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Item 8.1 - Attachment 1 |
DAC PCC Parking Enforcement and
Policy Opinion |
Opinion
Enforcement Policy and Procedure
Parking Enforcement Operations
This Opinion is provided at the request of Mr. Kevin Brennan, Change Manager Regulatory Services, Parramatta City Council.
The contents of this Opinion as appearing on this and the following 12 pages are protected by Legal Professional Privilege within the meaning of s. 118 of the Evidence Act 1995 (NSW) and the general law.
Scope of advice
The matters I have been called upon for opinion are as follows:
1. whether or not authorised officer can use discretion in regard to vehicles parked on footpaths,
2. do councils (other than Parramatta City Council) issue warnings for illegal parking on footpaths in residential areas,
3. the validity and/or legality of “operational procedures” or “enforcement guidelines” or the making of a “local order” whereby regulatory officers are instructed to act on priorities and issue warnings for vehicles illegally parked on footpaths in residential streets,
4. does council have the power not to enforce penalty notices which have been issued for parking on a footpath,
5. can council lawfully instruct staff not to issue an infringement for parking on a footpath, and
6. would the making of a “local order” assist in regulation and enforcement of the issue of parking on footpaths.
Summary of Advice
Using the same numbering as appearing immediately above:
1. authorised officers are entitled to exercise discretion in regard to vehicles parked on footpaths (or for that matter in any other fashion),
2. because of the detailed advice appearing below, it is not necessary to answer this question,
3. “operational procedures” or “enforcement guidelines” are not tainted with illegality – so long as they are not contrary to, or more onerous than, the Act or regulation to which they pertain. There is no ability to make a “local order” dealing with this subject matter.
4. yes.
5. this cannot be answered with either a simple “yes” or a simple “no”. Council does have the ability to issue uniform “enforcement guidelines” in respect of the enforcement of any legislation: but the further discussion on this matter appearing below must be considered.
6. No. Furthermore it is not legally possible.
Detailed Advice
1. Whether or not authorised officers can use discretion in
regard to vehicles parked on footpaths
The enforcement of parking legislation in
· Road Transport (General) Act 2005 – Chapter 4 and Chapter 5 - Part 5.3
· Road Transport (General) Regulation 2005 – Part 6 and Schedules 2 & 3
· Road Rules 2008 (made under the Road Transport (General) Act 2005)
· Local Government Act 1993 – Chapter 12 (Part 3)
By s. 377(1) of the Local Government Act 1993, the elected council delegates certain of its functions to the General Manager of the Council. That provision is as follows:
377 General power of the
council to delegate
(1) A
council may, by resolution, delegate to the general manager or any other person
or body (not including another employee of the council) any of the functions of
the council, other than the following:
(a) the appointment of a general manager,
(b) the making of a rate,
(c) a
determination under section 549 as to the levying of a rate,
(d) the making of a charge,
(e) the fixing of a fee,
(f) the borrowing of money,
(g) the
voting of money for expenditure on its works, services or operations,
(h) the
compulsory acquisition, purchase, sale, exchange or surrender of any land or
other property (but not including the sale of items of plant or equipment),
(i) the
acceptance of tenders which are required under this Act to be invited by the
council,
(j) the adoption of a management plan
under section 406,
(k) the
adoption of a financial statement included in an annual financial report,
(l) a
decision to classify or reclassify public land under Division 1 of Part 2 of
Chapter 6,
(m) the
fixing of an amount or rate for the carrying out by the council of work on
private land,
(n) the
decision to carry out work on private land for an amount that is less than the
amount or rate fixed by the council for the carrying out of any such work,
(o) the
review of a determination made by the council, and not by a delegate of the
council, of an application for approval or an application that may be reviewed
under section 82A of the Environmental Planning and Assessment Act 1979,
(p) the
power of the council to authorise the use of reasonable force for the purpose
of gaining entry to premises under section 194,
(q) a
decision under section 356 to contribute money or otherwise grant financial
assistance to persons,
(r) a
decision under section 234 to grant leave of absence to the holder of a civic
office,
(s) the
making of an application, or the giving of a notice, to the Governor or
Minister,
(t) this power of delegation,
(u) any
function under this or any other Act that is expressly required to be exercised
by resolution of the council.
