Report on Election Signage. for General Meeting 15th Jan 08 .

To be Included
with 8/9 Report by Acting CEO Mr RA Fredman.
To supply further Information regarding Election Signage, Political Signage and the Freedom of Speech, per Constitutional Protection.

1. There are political signs through out the road reserves of the Cooloola Shire some remaining from the last Federal Election, re Kate Malloy and other candidates.

2. At Federal Election and State Elections candidates such as Warren Truss had political signs on private property, Bill Boards and road reserves.

3. No applications to Cooloola Shire Council were made by any candidates, or any other people before erecting political signs. Signs were erected prior to 28 days of the election.

4. Many political signs are in situ through out the shire, some have been in place for many years, Ie. Referring Local Government ‘Greg has a Hairy Nose’, Tin Can Bay Rd.
Signs referring to Peter and Mary and the Dam.

5. Complaints have been received concerning the above signs.

6. Quite correctly Cooloola Shire Council has taken no action to harass or hinder the above mentioned political signs or the owners of the signs or the owners of the land that they are situated on. CSC has not even removed the political/election signs from the property that it is responsible for the public road way.

7. If citizens want to put up signs on there own property saying, Ban Floride, Ban Nuclear Power, Vote for Guy Fawkes they have the constitutional right to do so it is a Freedom of Speech and their democratic freedom to petition others to their cause of that petition.

8. The reason for the election sign report before Council is that, last week the acting CEO phoned me and asked me to remove a sign, with ‘Vote Ron Owen for Mayor’, the sign was moved to another location. I informed the Acting CEO that there was a political /election sign on private property outside 24 Mc Mahon Rd, and if he thought he had the power to prosecute or take down this sign to please come straight away, or to notify me when he or any member of his staff was attending so that I could have camera’s and reporters present to record the violation of the land holders Constitutional rights. He told me that he was not coming as he had not received a complaint from a member of the General Public, and he would only act if there was a complaint. I informed him that I was making an official complaint, and asked him that as he had an official complaint when was he coming. He told me that he would not accept my official complaint.

9. The COOLOOLA SHIRE COUNCIL Subordinate Local Law No. 11.1 (Election Advertisements) 2005 states,
2 Object
(1) The object of this subordinate local law is to supplement Local Law No. 11
(Control of Advertisements)
(Subordinate means subordinate to Local Law No 11 (Sign Codes))
a) Local Law No 11 is the Actual Local Law which is gazetted in the Government Gazette and has followed a tightly held process. Unfortunately, Local Law No 11 (Control Of Advertising) has been gazetted under the Local Government Act 1993, Notice (No 3) 1996 published in the Gazette on 20th December 1996 but there seem no record of the gazettal of Local Law No 11 (Sign Codes). This might be legitimised if Local Law No 11 refers to the (Sign Code) but it does not it only refers to a Council Document called “Policy” .
b) This Local Law is null and void and staff have been attempting to correct this process for several years besides subordinate Electoral Signs 11.1 being a supplement to the Local Law no 11 which is still undergoing this process to legitimise, is null and void.

c). At the front of this subordinate Local Law No 11.1 Electoral Signs there is no information as to when this was processed through the Governor-in-Council. No date as to when it was gazetted in the Government Gazette to fore fill this process and has no commencement date so on that basis again is null and void.
d). The subordinate Local Law No 11.1 Electoral Signs document refers in its sections such as definitions to the Act. Yet does not inform us of which Act, the Electoral Act, or the Local Government Act, or the Act Interpretation Act it refers to so can draw no power, interpretation or intention from “the Act”.
e).The subordinate Local Law No 11.1 Electoral Signs document refers in its sections to other Local Laws yet does not state which ones they are just S12(3) or S 11(3). We may presume that they are the Local Law No 11, but if they are they have no power of legitimacy as this Local Law has not been proclaimed in the Government Gazette and has not been processed into law correctly. So again produces a null and void status for this document.
f). Cooloola Shire Council Subordinate Local Law No. 11 (Signs Code) which states, To be read with: Local Law No. 11 (Control of Advertisements) which is a null and void document due to the reasons above, also states that “Divisional Councillor are permitted to erect one (1) election sign” which as the rights of Council divisions have been removed by the majority of this Council then this document again is null and void as it does not apply to a Candidate or a Division.
(g) Cooloola Shire Council Subordinate Local Law No. 11 (Signs Code) which states, To be read with: Local Law No. 11 (Control of Advertisements)
1.0 PREAMBLE
CITATION
This is Subordinate Local Law No. 11 (Signs Code)
AUTHORITY
This Subordinate Local Law has been adopted (for the purposes of advertising) as Subordinate Local Law pursuant to the provisions of Chapter 12 of the Local Government Act.

