Local Government: Restrictions on Councils' Road Closing Powers

Debate on the Local Government package of Bills. i.e.

Local Government Bill 1999,

Local Government (Elections) Bill 1999,

Statutes Repeal and Amendment (Local Government) Bill 1999

took place in the Legislative Council over two weeks: from 27 July to 5 August 1999. For ease of reference on the Democrats web site the debates have been separated into individual pages, each page containing an edited transcript of only one aspect of the total package.

This page covers only the move to restrict a council's road closing powers, part of the Statutes Repeal and Amendment (Local Government) Bill. For an index of other topics covered in the Local Government Bills, see the Democrats Local Government page, or the 1999 Budget Session Index

The Hon. IAN GILFILLAN: The Democrats support the second reading of this Bill. It consists mainly of, first, transitional provisions between the Local Government Act 1934 and what will be the new Local Government Act 1999 and, secondly, consequential provisions updating a series of other Acts to reflect changes in the Local Government Act. I understand that there are no substantive matters of policy addressed by the Bill. However, several measures have attracted the attention of the Local Government Association, which believes that the transitional arrangements may, in some circumstances, impose an unfair burden on councils or increase the scope for the Minister to interfere in what should be a local decision.

The LGA is not opposing any of the amendments which have been filed by the Minister. However, in a fax received by my office last Tuesday (3 August), the LGA indicated that it was seeking some amendments to the Bill, including the insertion of some new clauses. Before we move into the Committee stage, I will be seeking an indication from the Government as to its position on the Local Government Association's advice. For my part, I am already on record as supporting strongly the principle of local autonomy along with improved local democracy, public accountability and environmental sustainability. Any amendment proposed by the LGA and agreed to by the Government will certainly receive favourable Democrats consideration, at least, so long as it does not conflict with those principles.

Regarding the amendments on file from other members, I understand that all the amendments on file from the Hon. Terry Roberts are consequential on amendments to the main Bill which have been lost. So, I do not expect that they will be moved. My own amendments to clause 5 of this Bill are consequential on the proposed amendments to the Local Government (Elections) Bill. That was not successful, so I will not be proceeding with any of the amendments that I have on file.

The Hon. IAN GILFILLAN: The Leader of the Government in this place has wonderful selective listening: I hope he heard me when I asked for a response from the Government to the LGA's advice, otherwise we will just have to stall in our tracks. The Hon. Terry Cameron has on file amendments concerning retirement villages, which I will be supporting. The Hon. Nick Xenophon has an extraordinary amendment on file regarding road closures. It is a strange piece of drafting, imponderable in its effects, and one which the Democrats will have to look at very closely in the Committee stage. However, with those remarks-

The Hon. IAN GILFILLAN: Well, is that what it is about? With those remarks, I indicate that the Democrats support the Bill.

(2) Section 41A will come into operation on the day on which section 359 of the Local Government Act 1934 is repealed.

This is a commencement clause that relates, in turn, to a proposed amendment to clause 41A which, of course, I will move in due course. I understand that this proposed amendment will be a test clause for clause 41A.

At its essence, this amendment is about giving residents on both sides of a prescribed road closure a fair go. It is about ensuring that principles of natural justice and due process prevail, particularly in the context of the use of the temporary and unilateral road closure provisions of section 359 of the 1934 Act. I have confined the operation of clause 41A to roads that run into the area of another council. I have done so after consulting with my parliamentary colleague the Hon. Ian Gilfillan and after listening very closely to the views of the Local Government Association. I wait with bated breath to hear of the Hon. Ian Gilfillan's attitude. The scope of the clause 41A amendment has been narrowed to apply to those situations where, in effect, the amenities of residents as motorists, passengers and cyclists in an affected area are impacted on in a most obvious and direct manner where a road runs into the area of another council rather than circumstances where it runs, for instance, between the boundaries of two councils.

The Hon. DIANA LAIDLAW: The Government vigorously opposes this amendment. As the honourable member has said, the amendment is part of a much more substantive amendment to clause 41A. That new clause as proposed by the Hon. Mr Xenophon seeks to override previous lawful decisions made by councils under section 359 of the 1934 Local Government Act to restrict traffic in their areas.

