The last three years of the global pandemic produced incredible examples of our communities pulling together. At the same time, we have also seen a huge rise in people who believe the rules do not apply to them. This is of particular concern to councils, as it is often the council’s rules that people are most willing to ignore.

From ensuring backyard offices are compliant to registering pandemic puppies and ensuring public health measures are followed, councils have a key role in regulating our communities. As Victoria moves beyond the pandemic in an environment of higher density development and more shared spaces, the opportunity for people’s activities and behaviours to come into conflict will only increase the council’s role in law enforcement.

Local councils are responsible for both proactive and reactive enforcement across a variety of laws which are designed to protect the wellbeing of the municipal community across a diverse range of subjects. A council’s enforcement responsibilities reflect its unique role in the governance of its municipal district and its ability to reflect the particular concerns and requirements of its local area.

Overview of responsibilities

A council has enforcement responsibilities under 18 separate Acts, as well as its own local laws. The specific nature of its enforcement duties and responsibilities depends on the terms of the relevant Act. In some cases, councils are called on to supplement the Police and other enforcement agencies, but in others, councils are the primary body responsible for enforcement.

However, in all cases where a council has a compliance or enforcement responsibility, it has an obligation to fulfil its responsibilities in a manner consistent with the objectives of the relevant Act. It gives effect to the overarching governance principles set out in s 9 of the Local Government Act 2020.

This can give rise to internal tensions for councils and their compliance and enforcement officers on when and how to exercise powers, which can be difficult to manage in an environment of competing interests.

Most Acts confer a series of powers or discretions on a council which are capable of being exercised and which – when exercised – evidence the performance of an enforcement function. These provisions enable, rather than compel, a council to do certain things, such as seize and impound a dog at large, the doing of which will evidence the fulfilment of its enforcement role. Contrast this with duties, such as the duty to register a dog when the preconditions to registration are met, where the council has no discretion.

In each case, the council is faced with the question of whether, in a particular circumstance, it is subject to duties (which it must perform) or has conferred on its functions or powers (in respect of which it has discretion in performing or exercising).

Factors to consider

In determining whether the council has a duty, Courts have emphasised that a number of factors will be analysed to determine whether, in the circumstances of a particular case, a public authority is under a duty to take positive action (by exercising a legislative power available to it). Foremost among the factors are:

• what the public authority knew or ought to have known of the risk or hazard that gave rise to the injury, loss or damage;
• the salient features of the relationship between the public authority and the claimant, such as the claimant’s vulnerability; and
• whether the public authority had such a significant and special measure of control over the safety of persons or property as to effectively oblige it to act.

These are the kinds of matters councils should be considering when deciding whether and how it will exercise its enforcement functions.

Public safety is also central to this analysis. The foundation of an enforcement function is, after all, public safety. Because of this public safety responsibility, it is our opinion that any enforcement function conferred by an Act creates a corresponding positive obligation to consider exercising it, at the very least. However, the exercise of a council’s enforcement powers has the inevitable consequence that it will impinge on an individual’s rights and liberties.

It follows that any enforcement action must be undertaken in accordance with the law and be justified in the particular circumstances. In balancing the rights of a person against a council’s duty to enforce the law, the council must ensure that enforcement action is taken impartially, where reasonable prospects of success exist and only where that action is in the public interest.

When exercising its enforcement functions, councils must comply with the same legal and ethical obligations as any other law enforcement agency. The law makes no distinction in the requirements to properly conduct the prosecution of littering or of murder.

Where a council fails to discharge its compliance and enforcement duties and obligations in a proper manner, it exposes itself to the risk of:

• significant financial and reputational costs in defending itself against allegations that it has acted improperly in its capacity as an enforcement agency;
• legal liability in civil proceedings taken against it;
• being unsuccessful in any enforcement proceedings that it decides to initiate; and
• criticism by external oversight bodies, such as the Victorian Ombudsman.

Using best practice

With all of this in mind, a council can undertake two key projects to ensure that it is exercising its enforcement responsibilities according to best practice by doing at least the following:

• Establish clear, transparent and useable guidelines and decision-making policies: Such guidelines and policies assist a council in ensuring that the principles of natural justice, procedural fairness and transparency are applied and observed in all of the council’s enforcement activities. It also gives a council’s authorised officers a process to follow which assists in ensuring that they consider all relevant factors in their exercise of enforcement functions.
• Train the council’s staff in their functions and powers: This ensures that a council’s staff is aware of and familiar with the scope and extent of their powers, functions and duties. It is particularly important in areas of operation where staff may not have an enforcement background (such as environmental health officers) or where enforcement is a small or ancillary part of their larger role (such as statutory planners).

If you have further questions about the council’s role in law enforcement, please contact Maddocks Partner Kate Oliver, from our Compliance & Enforcement Team.