10. The Local Government Act controls the Local Governments powers to make Local Laws
Chapter 12 Local laws and subordinate local laws
Part 1 Preliminary
Division 1 Object and application
848 Object
(1) A local government’s jurisdiction to make laws is stated in
chapter 2, part 1, division 3.
(2) This chapter provides a common law-making process for all
laws made by local governments.
(3) It also provides for subordinate local laws to assist the
detailed implementation of a local law’s objects.
It also makes provisions for redundant laws and places expiry dates which is defined in
899A Definitions for pt 5 In this part- expiry date means-
(a) for the first review date-31 December 2010; or
(b) for a subsequent review date-31 December in the year
that is 2 years after the review date.
first review date means 1 January 2008.
But specifically makes the provisions that remove the Jurisdiction of Councils Local Law making powers in two specific area’s

854A No jurisdiction to make local laws and subordinate local laws about distributing how-to-vote cards
(1) A local government has no jurisdiction to make a local law or
subordinate local law prohibiting or regulating the distribution
of how-to-vote cards for an election under this Act or the
Electoral Act 1992.

854AA No jurisdiction to make local laws and subordinate local
laws prohibiting placement of election signs or posters
(1) A local government has no jurisdiction to make a local law or
subordinate local law prohibiting, in its area, the placement of
election signs or posters for an election under this Act, the
City of Brisbane Act 1924, the Electoral Act 1992 or the
Commonwealth Electoral Act 1918 (Cwlth).
(2) A local law or subordinate local law, to the extent it is
contrary to subsection (1), is of no effect.
(3) In this section-
election signs or posters means signs or posters that are able,
or are intended-
(a) to influence a person about voting at an election; or
(b) to affect the result of an election.

11. The reasons for both of these are very obvious as if they were not included Councillors could propose, debate and vote in their own cause, they would have a “Personal Material Interest’ in the outcome. For example they could ban their political opponents How to Vote Cards or ban their political opponent political signs. A councillors may have an interest in a newspaper and want all candidates to compete in that forum where he had a free advantage. Those are some of the reasons why the Local Government Act has taken the Jurisdiction away from councils to legislate in this area. Section 854AA makes Cooloola Shire Councils electoral Sign 11.1 null and void.

12. Please Note.244 Exclusion from meeting of councillor with material
personal interest
(1) A councillor who has a material personal interest in an issue
to be considered at a meeting of the local government, or any
of its committees-
(a) must disclose the interest to the meeting; and
(b) must not be present at or take part in the meeting while
the issue is being considered or voted on.
(2) A councillor who is barred from a meeting under subsection
(1) must not be in the chamber where the meeting is being
conducted, including any area set apart for the public.
All Councillors have a material personal interest and should not discuss or take part in any motion where we have no jurisdiction and have a material personal interest.

13. Other reasons why the Local Government Act 1993 has removed this jurisdiction and not given power to Local Governments to legislate in these areas is the Constitutional protection provisions under the Commonwealth Crimes Act 1912 and the Queensland Criminal Code of 1899. The Constitutional protections are enforced by this legislation and would impact on staff either removing signs from private property or writing to property owners hindering or obstructing them in carrying out a Constitutional right to place political signs or messages on their property.

14. See below. CRIMES ACT 1914 - SECT 28 Interfering with Political Liberty

Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person, of any political right or duty, shall be guilty of an offence.
Penalty: Imprisonment for 3 years.

And
CRIMINAL CODE ACT 1899 - SCHEDULE 1 THE CRIMINAL CODE.
78 Interfering with political liberty

(1) 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 misdemeanour, and is liable to imprisonment for 2 years.
(2) If the offender is a public officer, and commits the offence in abuse of the offender’s authority as such officer, the offender is liable to imprisonment for 3 years.

15. No provision has been placed in the Cooloola Shire Council’s Electoral Signs Local Laws to protect staff from prosecution of any sort civil or criminal. If Council wished it could make resolutions to amend the subordinate Local Law to protect the employee from civil prosecution by funding the employee’s defence in court and paying any fines. Cooloola Shire Council has no legal mechanism at its disposal to protect its employees from a Criminal prosecution under the Crimes Act or the Criminal Code and it would not be able to collectively serve the imprisonment for 3 years. Cooloola Shire Council Staff should not be placed in this jeopardy.

16. As the Legislative hierarchy in Australia commenced with the Commonwealth Constitution, to Commonwealth Legislation, to State Legislation, to Local Laws to Subordinate Legislation, Cooloola Shire Legislation can never hope to have precedence over the State Law, Cooloola Shire Council has a duty to protect its staff from prosecution.