The General Manager of the Council then delegates such of those functions to such officers of the council as the General Manager deems appropriate. This delegation of functions otherwise conferred upon the General Manager by the council is effected by means of s. 378 of the Local Government Act 1993. That provision is (relevantly) as follows:
378 Delegations by the
general manager
(1) The
general manager may delegate any of the functions of the general manager, other
than this power of delegation.
(2) The
general manager may sub-delegate a function delegated to the general manager by
the council to any person or body (including another employee of the council).
Once appropriately delegated by the General Manager, an authorised officer of the council is then an authorised officer for the purposes of the Road Transport (General) Act 2005, and (at least in respect of the issue of parking enforcement) is a “Class 12 officer” within the meaning of Schedule 2 of the Road Transport (General) Regulation 2005. This, together with the provisions of Chapter 4 and Chapter 5 (Part 5.3) of the Road Transport (General) Act 2005 and Part 6 of the Road Transport (General) Regulation 2005, entitle such an officer to issue penalty notices in respect of alleged infractions of the parking restrictions.
A “Class 12 officer” is defined in Schedule 2 of the Road Transport (General) Regulation 2005 as follows:
"Class
12 officer" means a person:
(a) who is employed by a local council,
or
(b) who is subject to the control and
direction of a local council,
and
who is an authorised person (within the meaning of the Local Government Act
1993) for the purposes of section 679 of that Act.
The authority for the issue of penalty notices is primarily to be found in s. 183 of the Road Transport (General) Act 2005. This section is contained within Chapter 5 Part 5.3, and is (relevantly) in the following terms:
183 Penalty notices for certain offences
(1) A
police officer or other authorised officer may serve a penalty notice on a
person if it appears to the officer that the person has committed any of the following
offences:
(a) an
offence under a provision of the road transport legislation (including an
offence by virtue of the operation of section 179 of this Act) that is
prescribed by the regulations as a penalty notice offence,
(c) an
offence under section 650 (1) or (4) of the Local Government Act 1993 (including
an offence by virtue of the operation of section 651 of that Act),
(g) an
offence under the Roads Act 1993 or any regulation made under that Act
(including an offence by virtue of the operation of section 244 of that Act)
that is prescribed by the regulations as a penalty notice offence.
In particular, the opening words of s. 183(1) bear particular mention: “ …authorised officer may serve a penalty notice …” (emphasis added)
The provision clearly vests a discretion in the authorised officer. The officer may decide to issue the penalty notice, or alternatively, not to issue the penalty notice. The issue of a penalty notice (or indeed the bringing of legal proceedings in respect of such an offence is not mandatory).
Attention is specifically drawn to the definition of the word “may” as appearing in the Interpretation Act 1987. That definition (and the definition of the word “shall”) are as follows:
9 Meaning of may and
shall
(1) In
any Act or instrument, the word “may”, if used to confer a power, indicates
that the power may be exercised or not, at discretion.
(2) In
any Act or instrument, the word “shall”, if used to impose a duty, indicates
that the duty must be performed.
Accordingly, it is beyond question that an authorised officer is entitled to use discretion in the issue of penalty notices: not only under the Road Transport Legislation – but under any legislation.
If it were otherwise, absurd results would ensue, such as vehicles being infringed in the following circumstances:
· A vehicle that had overstayed a time limitation by only a matter of seconds,
· A vehicle standing so that approximately 3 millimetres of any part of it were occupying a “No standing” area,
· A vehicle a couple of millimetres “out of square” from the kerb – and accordingly not strictly parallel to the kerb,
· A vehicle standing at an angle of 41 degrees in an area designated as 45 degree angle parking.
To merely state the above propositions is to reject them. Discretion is an essential ingredient of any law enforcement action, and the absence of it would be to bring the law into utter disrepute.
