PART
3: THE RULE OF LAW
“The acceptance of the rule of law as a
constitutional principle requires that a citizen, before committing himself to
any course of action, should be able to know in advance what are
the legal consequences that will flow from it.” Lord
Reid
DISCRETIONAL and/or RETROSPECTIVE LAW VOIDS THAT RIGHT.
For at least 75 years, every Australian Governor General, Prime Minister, Foreign Minister, Ambassador to the United Nations and the High Court has expressed the principle that Australia is governed by THE RULE OF LAW.
The Commonwealth Solicitor-General says:
Our department has primary
responsibility for supporting the Australian Government in protecting and
promoting the rule of law.
The rule of law underpins the way
Australian society is governed.
Everyone—including citizens and
the government—is bound by and entitled to the benefit of laws.
We uphold the rule of law through our daily
work to ensure:
We support the Australian
Government in being accountable for actions, making rational decisions and
protecting human rights.
We advance the rule of law
internationally by actively promoting adherence to the global rules-based
system and helping to build effective governance and stability in our
region."
Source:
https://www.ag.gov.au/About/Pages/Ruleoflaw.aspx
The relevance of the THE RULE OF LAW is demonstrated by application of the following principles in practice.
·
The separation of powers between
the legislature, the executive and the judiciary.
·
The law is made by
representatives of the people in an open and transparent way.
·
The law
and its administration is subject to open and free criticism
by the people, who may assemble without fear.
·
The law is applied equally and
fairly, so that no one is above the law.
·
The law is capable of being known
to everyone, so that everyone can comply.
·
No one is subject to any action
by any government agency other than in accordance with the law and the model
litigant rules
·
No one is subject to any torture.
·
The judicial system is
independent, impartial, open and transparent and provides a fair and prompt
trial.
·
All people are presumed to be
innocent until proven otherwise and are entitled to remain silent and are not
required to incriminate themselves.
·
No one can be prosecuted, civilly
or criminally, for any offence not known to the law when committed.
·
No one is subject adversely to a
retrospective change of the law.
Source: http://www.ruleoflaw.org.au/
In 1996, the PARLIAMENT OF WESTERN AUSTRALIA, JOINT STANDING COMMITTEE ON DELEGATED LEGISLATION declared:
"The system of
government in Western Australia is that of a parliamentary democracy based on
the rule of law."
Note:
This declaration coincided with the introduction of the Local Government Act
1995.
THE HIGH COURT OF AUSTRALIA
says:
"The
Australian Constitution limits the power of parliaments to impose burdens on
freedom of communication on government and political matters.
No Australian
parliament can validly enact a law which effectively burdens freedom of
communication about those matters - unless the law is reasonably appropriate
and adapted to serve a legitimate end in a manner compatible with the
maintenance of the constitutionally prescribed system of government in
Australia.
Freedom of speech is a common law freedom. It embraces
freedom of communication concerning government and political matters. The
common law has always attached a high value to the freedom and particularly in
relation to the expression of concerns about government or political matters[114].
Lord Coleridge CJ in 1891 described what he called the right of free speech as "one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done". (end quote)
Source: High Court of` Australia: Monis v The Queen [2013] HCA 4 (27 February
2013)
A fundamental and vital principle in a democratic society operating under The Rule of Law is a right for any citizen to ask questions of his or her government about their policies, practices, procedures, plans, decisions, actions, errors, omissions, motives and performance - that is, to ask who, what, how, when, where and why.
That principle is expressed as a RIGHT by the Western Australia Criminal Code Part VII
Offences against public order Chapter VII : Sedition
S45. Acts excepted from
s. 44
It is lawful for any person —
(a) To endeavour
in good faith to show that the Sovereign has been mistaken in any of Her counsels; or
(b) To
point out in good faith errors or defects in the Government or Constitution of
the United Kingdom, or of the Commonwealth of Australia,
or of Western Australia as by law established, or in legislation, or in the
administration of justice, with a view to the reformation
of such errors or defects; or
(c) To excite in good faith Her Majesty’s subjects
to attempt to procure by lawful means the alteration of any matter in the State
as by law established; or
(d) To point out in good faith in order to their
removal any matters which are producing or have a tendency to produce feelings
of ill-will and enmity between different classes of Her Majesty’s subjects.