17. Moule v Cambooya Shire Council and Anor [2004] QSC 50
LOCAL GOVERNMENT - Powers, functions and duties of councils generally - Powers over advertising signs and hoardings - Extent of power - Whether council had power to remove election signs exhibited on land under its control. Justice Fryberg
In my judgment, insofar as it applies to roads, s 17(1)(c) of Local Law No 8 is not rendered ineffective by s 854AA of the Local Government Act.
Justice Fryberg refused to look at the prohibition in a general, due to time consideration and the impending election of 2004 to look at s 854AA as it was an application for a declaration, and all the signs had been placed on public roads under the control of the Council.
Justice Fryberg found that the Council had a common law right as do the property owners of erecting or removing signs on property under their control.

18. Freedom of Speech and Political Rights are defined in many diverse documents, such as Australian Journal of Human Rights by Jeremy Webber*
“There are many ways in which rights might plausibly be implied. The ones that have attained the most currency, however, are founded on constitutional provisions that establish democratic structures of government. The argument is that democratic institutions cannot operate without free political debate. Some protection of freedom of speech must therefore be implied.
As mentioned above, this mechanism involves the determination that certain rights are implicit in the Constitution. Commonly, the rights are founded upon constitutional terms that establish democratic institutions (from which rights to political free speech are derived) or establish the courts (from which norms to protect judicial independence are derived). This is certainly the case in Australia, where the High Court has recognised a right of free political expression, working off the provisions establishing representative government in the Australian Constitution (notably ss 7 and 24, which state that members of the Senate and House of Representatives are to be ‘directly chosen by the people’). In the first of these cases, Brennan J (as he then was) summarised the essential argument (Nationwide News at 48-49):
‘… where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of that form of government. Once it is recognised that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains.’
This right was used to strike down laws that prohibited criticism of members of the Industrial Relations Commission and that limited television advertising in elections (Nationwide News Pty Ltd v Wills; Australian Capital Television Pty Ltd v Commonwealth). It also prompted the High Court to revise the law of defamation insofar as it applies to criticism of public officials (Theophanous v Herald & Weekly; Lange v Australia Broadcasting Corporation).
Other rights too might be implied from the Constitution. In McGinty v Western Australia, the Court considered whether the Western Australian Constitution required rough equality in the determination of electoral boundaries (so that each person’s vote would be of approximately equal value). The Court refused to find such a requirement. The High Court has declined to hold that a general right of equality can be derived from the Federal Constitution (Leeth v Commonwealth; Kruger v Commonwealth). But other principles with strong rights implications have been implied. In both Australia and Canada, the courts have developed constitutional guarantees of the independence of the judiciary, from which additional limitations have been derived: in Canada, judicial review of the jurisdiction of administrative tribunals has been constitutionalised on this basis; in Australia, the principle of the separation of powers has been used to strike down a law designed to keep a named offender in preventative detention beyond the end of his original sentence.”
*Webber J ‘Beyond regret: Mabo’s implications for Australian constitutionalism’ in D Ivison, PPatton and W Sanders (eds) Political theory and the rights of indigenous peoples Cambridge University Press, Cambridge 2000 pp 60-88.

19. In High Court decisions such as Theophanous v Herald and Weekly Times Limited [1994] HCA 46; (1994) 182 CLR 104; (1994) 124 ALR 1 (1994) Aust Torts Reports 81-297 (12 October 1994, the High Court acknowledges the Constitution rights of the people to free political expression. In Theophanous many other earlier cases such as the Australian Capital Television case are quoted. There are no shortage of examples but please read the quotes from this case below as samples:-