3. The validity and/or legality of “operational procedures” or “enforcement
guidelines” or the making of a “local
order” whereby regulatory officers are instructed to act on priorities and
issue warnings for vehicles illegally parked on footpaths in residential
streets
As will be discussed in item 6/ below it is not legally possible to make a “local order” in respect of this subject matter. Accordingly the advice under this sub-heading will deal with the expressions “operational procedures” or “enforcement guidelines”. For the purposes of this advice, the writer considers these expressions to be interchangeable.
It is highly desirable that “enforcement guidelines” are developed and issued to all authorised officers involved in the issue of penalty notices – or for that matter any other legal proceedings.
“Enforcement guidelines” assist to:
· Clarify otherwise obscure or controversial issues,
· Assist to try to ensure as much consistency as is possible in the enforcement of legislation,
· Resolve complaints against officers,
· Resolve complaints against the process of law enforcement itself,
· Try to minimise arbitrary or capricious enforcement action.
This said, however, it is vital to note that “enforcement guidelines”:
· Are guidelines, and guidelines only. Accordingly, in any particular case (at the discretion of the officer)it is permissible to deviate from them,
· Must not be applied inflexibly, or without regard to a relevant consideration arising in any particular case,
· Must never by contrary to, or more onerous than, the subject matter with which they deal,
· Must be transparent and open,
· Must be applied as uniformly as possible: and never so as to gain some personal, corporate or collateral advantage for any person,
· Must not operate so as to constitute an abandonment of the enforcement responsibility entrusted to the council by Parliament.
“Enforcement guidelines” are capable of being legally valid, or legally invalid. In some cases, a particular guideline may even be capable of being “corrupt conduct” within the meaning of the Independent Commission Against Corruption Act 1988.
As to whether a “enforcement guideline” falls on one side of the line or the other is largely a matter of common sense and purity of intention. The following examples are illustrative:
Examples of acceptable enforcement guidelines:
· A “grace period” of 10 minutes for any vehicle overstaying a time limitation of 60 minutes or more,
· A “tolerance” of 30 centimetres of encroachment into a “No Standing” zone,
· A “move immediately” direction in respect of a person sitting in an idling vehicle in (say) a Bus or Taxi zone.
Examples on unacceptable enforcement guidelines:
· No enforcement on any kind in a particular street,
· No enforcement in respect of council vehicles (or any other vehicle belonging to a certain person or class of persons)
· Disproportionate surveillance and enforcement action against a certain person or class of persons. (Except, in the case of a “serial offender” where the purpose of the additional attention is to ensure compliance by that person and not to secure some collateral purpose.)
It is important that the council (and for that matter any other enforcement agency) maintain the ability to issue over-arching directions to its enforcement officers so as to ensure that the policy objectives of that organisation are realised. It simply could never be the case that once a person is authorised to issue penalty notices that such a person could never be subject to the control and direction of the council.
Such is even contemplated by the definition of “Class 12 officer” (reproduced above), where, in b) of that definition it is specifically envisaged that a person who is not an employee of the council is to be “subject to the control and direction of the council”.
It is not necessary to say that an employee is to be subject to the control and direction of the employer – because this follows as a matter of common law.
The fact that enforcement action need not
be taken in every instance of non-compliance with the law has long been
recognised in the common law world. One
powerful recognition of this principle is the speech by Sir Hartley Shawcross
QC, Attorney General, to the Hose of Commons on
It has never been the rule in this country … that
suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under
which the Director of Public Prosecutions worked provided that he should …
prosecute ‘wherever it appears that the offence or the circumstances of its
commission is or are of such a nature that a prosecution in respect thereof is
required in the public interest’. That
is still the dominant consideration.