The Hon. IAN GILFILLAN: The Democrats support the amendment. It is important that the amendment be looked at as a legislative measure, rather than an emotional response to what is perceived as perhaps, in an isolated sense, a matter of social injustice. The legislative structure that we currently have is that this cannot happen again. There cannot be unilateral closing of roads where it affects another area because there are conditions in the Road Traffic Act which prevent it happening. So this measure is really to patch up what may have been, in today's wisdom, an unbalanced, unfair assessment of what is acceptable as a road closure.

I was able to have conversations with the Hon. Nick Xenophon to make sure that, as far as we were concerned, it would not open up the local government community to a host of road closures, which his earlier draft would have done, and the latest count is 41 and rising. This does substantially restrict it numerically. I do not have a problem with this degree of retrospectivity, and honourable members will know that we successfully passed through this Chamber the Commercial Tenancies Bill-

The Hon. IAN GILFILLAN: That does not matter. We had a majority. This is democracy; it is the majority, and this Chamber passed a Bill which recognised that there should be certain conditions applying to tenancies that had been agreed which should be available to people who had had tenancy agreements entered into previously. The same principle applies here. And it does not matter where the road which complies with this crops up. It is now, if this amendment is passed, available to be revisited if one of the councils, in which area this closed road has direct route, objects. If there is no objection no burden will be put on either party and everything proceeds as happily as it did before. I know that in some circumstances there has been a continuing objection to a closure by a council which has been affected by the road closure and, in those circumstances, this measure will give them a chance to revisit the issue and have the road closure judged under the terms that this Parliament has accepted should apply to all future road closures. It is on that basis, and on that basis alone, that I believe that this amendment justifies support.

The Hon. SANDRA KANCK: I will be supporting this amendment and doing so strongly. Yesterday afternoon, at 2.25 I have written here on this missive that has come from Michael Abbott QC, a document was distributed in this Chamber by the Messengers. I must admit to a certain degree of disquiet about the fact that a document from Michael Abbott QC was distributed in the Chamber in this form. I wonder, for instance, why it was not distributed in our boxes, where things are normally placed, because I do understand, for instance, that the Public Service Association can no longer have the PSA Review distributed here in Parliament because it does not individually envelope them and address them to members, and yet we get something here from one of Adelaide's upper class, Michael Abbott QC, and it appears here in this Chamber and is distributed, I find that very peculiar. It seems to me as though it is one law for the rich and one law for the poor.

I declare my interest at the outset. Unlike Michael Abbott QC, who wrote two and a half pages and then, at the end, turns around and says, `Note: Michael Abbott QC lives in North Adelaide and has an interest in Barton Road, North Adelaide, continuing to be closed', I declare my interest as someone who lives in Athelstone and can no longer use the Silkes Road ford. My husband and I purchased our house there 18 years ago, and we knew that that ford was there and that it would shorten some of our travel distances by being able to cross that ford, except on those occasions when the river was running high and we would not be able to do that. We looked at houses on Reids Road and Silkes Road and we saw that it was a main road and decided that it would not be a good place to buy. Every other person who has purchased a house on Silkes Road or Reids Road over the past 50 years has had exactly that same knowledge. Yet, Michael Abbott's letter to us all says that this amendment `will drastically affect many South Australians who have purchased their houses on the basis that what they saw is what they got'.

Well, I purchased a house, and I saw that within a short distance there was a ford and that I would have access to it. But what I saw is not what I got. Mr Abbott states:

The amendment has the capacity to devalue the houses of South Australians without their having any say in it at all.

The closure of Barton Terrace probably increased the value of those houses-without any say in it at all, either. He is using his arguments in a very selective way.

Mr Abbott argues that the amendment will be `destructive of existing rights of councils and homeowners'. In the Campbelltown Council that is exactly what happened when the Silkes Road ford was closed. He says that it `will pit council against council'. Yes, that happened, and it did not require an amendment; all it took was the action of the Tea Tree Gully in deciding that it knew better than the people on the other side of the river. Michael Abbott's letter states:

(d) to a large extent being introduced to promote the special interests of its supporters.

I guess I am one of those supporters with special interests, so perhaps he is correct. He goes on to state:

This proposed amendment gives councils the opportunity, by doing nothing, to undo agreements reached many years ago with other councils when those other councils acted in good faith and in the belief that an agreement was an agreement.