“In the context of those dramatic changes since 1901, there is manifest wisdom in Inglis Clark’s instruction that, in its application to contemporary conditions and exigencies, the Constitution must be treated as “a living force” and not as “a declaration of the will and intentions of men long since dead”. In following that instruction in the present case, the Court must take full account of contemporary social and political circumstances and perceptions in determining whether an unqualified application of State defamation laws to political communication and discussion is consistent with the constitutional implication of freedom. ”
“The full answer to it is, however, that it is now well settled that, in the application of constitutional guarantees or immunities, one must look to substance rather than form. When that is done, it is apparent that potential civil liability in damages and costs is likely to represent a much more effective curtailment of the freedom of political communication and discussion than the possibility of conviction of most of the many criminal offences which are punishable by a pecuniary penalty((179) See, e.g., City of Chicago v. Tribune Co. (1923) 139 NE 86.).”
“To a significant extent, the law of defamation in our various State jurisdictions represents the adjustment, by the State Parliament or by the common law, of the competing demands of freedom of speech on the one hand and protection of individual reputation on the other. That adjustment cannot, however, override the operation or effect of the Constitution’s implication of freedom of political communication and discussion to which, as has been seen, State laws and legislative powers are subjected. Nor can the approach be adopted by this Court that the common law’s or a State Parliament’s adjustment of the competing claims of free speech and private reputation should be simply accepted as dispensing with a full and proper consideration of the question whether the curtailment of political communication and discussion effected by a State’s defamation laws is consistent with the constitutional implication. For one thing, that approach would represent an abnegation of the Court’s constitutional function and duty. For another, the common law’s or a State Parliament’s adjustment of the competing claims of general free speech on the one hand and the need to protect reputation on the other will inevitably have been made without regard to the Constitution’s specific implication of the freedom of one particular category of communication and speech.”
“As Duff CJ and Davis J commented in Re Alberta Legislation ((189) (1938) SCR 100 at 133; (1938) 2 DLR 81 at 107.):
“The statute contemplates a Parliament working under the
influence of public opinion and public discussion. There
can be no controversy that such institutions derive their
efficacy from the free public discussion of affairs, from
criticism and answer and counter-criticism, from attack upon
policy and administration and defence and counter-attack;
from the freest and fullest analysis and examination from
every point of view of political proposals. This is
signally true in respect of the discharge by Ministers of
the Crown of their responsibility to Parliament, by members
of Parliament of their duty to the electors, and by the
electors themselves of their responsibilities in the
election of their representatives.”
“Clearly, the freedom of the citizen to examine, discuss and criticise the suitability for office of the elected members of the Parliament (or candidates for such election((192) See e.g., Monitor Patriot Co. v. Roy (1971) 401 US 265 at 271; Harte-Hanks Communications v. Connaughton (1989) 491 US 657 at 686-687; Coleman v. MacLennan (1908) 98 P 281 at 286.)) and the manner in which they discharge their functions and duties as such lies at the very heart of the freedom which the implication protects. Such examination, discussion and criticism would be all but pointless if the ordinary citizen were effectively precluded from making any statements or comments which cause injury to the reputation of a particular member or candidate.
Be that as it may, the answer to this third line of argument seems to me to be that a risk that some may be deterred from seeking public office is a comparatively small price to pay for the freedom of the citizen to engage fully in the political communications and discussions which are an incident of representative government without fear of crushing financial consequences.”
“32. At the end of the day, it appears to me to be plain that the serious curtailment of the freedom of political communication and discussion which is involved in an unqualified application of State defamation laws to render the citizen liable in damages for the making of statements about the official conduct or suitability of a member of the Parliament or other holder of high public office in the service of the Commonwealth (such as a member of this Court) cannot be justified in the public interest in the narrow sense explained above. It follows that the unqualified application of those laws to impose such liability is inconsistent with the implication and precluded by the Constitution.”
“Australian Capital Television Pty. Ltd. v. The Commonwealth (1992) 177 CLR at 191-195.). Sections 7 and 24, and the other provisions of the Constitution, do not guarantee free speech but provide for representative government. The only necessary or obvious implication, if indeed it be a matter of implication at all, is that there must be freedom of communication to the extent that it is a requirement of representative government. The legislative powers of the Commonwealth under s.51 of the Constitution are subject to the Constitution and hence subject to ss.7 and 24. No doubt ss.7 and 24 not only inhibit Commonwealth legislative power but also prevail over any inconsistent State law. If a State legislature were to enact legislation which interfered with the requirements of s.7 or s.24, the legislation would be invalid either for simple inconsistency with the Constitution, or as an interference with Commonwealth governmental authority((210) See Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 81.) or as beyond the power of the State legislature to legislate for the peace, order and good government of the State - perhaps for all three reasons. It is unnecessary to pursue that aspect of the matter further.”

“8. The first step is to say that the Constitution contains a guarantee of freedom of communication which is the equivalent of the First Amendment guarantee of freedom of speech. It is not, of course, express like the First Amendment guarantee, but is said to be implied by the requirement of representative government which is contained in the Australian
Constitution.”
” The defendants are correct in contending that in Australian Capital Television a majority of this Court held that the institution of representative government is an inherent part of the Constitution, that freedom to discuss the government of the Commonwealth is an indispensable condition of representative government and that the freedom of discussion extends to all levels of government in Australia.”

20. The residents of Cooloola Shire know they have a right to place an election sign on their own property. Bullying and intimidation are illegal in law and have only prevailed in the past due to a partnership between a Newspaper and a Mayor. The introduction of free integrity into this coming election will finish the fear tactics for the future.