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The purpose of this bulletin is to remind local governments of the legislative restrictions on regulating the distribution of how-to-vote cards and the placement of election signs.
Section 36 of the Local Government Act 2009 (the Act) provides that a local government must not make a local law that:
The intent of these provisions is to protect the implied constitutional guarantee of freedom of political communication.
In essence, a local government cannot, in any way, regulate the distribution of how-to-vote cards associated with any local, state or federal government election.
Any provision to the contrary contained in a local law or a subordinate local law that deals with the distribution of how-to-vote cards is invalid to the extent of its inconsistency with section 36 of the Act.
With regard to election signs or posters, a local law or subordinate local law must not prohibit their display in a local government area where the signs or posters are associated with a local, state or federal government election.
Any provision contained in a local law or a subordinate local law, to the extent that it is contrary to section 36 of Act, is also invalid and of no effect.
Notwithstanding this, the Act does allow local governments discretion with regard to regulating the placement of an election sign or poster. A local government must, however, carefully balance its responsibilities in implementing local laws for the good rule and governance of its area while also being mindful of protecting the implied constitutional guarantee of freedom of political communication.
With this in mind, it is considered appropriate that a local government could regulate the placement of election signs and posters in reasonable and appropriate circumstances including, for example where election signs may:
Given both local government and state elections will be held in 2012, local governments are encouraged to review the content of their existing local laws and subordinate local laws to identify any potential inconsistencies with the Act and the implied constitutional guarantee of freedom of political communication.
If an inconsistency is identified consideration should be given to implementing processes to prevent enforcement action from being undertaken while the local government commences the local law making process to remove the inconsistency.
The risks associated with a local government introducing and enforcing a local law that is inconsistent with these requirements includes the potential for costly legal challenges being brought against the local government.
In addition, the Minister for Local Government has powers under the Act to direct a local government to amend a local law to remove a provision that is contrary to a local government Act or to revoke a local government's decision to make the local law.
If a local government has concerns with the content of its local laws, or is intending to introduce a new local law or amend an existing local law on this issue in future, it is strongly recommended that the local government seek and be guided by its own legal advice.