This remains a correct statement of the law
in
In
Because many of the considerations listed by Mr. Cowdery are clearly not applicable to this level of enforcement, I have reproduced only those considerations which I consider to be relevant to a determination in respect of a parking offence. Those considerations, as detailed by Mr. Cowdery, are as follows:
· the seriousness or, conversely, the triviality of the alleged offence or that it is of a “technical” nature only,
· the obsolescence or obscurity of the law,
· whether or not the prosecution would be perceived as counter-productive; for example, by bringing the law into disrepute,
· whether or not the alleged offence is of considerable general public concern,
· the prevalence of the alleged offence and any need for deterrence, both personal and general,
· the availability and efficacy of any alternatives to prosecution,
· the likely outcome in the event of a finding of guilt, having regard to the sentencing options available to the court,
· any mitigating or aggravating circumstances.
Mr. Cowdery goes on to say that a decision not to proceed must not be influenced by:
· the race, religion, sex, national origin, social affiliation or political associations, activities or beliefs of the alleged offender or any other person involved (unless they have special significance to the commission of the particular offence or would otherwise be taken into account objectively),
· personal feelings of the prosecutor concerning the offence, the alleged offender or a victim,
· possible political advantage or disadvantage to the government or any political party, group or individual,
· the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution or otherwise involved in its conduct, or
· possible media or community reaction to the decision.
Mr. Cowdery also notes that:
It is recognised that the resources available for prosecuting
are finite and should not be expended pursuing inappropriate cases. Alternatives to prosecution, including
diversionary procedures, should always be considered.
As mentioned above, any “enforcement guideline” must not be inflexible. Accordingly, if a guideline was to be contemplated with respect to vehicles parked contrary to rule 197 or rule 208, the guideline would have to address issues such as:
· the nature, description (including dimensions) and character of the street concerned,
· the amount of traffic (both vehicular and pedestrian) which actually was (or might reasonably be expected to use the street at various times,
· the description of the vehicle concerned (including its dimensions and weight)
· the purpose (or apparent purpose) of the vehicle standing in the offending position,
· whether the infraction is fleeting or is likely to continue for a protracted period of time,
· whether the driver or owner is in attendance or nearby,
· whether any actual or potential danger was occasioned to vehicles or pedestrians,
· whether the presence of the vehicle on the footpath was likely to occasion any physical damage to the area,
· whether any essential services (such, for example as hydrants) were being impeded or obstructed,
· whether or not a complaint had been received about the vehicle or other vehicles,
· whether or not the disobedience of the rule could nonetheless be seen to do little or no immediate harm.
The above list is by no means exhaustive.
In particular, it is noted that both rules 197 and 208(1) & (8) envisage a situation where a vehicle “stops” in the circumstances described in those rules. It would appear to the writer that if a vehicle were to be “parked” so as to be unattended in such circumstances that this would be an aggravating feature of non-compliance.
Providing issues such as those above are addressed in ay enforcement guideline, and each officer is not forbidden from departing from the guideline in any given case, it is not impermissible for the council to formulate a general guideline in respect of this offence.
However, council must be aware that if a person suffers loss or damage, either physically or to any property, and it can be shown that such a guideline materially contributed to such loss or damage, that exposure in negligence cannot be discounted.
It is beyond the scope of this advice to consider the vast array of circumstances that could give rise to such liability – save to note that potentially, council, as the roads authority, must be continually vigilant in respect of hazards on roads which may cause loss or damage to persons to whom it owes a duty of care.
4. Does council have the power not to enforce penalty notices
which have been issued for parking on a footpath?
Yes. A person holding the appropriate delegation from the general manager need only communicate to the Infringement Processing Bureau that any matter is to be “no actioned” or “cautioned” and the Bureau will act on that direction.
However, such a direction to the Bureau must be made in the genuine administration of council’s enforcement activities.
Attention is drawn to the provisions of ss. 7, 8 and 9 of the Independent Commission Against Corruption Act 1988 which provide as follows:
7 Corrupt
conduct
(1) For
the purposes of this Act, conduct is any conduct which falls within the
description of corrupt conduct in either or both of subsections (1) and (2) of
section 8, but which is not excluded by section 9.
(2) Conduct
comprising a conspiracy or attempt to commit or engage in conduct that would be
corrupt conduct under section 8 (1) or (2) shall itself be regarded as corrupt
conduct under section 8 (1) or (2).