5. No civil action for lawful acts; saving
When, by the Code, any act is
declared to be lawful, no action can be brought in respect thereof.
Furthermore, S75 the Western Australia Criminal Code Part VII, Chapter X — Offences against political liberty prescribes:
75. Interfering with political liberty
Any person who by violence, or by
threats or intimidation of any kind, hinders or interferes with the free
exercise of any political right by another person, is guilty of a crime, and is
liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for
12 months and a fine
of $12 000.
Note the term "intimidation of any kind"
Surely being summarily banned to prevent political
enquiry and critique constitutes "intimidation" ?
The Western Australia Department of Local Government
thinks it does not.
"The
effective limitation of power is the most important problem of social order.
Government is indispensable for the formulation of such an order only to protect
against coercion and violence from others. But as soon as, to achieve this,
Government successfully claims the monopoly of coercion and violence,
it becomes the chief threat to individual freedom."
Law, Legislation and Liberty (Vol 1 (1973), 128),
Friedrich Hayek
Source: http://www.safecom.org.au/burnside6.htm
"The Right Approach?" (1980) 96 Law Quarterly Review 12, at p 14, cited by
Lord Edmund-Davies in Morris v. Beardmore, at p 461.
"If the courts of common law do not uphold the rights of
individuals by granting effective remedies, they invite anarchy, for nothing
breeds social disorder as quickly as the sense of injustice which is apt to be
generated by the unlawful invasion of a person's rights, particularly when the
invader is a government official. The appellant is entitled to have his right
of property vindicated by a substantial award of damages".
Source: High Court of Australia Plenty v Dillon (1991) 171 CLR 635 F.C. 91/004
Note also this same judgement determined: "The general policy of the law is against
government officials having rights of entry on private property without the
permission of the occupier, and nothing concerned with the service of a summons
gives any ground for creating a new exception to the general rule that entry on
property without the express or implied consent of the occupier is a
trespass."
The
validity of this ban and censorship by the City of Armadale Local Government
may be paraphrased by an experience 200 years ago under Governor William Bligh, fourth
Governor of New South Wales.
"To any self-respecting Englishman, the kind of
untrammelled executive power that Bligh exercised was an abomination. At the very
core of the national polity was the bundle of procedural and substantive
principles known as the rule of law, which required executive authority to be based on, and
subject to, pre-existing rules. Government by whim or caprice in the exercise of an
absolute discretion, was tyranny, typical of Continental nations and
an anathema to the English."
History
records that "when
one occupant of a leasehold residence in the environs of Government House
objected to Bligh’s order to remove it, asserting that he could not be forced
to do so by the laws of England, Bligh allegedly exploded:
“Damn your laws of
England! Don’t talk to me of your laws of England.
I will make laws for
this colony, and every wretch of you, son of a bitch, shall be governed by
them.
Or there (pointing
over to the gaol) is your habitation!”
Extract
from Chief Justice of NSW's Australia Day
address on the occasion of the 200th anniversary of the 1808 Rum Rebellion,
January 22, 2008.
Source:
http://www.theaustralian.com.au/archive/news/rum-rebellion-speech/story-e6frg6o6-1111115374564
The City of Armadale approach:-
Notwithstanding The Parliament of Western Australia Joint
Standing Committee on Delegated Legislation has specifically prohibited policies being enshrined in or as local
laws, together with the Local Government (Rules of Conduct) Regulations 2007,
the City of Armadale Local Government nonetheless continues to codify its
Public Question Time Policy in its Local Law Standing Orders 2000 and in its referenced
separate Public Question Time
Policy EM6.
Despite extensive research
by the City over many years into the proper construction of local laws – which
ultimately produced City of Armadale
Local Law Standing Orders 2000 (as amended 2016) – those Standing
Orders state at SO 3.3 Public Question
Time: "The procedure for Public Question Time is dealt with in the
Act".
Noting City of Armadale Local Law Standing Orders 2000 do not define critical terms used, its "SO 1.3 Interpretation"
prescribes:
(2) Unless otherwise defined herein the terms and
expressions used in the Standing Orders are to have the meaning given to them
in the Act and Local Government (Administration) Regulations 1996.
