Mallesons Stephen Jaques - Solicitors
Advice to Pittwater Council
14 February 2000
Attention: Mr Jeff Lofts
The General Manager
Fax 9970 6099
Australian Road Rules - Parking Matters
We refer to your electronic mail dated 24 December 1999 instructing us to provide advice in respect of the following matters:
1 whether the Council is able to direct the manner in which its officers apply the new transport legislation in New South Wales: that is, the Road Transport (General) Act 1999, Road Transport (Safety and Traffic Management) Act 1999, Road Transport (General) Regulation 1999, Road Transport (Safety and Traffic Management) Regulation 1999 (the “New Legislation”);
2 whether the Council is permitted to erect general advisory signs in respect of matters such as parking on road reserves; and
3 whether the Council can issue warnings rather than penalty notices for offences under the New Legislation.
We address each of these matters below.
1 Discretion to apply the New Legislation and Directions by Council
The first proposition is that the issue of the power of the Council to direct its officers in respect of the performance of the relevant functions can only arise if the officers themselves are vested with a discretionary power, rather than a mandatory obligation. Absent a discretionary power, the issue of Council direction cannot be relevant. Accordingly, we address this issue at the outset, noting that it is also relevant to issue 3 below.
Part 3 of the Road Transport (General) Act 1999 (the “General Act”) makes provision for the enforcement of the New Legislation. Division 1 of Part 3 of the General Act provides that an:
“… 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” (emphasis added).
The offences which are classified as “penalty notice offences” are detailed in the Road Transport (General) (Short Description and Penalty Notice Offences) Regulation 1999 and include:
- stopping on a path/strip in a built up area (rule 197(1) of the Australian Road Rules -“ARR”);
- obstructing access to a ramp/path/passageway (rule 198(1) of the ARR); and
- stopping on/across a driveway/other access to/from land (rule 198(2) of the ARR).
As you would be aware, rule 197 of the ARR effectively states that it is a penalty notice offence to park on a footpath, shared path or dividing strip.
The issue in this matter is whether the word “may” in Division 1 of Part 3 confers a discretion on the authorised officer (that is, reading the word “may” in its ordinary sense as an empowering provision) or imposes a positive duty on the authorised officer if the conditions precedent to the exercise of the power are satisfied (that is, reading the word “may” as “must”).
While this may appear straightforward (“may” surely means “may” not “must”), there are volumes of cases in which Courts have construed the word “may” as “must” and “must” or “shall” as “may”, depending on the context. Because the exercise depends on the context, minds (including the minds of Judges) may well differ on precisely the same statutory provision. That having been said, we can only identify the relevant factors and express our opinion as to the proper construction of the statutory provision.
First, section 9 of the Interpretation Act 1987 (NSW), states that when “may” is used in an Act or instrument in New South Wales to confer a power, then this indicates that the power may be exercised or not, at discretion. By way of contrast, section 9 states that if a duty is to be imposed, the New South Wales Act or instrument is to use the word “shall”.
Secondly, the cases (inconsistent as they are in substance) are at least clear that the relevant principle is that “may” is to be construed according to its ordinary meaning (of conferring a power, rather than imposing a duty) unless there is some matter in the statute which clearly discloses a contrary intention. Such a contrary intention has been found, for example, in cases involving:
- the issue of a summons by a magistrate;
- the making of an order by a magistrate to restrain a public nuisance; and
- the making of an order against parole, if the Court was satisfied that parole was inappropriate.
In this case, the only factors which we can discern which may weigh against the ordinary meaning of “may” as conferring a power rather than imposing a duty are, first, that a penalty notice is a form of criminal offence and secondly, that there is a condition precedent to the exercise of the power (namely, the appearance of an offence to the authorised officer).
As to the first matter, we do not doubt that prosecutorial bodies (such as the Crown, the EPA and the Council) have a discretion whether or not to prosecute in a particular case. The Council, for example, routinely determines not to prosecute offenders for illegal building work on a range of grounds (cost, likelihood of success, deterrence value, contrition of offender etc). The EPA, indeed, has adopted formal Prosecution Guidelines which assist it in determining whether or not prosecution is an appropriate response to any particular case involving an offence.
Accordingly, we do not accept that “may” necessarily means “must” merely because the context is that of the criminal law.
As to the second matter, there is a condition precedent to the exercise of the power. In a number of cases, the existence of such a condition precedent in circumstances where the power exercised was judicial in character has resulted in the Court construing “may” as “must”. In this case, however, the power is not judicial and we can see no warrant for the existence of the condition changing the ordinary meaning of “may” to “must”.
In consequence, we conclude that the authorised officer may issue a penalty notice, if it appears to that officer that an offence has been committed. Given this, can the Council direct the authorised officer, for example, not to exercise the power or only to exercise it in a particular way? In our view, the answer to this question must be in the negative. The power is vested by the legislation in the authorised officer and must be exercised by that officer. For the Council to give directions in respect of the exercise of the power, in our opinion, would be unlawful - this is because (by way of contrast with other Council powers) the statutes creating penalty notices do not vest the power in the Council or its General Manager to be delegated to the officers, but vest the primary power in the officers themselves. In consequence, we are not satisfied that the Council, as a matter of administrative or employment law, may lawfully direct the exercise (or non-exercise) of the power.