(3) Conduct
comprising such a conspiracy or attempt is not excluded by section 9 if, had
the conspiracy or attempt been brought to fruition in further conduct, the
further conduct could constitute or involve an offence or grounds referred to
in that section.
8 General nature of corrupt
conduct
(1) Corrupt conduct is:
(a) any
conduct of any person (whether or not a public official) that adversely
affects, or that could adversely affect, either directly or indirectly, the
honest or impartial exercise of official functions by any public official, any
group or body of public officials or any public authority, or
(b) any
conduct of a public official that constitutes or involves the dishonest or
partial exercise of any of his or her official functions, or
(c) any
conduct of a public official or former public official that constitutes or
involves a breach of public trust, or
(d) any
conduct of a public official or former public official that involves the misuse
of information or material that he or she has acquired in the course of his or
her official functions, whether or not for his or her benefit or for the
benefit of any other person.
(2) Corrupt
conduct is also any conduct of any person (whether or not a public official)
that adversely affects, or that could adversely affect, either directly or
indirectly, the exercise of official functions by any public official, any
group or body of public officials or any public authority and which could
involve any of the following matters:
(a) official
misconduct (including breach of trust, fraud in office, nonfeasance,
misfeasance, malfeasance, oppression, extortion or imposition),
(b) bribery,
(c) blackmail,
(d) obtaining or offering secret
commissions,
(e) fraud,
(f) theft,
(g) perverting the course of justice,
(h) embezzlement,
(i) election bribery,
(j) election funding offences,
(k) election fraud,
(l) treating,
(m) tax evasion,
(n) revenue evasion,
(o) currency violations,
(p) illegal drug dealings,
(q) illegal gambling,
(r) obtaining financial benefit by vice
engaged in by others,
(s) bankruptcy and company violations,
(t) harbouring criminals,
(u) forgery,
(v) treason or other offences against the
Sovereign,
(w) homicide or violence,
(x) matters of the same or a similar
nature to any listed above,
(y) any conspiracy or attempt in relation
to any of the above.
(3) Conduct
may amount to corrupt conduct under this section even though it occurred before
the commencement of this subsection, and it does not matter that some or all of
the effects or other ingredients necessary to establish such corrupt conduct occurred
before that commencement and that any person or persons involved are no longer
public officials.
(4) Conduct
committed by or in relation to a person who was not or is not a public official
may amount to corrupt conduct under this section with respect to the exercise
of his or her official functions after becoming a public official.
(5) Conduct
may amount to corrupt conduct under this section even though it occurred
outside the State or outside
(a) matters
arising in the State or matters arising under the law of the State, or
(b) matters
arising outside the State or outside
(6) The
specific mention of a kind of conduct a provision of this section shall not be
regarded as limiting the scope of any other provision of this section.
9 Limitation on nature
of corrupt conduct
(1) Despite
section 8, conduct does not amount to corrupt conduct unless it could
constitute or involve:
(a) a criminal offence, or
(b) a disciplinary offence, or
(c) reasonable
grounds for dismissing, dispensing with the services of or otherwise
terminating the services of a public official, or
(d) in
the case of conduct of a Minister of the Crown or a member of a House of
Parliament-a substantial breach of an applicable code of conduct.
(2) It
does not matter that proceedings or action for such an offence can no longer be
brought or continued, or that action for such dismissal, dispensing or other
termination can no longer be taken.
(3) For the purposes of this section:
"applicable
code of conduct" means, in relation to:
(a) a
Minister of the Crown-a ministerial code of conduct prescribed or adopted for
the purposes of this section by the regulations, or
(b) a
member of the Legislative Council or of the Legislative Assembly (including a
Minister of the Crown)-a code of conduct adopted for the purposes of this
section by resolution of the House concerned.
"criminal
offence" means a criminal offence under the law of the State or under any
other law relevant to the conduct in question.
"disciplinary
offence" includes any misconduct, irregularity, neglect of duty, breach of
discipline or other matter that constitutes or may constitute grounds for disciplinary
action under any law.
