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.