be served on the person to whom it is addressed.1 (8) If an order is directed to a person who is not the owner of the relevant land, the council must take reasonable steps to serve a copy of the order on the owner. (9) If land is owned or occupied by more than one person— (a) an order in respect of the land is not invalid merely because it is not directed to all of those owners or occupiers; and (b) an owner or occupier who complies with an order may recover a fair contribution from other owners or occupiers. (10) Nothing in this section affects the right of a person from recovering from another all or any of the expenses incurred by the person in complying with an order. (11) A council may, at the request, or with the agreement, of the person to whom an order is directed, vary an order or may, on its own initiative, revoke an order if satisfied that it is appropriate to do so. (12) If a council, in the circumstances of a particular case, considers— (a) that an activity constitutes, or is likely to constitute, a threat to life or an immediate threat to public health or public safety; or (b) that an emergency situation otherwise exists, the council may— (c) proceed immediately to make an order under this section without giving notice under subsection (1); and (d) require immediate compliance with an order despite subsection (6)(a). (13) A council is not required to comply with any other procedure, or to hear from any other person, except as provided by this section before it makes an order under this section. 1 See Chapter 14 Part 2 about various forms of service. 256—Rights of review (1) An order must include a statement setting out the rights of a person to seek a review of 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, seek a review of the order by SACAT under section 34 of the South Australian Civil and Administrative Tribunal Act 2013. 257—Action on non-compliance (1) If the requirements of an 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, the council may (subject to the outcome of any review) take the action required by the order. (2) Action to be taken by a council under subsection (1) may be taken on the council's behalf by an employee of the council or by another person authorised by the council for the purpose. (3) The reasonable costs and expenses incurred by a council in taking action under this section may be recovered by the council as a debt from the person who failed to comply with the requirements of the order. (4) The regulations may limit the amount of costs and expenses recoverable under subsection (3) in a case involving a European wasp's nest. (5) If an amount is recoverable from a person by a council under this section, the council may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid and, if the amount is not paid by the person within that period— (a) the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) if the person is the owner of the land to which the order relates—the council may, in accordance with Schedule 6, impose a charge over the land for the unpaid amount, together with interest. (6) No civil liability attaches to a council, an employee of a council, or a person acting under the authority of a council, for anything done by the council, employee, or person under this section. European wasp's nest means the nest of an insect of the species Vespula germanica. 258—Non-compliance with an order an offence A person who contravenes or fails to comply with an order under this Part is guilty of an offence. Maximum penalty: $2 500. Division 3—Policies 259—Councils to develop policies (1) A council must take reasonable steps to prepare and adopt policies concerning the operation of this Part. (2) A council must— (a) prepare a draft of a policy; and (3) A council must consider any submission made to the council on a proposed policy during the public consultation under subsection (2). (4) A council may amend a policy at any time. (5) However, a council must, before adopting an amendment to a policy, take the steps specified by subsections (2) and (3) (as if the amendment were a new policy), unless the council determines that the amendment is of only minor significance. (8) A council must, in considering whether to make an order under this Part, deal with the particular case on its merits but must also take into account any relevant policy under this Division. Part 3—Authorised persons 260—Appointment of authorised persons (1) A council may, by instrument in writing, appoint a person (other than a member of the council) as an authorised person. (2) An appointment may be subject to conditions or limitations specified in the instrument of appointment. (3) The council must issue to an authorised person an identity card— (a) containing a photograph of the authorised person; and (b) identifying any conditions or limitations imposed under subsection (2). (4) An authorised person must, on demand by a person affected by an exercise or proposed exercise of a power under this Act, produce his or her identity card for inspection by that person. (5) A council may, at any time, revoke an appointment under this section, or vary or revoke a condition or limitation, or impose a further condition or limitation. (6) No civil liability attaches to an authorised person for an honest act or omission in the exercise, performance or discharge, or purported exercise, performance or discharge, of powers, functions or duties under this or other Acts. (7) A liability that would, but for subsection (6), attach to an authorised person attaches instead to the council. 