2 Erection of signs
The Council, as a roads authority, has a general power under section 115 of the Roads Act 1993 to regulate traffic on public roads by means of “conspicuously displayed or adjacent to the public road.” However, this power can only be exercised in a limited range of circumstances which include:
- for the purpose of protecting members of the public from any hazards on the public road; or
- for a purpose which the Council is authorised or required by or under the Roads Act 1993, or any other Act, to regulate traffic.
For your information, we attach a copy of section 115. A roads authority cannot regulate traffic on a public road other than in accordance with the Roads Act 1993 (section 114).
The Road Transport (Safety and Traffic Management) Act 1999 (section 50) also states that a person cannot install or display a prescribed traffic control device (which includes signs) without approval under Division 1C of Part 6 of the Transport Administration Act 1988. We attach, for your information, extracts from the ARR which prescribe the signs which are taken to be “prescribed traffic control devices”. As you will note, parking signs are clearly contemplated as “prescribed traffic control devices”.
However, we have spoken with Mr Bob O’Keefe of the Roads and Traffic Authority (“RTA”) who has informed us that in relation to roads and road related areas, the Council has a delegated authority from the RTA to erect (approved) signs. We have not seen any delegation which suggests that the Council can take this action (although this may well be the case). It should be noted that should such a delegation exist, its terms must be strictly complied with. For example, if the delegation be in terms which allows signs to be erected on roads (and Mr O’Keefe has informed that this is the limit of the delegation), the Council will still have to obtain RTA approval for signs regulating parking on nature strips, footpaths and so on.
Mr O’Keefe has also informed us that for a sign to be erected on nature strips, footpaths and so on, the following steps must be undertaken:
- the Council must choose a sign, location etc and submit this proposal to the traffic committee;
- the traffic committee must review the Council’s proposal; and
- the traffic committee must refer the proposal to the RTA with a recommendation.
In respect of the design of the sign, we were advised that the RTA is currently considering a blue and white sign with the words “Parking permitted on nature strip”. It had not been determined where the sign should be placed or in what direction it should face.
As an alternative to this process, it was suggested that nature strips, (etc.) could be converted to “road related areas’ (which would result in substantial costs) in which case the Council could erect signs under the “delegation” Mr O’Keefe mentioned.
It appears to us, therefore, that the RTA has not formalised its processes in respect of approving parking signs on nature strips and the footpath. We suggest that the Council continue to liaise with the RTA concerning the applications which it may wish to make.
The Council, therefore, may only erect traffic and parking control signs in limited circumstances. If the erection of the sign is not on a road, then RTA approval is required. If it is on a road, then the Council may erect the sign but only within the scope of its delegation. It would not be open to the Council, in particular, to attempt to authorise an activity which is otherwise an offence (e.g. parking on that part of the road reserve set aside for footpaths) by the erection of a sign, other than in accordance with a RTA approval.
3 Issue of warnings
As discussed in 1 above, we have concluded that an authorised officer has a power (but not a statutory duty) to issue a penalty notice, if it appears that an offence has been committed. This applies, in our view, to the whole range of penalty notice offences including pollution and waste disposal offences. There may be cases, therefore, where the authorised officer considers whether or not it is appropriate to issue a warning, rather than a penalty notice. This issue requires consideration of the nature of the discretion itself.
Any discretion must be exercised lawfully. It must not be exercised (or not exercised) for any improper or irrelevant reason or the exercise (or non-exercise) is unlawful conduct and, indeed, may even be corrupt conduct depending on the circumstances.
As a consequence, it is our opinion that while the statute confers a power (rather than imposes a duty), an authorised officer, if satisfied that the offence has been committed, would only be able to exercise a discretion not to issue the penalty notice in very limited circumstances. To do otherwise runs the real risk of having acted unlawfully (because of a miscarriage of the exercise of discretion). These limited circumstances would potentially include first offenders but could not, in our view, properly include repeat offenders or such matters as inability to pay (a matter for the debt recovery process not the issue of the notice), the identity of the offender or the mere absence of harm in the case of a repeat offender.
The authorised officers should also appreciate that a failure to issue a penalty notice, in circumstances where the offence appears to have been committed, may not only run the risk of improperly exercising the discretion, but may also expose the Council and the officers to claims for damages if harm is caused by the breach. For example, if a car is illegally parked in a dangerous position then, regardless of the existence of the power under the statute, a common law duty of care may well arise in respect of both the Council and the authorised officer to take all lawfully available steps to abate the harm including issuing the penalty notices, which may act as a prompt to cease the illegality or as a deterrent in the future.
Accordingly, while we are satisfied that there is a power to issue warnings rather than penalty notices, it is our view this power is very limited and that, in practice, avoiding the risk of an improper, unlawful or even corrupt exercise of the power, would exclude all cases other than first offences where no risk of harm is caused by the illegality. Because the issue of identifying a risk of harm may involve relatively fine factual distinctions, by far the safer course (from the perspective of the Council and the authorised officer) is for the notices to be issued.
We should note, of course, that the discussion above assumes that the authorised officer is satisfied that there appears to be an offence. If not so satisfied, the power to issue the notice cannot be exercised at all. To purport to exercise the power, if not so satisfied, is itself improper and unlawful. It must appear to the officer that the offence has been committed - not that the offence might have been committed. The latter is insufficient to trigger the power.
Please contact us if you wish to discuss this matter further.
[Sgd] George Power
[Sgd] Jayne Jagot
Direct line (61 2) 9296 2117
Direct line (61 2) 9296 2196