Note there
is no mention in City of Armadale
Local Law Standing Orders 2000 of the Local Government (Rules of Conduct) Regulations
2007, that also refer to application of Local Laws.
The term "procedure" is not defined.
However in the case of
Elector Meetings, Standing orders prescribe:
18.1
Procedure for Electors’ Meetings
In exercising his or her discretion to
determine the procedure to be followed at an electors’ meeting, the presiding
member is to have regard to these Standing Orders
The problem is the phrase "is to have regard to"
Does "is to have" mean "may" or "shall" ?
What does "regard to" mean?
Given Local Law Standing Orders is
LAW, does this mean the person presiding may decide if the law is the law or is
not the law -
i.e. is granted discretional powers in law?
Given SO 1.3 (2) above, does this
mean the person presiding may choose to interpret critical terms differently to
those used in the Act and Regulations ?
But the Local Government
Act 1995 prescribes at Section 5.24
Question time for public:
"(2) Procedures and the minimum time to be
allocated for the asking of and responding to questions raised by members of
the public at council or committee meetings are to be in accordance with
regulations".
The relevant
Regulations – Local Government (Administration) Regulations 1996 -
prescribe:
Procedures for question time for the
public s.
5.24 (2)
7.(1)Procedures for the asking of and responding to questions raised by
members of the public at a meeting referred to in regulation 6 (1) are to
be determined
(a) by the person
presiding at the meeting; or
(b) in the case where the majority of
members of the council or committee present at the meeting disagree with the
person presiding, by the majority of those members, having regard to the
requirements of subregulations (2) and (3).
(3)Each member of the public who wishes to ask a question at a meeting
referred to in regulation 6 (1) is to be given an equal and fair
opportunity to ask the question and receive a response.
Of course Council knew this
when it approved Standing Orders as a local law.
Not only did it know this
when it gazetted Local Law Standing Orders 2000 in August 2016 to reflect the above, but it still went
ahead and approved City of Armadale
Policy EM6 and Management
Practice EM6 in its meeting
of 24 October 2016.
So much for the RULE of LAW !!
Recommendation CS83/10/16 - Council
Policy Review - Public Question Time
MOVED Cr M Geary
That Council:
1.
Pursuant to section 2.7(2)(b) of the Local
Government Act 1995 adopt Policy EM 6 Public Question Time as amended and presented
as an Attachment to this Report;
2.
Notes the attached associated Management Practice.
MOTION not opposed, DECLARED CARRIED (11/0)
So what do the Regulations
say?
The Local Government (Administration) Regulations 1996 prescribe:
Procedures for question time for the
public - s. 5.24 (2)
7.(1)Procedures
for the asking of and responding to questions raised by members of the public
at a meeting referred to in regulation 6 (1) are to be determined -
(a) by the person presiding at the
meeting; or
(b) in the case where the majority of
members of the council or committee present at the meeting disagree with the
person presiding, by the majority of those members, having regard to the requirements
of subregulations (2) and (3).
(2)The time allocated to the asking of and responding to questions raised
by members of the public at a meeting referred to in regulation 6 (1) is
to precede the discussion of any matter that requires a decision to be made by
the council or the committee, as the case may be.
(3)Each member of the public who wishes to ask a question at a meeting
referred to in regulation 6 (1) is to be given an equal and fair
opportunity to ask the question and receive a response.
(4)Nothing in subregulation (3) requires -
(a) a council to
answer a question that does not relate to a matter affecting the local
government;
(b) a council at
a special meeting to answer a question that does not relate to the purpose of
the meeting; or
(c) a committee
to answer a question that does not relate to a function of the committee.
So instead of stating in
Local Law Standing Orders that the procedure for Public Question Time is to be
determined by the person presiding they have used the chosen wording.
That might seem
inconsequential
BUT
City of Armadale Policy
EM6 prescribes:
"to assist and guide the
presiding member in conducting public question time in an orderly manner,
procedures have been prepared as detailed within the Management Practice"
(EM6).
This statement clearly assumes the
person presiding is incapable of determining how to run a meeting without
external guidance.
First question is: What
does "assist and guide" mean ?
Obviously the answer lies
in Management Practice EM6
So what does Management
Practice EM6 tell us ?