261—Powers under this Act (1) An authorised person may— (a) after giving reasonable notice to the owner or occupier of land, enter land— (i) for a purpose related to the operation, administration or enforcement of this or another Act by the council (including to ascertain whether an order should be made or other action taken by the council under this or another Act); or (ii) to carry out any inspection that the council is authorised to undertake under this or another Act; or (iii) to carry out any work that the council is authorised to undertake under this or another Act; (b) subject to subsection (2), where necessary, break into any place for a purpose related to the administration or enforcement of this Act; (c) require a person to produce documents (which may include a written record reproducing in an understandable form information stored by computer, microfilm or other process) as reasonably required in connection with the administration or enforcement of this Act or a by-law under this Act; (d) examine, copy or take extracts from documents or information so produced or require a person to provide a copy of any such document or information; (e) carry out tests, make measurements or take photographs, films or video recordings as reasonably necessary in connection with the administration or enforcement of this Act or a by-law under this Act; (f) require a person whom the authorised person reasonably suspects to have committed, or to be committing or about to commit, any breach of this Act or a by-law under this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity; (g) require a person who the authorised person reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration or enforcement of this Act or a by-law under this Act to answer questions in relation to those matters; (h) give expiation notices to persons alleged to have committed expiable offences under this Act or a by-law under this Act; (i) give any directions reasonably required in connection with the exercise of a power conferred above or otherwise in connection with the administration or enforcement of this Act or a by-law under this Act. (2) An authorised person may only exercise the power conferred by subsection (1)(b) on the authority of a warrant issued by a magistrate unless the authorised person believes, on reasonable grounds, that the circumstances require immediate action to be taken. (3) A magistrate must not issue a warrant under subsection (2) unless satisfied, on information given on oath— (a) that there are reasonable grounds to suspect that a provision of this or another Act has been, is being, or is about to be, breached; or (b) that the warrant is otherwise reasonably required in the circumstances. (4) In the exercise of powers under this Act, an authorised person may be assisted by such persons as he or she considers necessary in the circumstances. (5) An occupier of a building must give to an authorised person or a person assisting an authorised person such assistance as is reasonably required for the effective exercise of the powers conferred by this section to be exercised. (6) Subject to subsection (7), a person who— (a) without reasonable excuse, hinders or obstructs an authorised person, or a person assisting an authorised person, in the exercise of powers under this Act; or (b) uses abusive, threatening or insulting language to an authorised person, or a person assisting an authorised person; or (c) without reasonable excuse, fails to obey a requirement or direction of an authorised person under this Act; or (d) without reasonable excuse, fails to answer, to the best of the person's knowledge, information and belief, a question put by an authorised person; or (e) falsely represents, by words or conduct, that he or she is an authorised person, (7) A person is not obliged to answer a question or to produce, or provide a copy of, a document or information as required under this section if to do so might tend to incriminate the person or make the person liable to a penalty. (8) A person is not obliged to provide information under this section that is privileged on the ground of legal professional privilege. (9) A person who assaults an authorised person, or a person assisting an authorised person in the exercise of powers under this Act, is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years. (10) An authorised person, or a person assisting an authorised person, who— (a) addresses offensive language to any other person; or (b) without lawful authority hinders or obstructs or uses or threatens to use force in relation to any other person, 262—Power of enforcement (1) If a person (the offender) engages in conduct that is a contravention of this Act or a by-law under this Act, an authorised person may order the offender— (a) if the conduct is still continuing—to stop the conduct; and (b) whether or not the conduct is still continuing—to take specified action to remedy the contravention. (2) A person must comply with an order under this section. (3) If a person does not comply with an order, the authorised person may take action reasonably required to have the order carried out. (4) However, an authorised person may not use force against an offender under this section.