The closure of the Silkes Road ford was not done by agreement between the Tea Tree Gully Council and the Campbelltown Council; nor was the closure of Barton Road done by an agreement with, I think, the Woodville Council or the Hindmarsh Council-

The Hon. SANDRA KANCK: -with the Hindmarsh Council and the Adelaide City Council. It was done on both occasions as a unilateral action. The Hon. Diana Laidlaw claims that the closures that have occurred have been lawful. In the case of the Campbelltown Council she validated that argument by saying that Iris Stevens reported on that and upheld the action. However, I will tell members what that action was: it was to put up barricades across the ford and to bring in earthmoving equipment to place mounds of dirt there. I would hardly call that lawful. It is very easy to say after the event when it has been closed that there is not much you can do about it. That may be the case, but there was nothing lawful about that. I think it was more a case of might is right.

The Minister, in arguing for the closures that have occurred, said that some of them have been in force for quite some time. I wonder what length of time the Silkes Road ford and Barton Road were open. I suspect that they were open for much longer times: three times, maybe 10 times longer, than the time they have currently been closed.

In his contribution the Hon. Trevor Crothers referred to the economics of the matter. I will introduce another issue as to the economics of the matter. Since the Silkes Road ford was closed, because that has added another 10 minutes to a round trip for me to go to Tea Tree Plaza, I no longer go to Tea Tree Plaza. I do not now how many other people who live in the downtown Campbelltown Council area- because obviously we are not as good as the people in Tea Tree Gully Council-have made the same decision not to go to Tea Tree Plaza to shop, but I suspect that I am not the only one.

I have long held objections to roads being closed because, in almost all cases that I have experienced, it seems to me that the residents of one suburb, who regard themselves as being of a higher socioeconomic class than the neighbouring one, close the road because they think that they have some God given right. If you look at the suburbs that have been closed off, with the Silkes Road-

The Hon. SANDRA KANCK: Yes, it is ugly actually. Those of us who grew up in working-class suburbs and do not have degrees sometimes do feel a bit miffed at these sorts of things. Look at the Silkes Road ford as an example: on one side, the Tea Tree Gully Council side, you have the green and leafy suburb of Dernancourt; on the other side you have Paradise which had many Italian market gardeners who clearly were not of the same socioeconomic status.

Look at Barton Road, where you have the people of North Adelaide denying access to the people of Bowden, Brompton and Woodville. Look at Unley, which again is a suburb that has people of reasonably high socioeconomic standing, and they, too, decided that they would close roads and prevent people from using them. If the Minister knows of examples where the council that has closed the roads has not been of a higher socioeconomic standing than the one that it has closed it to, I would be interested to hear about it.

The issue of retrospectivity is something that is always of concern to the Democrats. But, when there is an injustice, as has occurred in these examples, I think that there are good arguments for retrospective action to right the injustice. I also note the comments of the Hon. Julian Stefani.

The Hon. T.G. ROBERTS: The Labor Party supports the Hon. Nick Xenophon's amendment.

41A (1) The closure of a prescribed road to vehicles generally or vehicles of a particular class in force under section 359 of the 1934 Act immediately before the repeal of that section ceases to have effect (unless already brought to an end) six months after the repeal of that section (and the relevant council must, on the closure of a prescribed road ceasing to have effect pursuant to this subsection, immediately remove any traffic control device previously installed by the council to give effect to the closure).

(2) However, subsection (1) does not apply if the closure of the road is, before the expiration of the six month period referred to in that subsection, confirmed by action taken by the relevant council under another Act.

(d) that runs up to another road running along or containing the boundary between two councils.

The Hon. DIANA LAIDLAW: It is unorthodox not to have the honourable member here to move his amendment, particularly on such a contentious issue.

The Hon. DIANA LAIDLAW: I accept that, but in terms of the protocols of this place it is unorthodox. Given that the earlier debate was extensive and noting the outcome of the division and the fact that the Chairman has accepted the amendment, I accept the position. However, I indicate that the Government remains vigorously opposed to this retrospective move.

The Hon. IAN GILFILLAN: As both the Minister and I have agreed, and as I am sure every other member in the Chamber would agree, the Hon. Nick Xenophon pointed out that the first of his amendments carried the extensive debate on the total issue. When that was completed, there was a test vote, and I do not think there is any problem in our dealing with this forthwith.

	Extract from Hansard Legislative Council 5 August 1999

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 1999 Budget Session Index Browse by Subject About the SA Parliament Hansard on line