(4) Subject
to subsection (5), conduct of a Minister of the Crown or a member of a House of
Parliament which falls within the description of corrupt conduct in section 8
is not excluded by this section if it is conduct that would cause a reasonable
person to believe that it would bring the integrity of the office concerned or
of Parliament into serious disrepute.
(5) Without
otherwise limiting the matters that it can under section 74A (1) include in a
report under section 74, the Commission is not authorised to include a finding
or opinion that a specified person has, by engaging in conduct of a kind
referred to in subsection (4), engaged in corrupt conduct, unless the Commission
is satisfied that the conduct constitutes a breach of a law (apart from this
Act) and the Commission identifies that law in the report.
(6) A
reference to a disciplinary offence in this section and sections 74A and 74B
includes a reference to a substantial breach of an applicable requirement of a
code of conduct required to be complied with under section 440 (5) of the Local
Government Act 1993, but does not include a reference to any other breach of
such a requirement.
5. Can council lawfully instruct staff not to issue an infringement for parking on a footpath?
It is permissible for council to formulate an “enforcement guideline” in respect of any enforcement activity whether under the Road Transport Legislation or otherwise.
Authorised officers, whether they are employees or other persons subject to the control and direction of the council, would (subject to what is said about enforcement guidelines above) then be required to comply with that enforcement guideline.
Council must not – however – instruct an authorised officer not to issue a penalty notice in respect of a particular matter. The discretion vested by the Act resides with the authorised officer.
Further, if the council were to either issue an enforcement guideline, or conduct itself in such a manner so as to abandon its enforcement responsibility in relation to any matter, it is open to any person having a sufficient interest to petition the Supreme Court to order the council to fulfil its public duty.
A distinction must be drawn between the mischief contemplated by rule 208(8) and that contemplated by rule 197.
Sub-rule 208(8) is in the following terms:
208(8)
The driver must position the
vehicle so the vehicle does not unreasonably obstruct the path of other
vehicles or pedestrians.
In respect of sub-rule 208(8): it is considered that a council would abandon its enforcement responsibility, or that an enforcement guideline would be contrary to the Act, if such action or guideline:
· attempted to legalise what sub-rule 208(8) otherwise forbids, or
· attempted to mandate “wilful blindness” on the part of its enforcement officers in all but the most limited of circumstances,
Rule 197 is in the following terms:
197 Stopping on a path,
dividing strip or nature strip
(1) A
driver must not stop on a bicycle path, footpath, shared path or dividing
strip, or a nature strip adjacent to a length of road in a built-up area,
unless:
(a) the
driver stops at a place on a length of road, or in an area, to which a parking
control sign applies and the driver is permitted to stop at that place under
the Australian Road Rules , or
(b) the
driver is permitted to stop under another law of this jurisdiction.
In respect of rule 197 (which applies irrespective of whether any actual obstruction or danger is caused) it is considered that the council may adopt an appropriate enforcement guideline (which would address the considerations raised detailed above).
However, if such a guideline purported to simply direct that action not be taken in respect of rule 197, such would constitute an abandonment of council’s enforcement responsibilities.
In the event that the council wished not to proceed with a particular penalty notice issued, it has the power to direct the Infringement Processing Bureau not to proceed with enforcement action in relation to that notice.
6. Would the making of a “local
order” assist in regulation and enforcement the issue of parking on
footpaths?
The only ability for council to make an “Order” is to be found in the provisions of:
· Chapter 7 Part 2 of the Local Government Act 1993, or
· Part 6 Division 2A of the Environmental Planning and Assessment Act 1979.
None of the matter contained within those provisions apply to this subject matter. Further, the only ability to make a “Local Policy” is to be found in Chapter 7 Part 3 of the Local government Act 1993.
Again, those provisions are not applicable to this subject matter.
Accordingly, council is left with the position of formulating a valid “enforcement guideline” as discussed above. Obviously, such a guideline has no legal effect – and can never fetter the discretion of an authorised officer.
Mark Preece
Barrister at Law
Mc Hugh Chambers
7th August, 2008