EM6 presents a set of
"Guiding Principles" for both the Public and the "Presiding
Member" (i.e. "Person Presiding") for his or her "assistance and
guidance".
But did not the Regulations
declare the procedures are to be determined by the Person Presiding
?
Well yes they did but
obviously the Council and Executive think the Person Presiding
is not capable of that so they have offered a friendly helping hand.
Note that when Standing
Orders are "suspended" they have no effect on the above because, in
any event, the power and authority for the Person Presiding
to determine procedures is granted
directly by the Act and Regulations.
So what we have is a
complex set of gobbledegook procedures and rules that are design to complicate, obfuscate and confuse.
BUT
Just when you thought you
understood all this gobbledegook, we find that in the
case of Elector Meetings – despite the Regulations again declaring:
Procedures at electors'
meetings - s. 5.31
18.Subject to regulations 15 and 17, the procedure to be
followed at a general or special meeting of electors is to be determined by the
person presiding at the meeting.;
City of Armadale Local Law Standing Orders prescribe:
SO 18.1 Procedure for Electors' Meetings
In
exercising his or her discretion to determine the procedure to be followed at
an electors' meeting, the presiding member is to have regard to these Standing
Orders"
Now as it happens, the phrase "is to have regard
to" is a mandatory
direction.
It is used in place of the word
"shall", which we are told by the Interpretation Act 1984 that:
(1) Where
in a written law the word may
is used in conferring a power, such word shall be interpreted to imply that the
power so conferred may be exercised or not, at discretion.
(2) Where
in a written law the word shall
is used in conferring a function, such word shall be interpreted to mean that
the function so conferred must be performed.
Thus in SO 18.1 we have two
contradictory directives – one conferring discretion and the other prohibiting
discretion.
So again we find manipulation of
language in an attempt to bypass protocols set down by the Parliament.
The correct term to be used in SO
18.1 is "may". But the "power" itself has already
been granted by the Act and Regulations.
So perhaps a better term is
"the presiding member is requested
to have regard ……"
In any event SO 18.1 refers to "these
standing orders".
Hence SO 3.3: Procedures for Public
Question Time may be applied to Elector Meetings IF the person presiding so
chooses.
BUT
Just when all has become clear,
the case described by The Local Government (Administration)
Regulations 1996: Reg 7.1 (b) may eventuate.
Procedures for question time for the
public - s. 5.24 (2)
7.(1)Procedures
for the asking of and responding to questions raised by members of the public
at a meeting referred to in regulation 6 (1) are to be
determined -
(b) in the case where the majority of
members of the council or committee present at the meeting disagree with the
person presiding, by the majority of those members, having regard to the
requirements of subregulations (2) and (3).
So to avoid any unpleasantness
and to demonstrate the unity of Council or Committees, Council has set out a strategy
before the event to guide the person presiding so he or she will not disagree
with the will of Council or Committee.
In the latter case that is tricky
because each committee includes members who are employee executives. They are
not likely to put their hand up to disagree, especially if it is the Mayor or
Shire President who is presiding.
Nonetheless a cosy arrangement
has been established to prevent public exposure of difference or disagreement,
the effect of which is to bind the public no matter which option is chosen for
any particular meeting.
Despite Management
Practice EM6 permitting
2. Persons
may, prior to asking their question, provide a short
preamble so as to provide a context to their question.
there have been recent attempts within Council to ban this option.
In any event Management
Practice EM6 prescribes questioners are limited to ONE minute
per question, including any preamble and response.
only
two (2) questions per person will initially be
considered with a limit of two (2) minutes per person noting that sub-parts of
questions are counted as a separate question.
Note the
use of the term "WILL". That is a mandatory non-discretional
instruction to the person presiding and is therefore a breach of the
regulations.
Now if all of that was not enough to totally confuse
you, we return to The Local Government
(Administration) Regulations 1996
which prescribe at Regulation 7 (3) -
(3)Each member of the public who wishes to ask a question at a meeting
referred to in regulation 6 (1) is to be given an equal and fair opportunity to ask the
question and receive a response.
Nothing in EM6 infers "equal and fair opportunity". In fact the BAN denies "equal and fair opportunity".
Management Practice EM6 prescribes:
3. To give each member of the public
who wishes to ask a question an equal and fair opportunity to ask their
question and receive a response within the allotted 15 minutes, only two (2)
questions per person will
initially be considered with a limit of two (2) minutes per person, noting that
sub-parts of questions are counted as a separate question. If after having
allowed each person (2) questions
there is time remaining, the presiding person will allow further questions,
again in limits of two per person.
But EM6 also requires:
8. Both
questions and preamble to a question, are to be kept succinct.
So Council considers that a quota of two questions
maximum, each being of ONE minute duration, including preamble and response,
per round of questioners provides an equal and fair opportunity.
With a limit of
ONE minute per question, including
preamble and response, it is essential for the preamble and question to be succinct – otherwise all is lost.
If we divide the statutory Public Question Time by
two minute segments we have 7 segments – i.e seven sets of two questions.
Hence if the two minute quota is adhered to then
seven persons maximum may put their questions – subject of course to the
censorship clauses set out at EM6. Consideration and deliberation on
acceptability by the Person Presiding will obviously
consume precious time, further detracting from Public Question Time.
In relation to censorship of questions, the Local Government (Administration)
Regulations 1996 prescribe at Regulation
7 (4) -
(4)Nothing in subregulation (3) requires -
(a) a council to
answer a question that does not relate to a matter affecting the local
government;
(b) a council at
a special meeting to answer a question that does not relate to the purpose of
the meeting; or
(c) a committee
to answer a question that does not relate to a function of the committee.
What this also means is
that a Council IS required to answer any questions that:
(a) does relate to a matter affecting the local government
(b) does relate to the purpose of the meeting
(c) does relate to a function of the committee
Hence a big chunk of Policy
EM6 and Management Practice EM6 is unlawful.
Note the difference between
"matters" and "procedures" in the Local
Government (Administration) Regulations 1996.
Parliament knows
the difference – and that difference means also
means the BAN is unlawful.
The INTENT of the
Regulations is clear but the interpretation and implementation has been modified
to suit the purpose of a particular local government.
If the Chief Justice of
N.S.W. considered untrammeled executive power and discretional law is
"tyranny", then the City of Armadale Local Government is tyrannical.
It remains a mystery why some
ordinary citizens morph into deified tyrants when they wear the mantle of
“Councillor”.
It also remains a mystery
as to how Councillors endowed with such powers can legislate
laws without a fundamental understanding of the Rule of Law, upon which they rely
for their primary power.
See Commonwealth Attorney General: "Guide to Framing Commonwealth
Offences" - Chapter 7 - "Coercive Powers Generally"
The City of Armadale Local
Government has set aside centuries of evolution in law and replaced it with its
own version of democracy.
Moreover, the WA Dept of
Local Government and Communities declares on its website:
“The Local Government Act 1995 (the Act) enables
Western Australian local governments to make local laws considered necessary
for the good government of their districts.”
"Laws can only be made when authorised by
the Act or other written laws but cannot be inconsistent with any State or
federal law.”
Note the High Court
statement set out above.
Thus the WA Dept of Local
Government and Communities considers banning citizens from interacting with the
local government they pay for and are subject to, is “good government”.
Furthermore, the Parliament
of Western Australia Joint Standing Committee on Delegated Legislation – and
therefore the Parliament - has been conned by manipulation and abuse of due
process, enabling unlawful subsidiary legislation to be approved by Parliament
and gazetted.
AUSTRALIAN LAW DECLARES:
THAT WHICH IS LAWFUL IS THAT WHICH IS NOT UNLAWFUL
Every public officer or official who exercises a power may only
exercise a power specifically granted to that office or individual incumbent –
otherwise the application or execution of that power is unlawful.
THERE IS NO LAW WHICH EMPOWERS A MAYOR OR SHIRE PRESIDENT TO BAN A
CITIZEN FROM PARTICIPATING IN THE GOOD
GOVERNMENT OF THEIR DISTRICT, QUESTIONING THAT GOVERNMENT ABOUT MATTERS
RELATING TO IT, OR ASPIRING TO BETTER
GOVERNMENT.
Pursuant to the
W.A. Constitution Act 1899, any action which does not produce
"BETTER" Local Government is unconstitutional and therefore unlawful.