legal speak

Submitted: Thursday, Jan 28, 2016 at 10:46
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I'm trying to get my head around a paragraph in the WA caravan and camping act. I think I know what it means but I thought I would ask the opinion of others on this forum who are more wise in the ways of legal speak then me.
This is the paragraph, it refers to Part 2 of the act.

"If there is a conflict or inconsistency between this Part and any other written law other than a local law, the other written law prevails to the extent of the conflict or inconsistency."

I hope I don't bore everyone with this subject.
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Reply By: Les - PK Ranger - Thursday, Jan 28, 2016 at 11:02

Thursday, Jan 28, 2016 at 11:02
If the section of Part 2 of the Act says you can camp by any waterway for example, and a local council or other protection type body says you cant, then that latter law prevails.

Disclaimer - I am not a lawyer, nor do I play one in a TV series.
AnswerID: 595537

Follow Up By: vk1dx - Thursday, Jan 28, 2016 at 14:06

Thursday, Jan 28, 2016 at 14:06
Nope. The "higher authority" ie WA Government or the NPWS prevails. The local council rule is not worth the paper it is written on, despite it being put up later. If your "other protection type body" is WA Government or higher based then yes I would agree.

NPWS says you can camp. The local council can't stop you.

It would be interesting if the "local" authority was the WA Police local office. I think that in this case discretion is the better part of valour and I would move on.

Have fun

Phil
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Reply By: Member - ACD 1 - Thursday, Jan 28, 2016 at 11:05

Thursday, Jan 28, 2016 at 11:05
Hi Cruznoz

I interpret it this way:

- The WA Caravan and Camping Act (WACCA) doesn't have the power to override any other act or local Authority.
- if the WACCA says you can camp in one area but the local council has bylaws which say you can't, then you aren't allowed to use the WACCA to defend your right to stay there

EDIT

Cruznoz

I have had another look and I can now see where I got it wrong. I missed a crucial 2 words - "other than". I should have cottoned on straight away - a "local law" (or by-law) is lower in the hierarchy of legislation, or in other words is less important. The intent of the response is still the same, but the use of Local Govenment is incorrect.

If WACCA states you can camp in certain place and another authority has a No Trespass sign erected (conflict or inconsistency) then you can't camp there (Trespass laws prevail).

Hypothetical Example - WACCA might say you can camp on the beach north of Two Rocks. You plan to camp on the beach within the Lancelin Training Area. The Commonwealth of Australia (Defence Dept) has signs up saying No Trespassing. You can't camp there.

I haven't changed the original post so that 'hysterical integrity' of the forum can be maintained LOL

Cheers

Anthony


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Follow Up By: Cruznoz - Friday, Jan 29, 2016 at 10:18

Friday, Jan 29, 2016 at 10:18
Anthony,
Your Hypothetical about the Lancelin training area is a good one. The Dept of defence is a government department and any no trespass sign it puts up would fall under "any other written law". Thanks for your comment
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Reply By: Cruznoz - Thursday, Jan 28, 2016 at 11:17

Thursday, Jan 28, 2016 at 11:17
Thanks Les and Anthony. You both seem to have similar interpretations. However, I read it differently. The paragraph says that if there is conflict with "any other written law other then a local law the other written law prevails". I read this to mean that "any other written law" is a law in, say some other Legislation. But a local law is something else and doesn't prevail over the Act. If that is the case then if a local council put up a no camping sign at a rest area then the Caravan and camping act would prevail over it. Am I reading this wrong?
AnswerID: 595540

Follow Up By: TomH - Thursday, Jan 28, 2016 at 11:20

Thursday, Jan 28, 2016 at 11:20
I would agree but for an honest??? opinion and $100 a lawyer will translate "Their opinion" ROFL
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Follow Up By: Neil & Pauline - Thursday, Jan 28, 2016 at 11:24

Thursday, Jan 28, 2016 at 11:24
Or pay $2m and go to the high court. The judges make our laws now days.

Neil
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Follow Up By: terryt - Thursday, Jan 28, 2016 at 11:51

Thursday, Jan 28, 2016 at 11:51
I agree with Cruznoz. Seems logical. A council bylaw can't override state or federal legislation. ie State law says drive at 16. council can't say 14 is ok in our area.
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Reply By: Ron N - Thursday, Jan 28, 2016 at 12:47

Thursday, Jan 28, 2016 at 12:47
Cruznoz - Well, it's obvious you need to study up on the Interpretation Act, 1984! LOL

Interpretation Act 1984 - Western Australian Current Acts

I believe you have the correct interpretation of the Caravan & Camping legislation.
It appears the C&C Act does not have the power to over-ride another Federal or State law where there is conflict with that Federal or State law - but it does over-ride any local law.

As I understand it, local laws are "subsidiary laws" and therefore more limited in their application than Federal and State Laws.
The Caravan & Camping Act is a State law.

From a W.A. Local Govt website ...

"Local laws are defined as subsidiary legislation which are capable of disallowance by either House of Parliament under section 42 of the Interpretation Act 1984.
Disallowance is the device by which the Parliament maintains control of the power to make subsidiary legislation that it has delegated, by primary legislation (Acts of Parliament), to local governments, State Departments and other agencies of Government.
In the case of local governments, this power is granted by the Local Government Act 1995 and other particular Acts such as the Health Act 1911 and the Dog Act 1976.

Other accountability mechanisms impacting on local laws are:

1. The local community, which under the Act is required to be consulted on proposed local laws
2. The Minister for Local Government, who is charged with administering the Department of Local Government which monitors local law making
3. The power of the Minister to request the Governor to make local laws that repeal or amend local laws or prevent certain local laws being made
4. The courts, which can pronounce on the validity of local laws."

Naturally, I have to include the following legal disclaimer ...

"The post above is not a qualified legal opinion, and the poster is not a qualified lawyer. This posters opinion is worth precisely the amount you paid for it. This posters opinion may be at conflict with professional legal opinion and other forum members opinions. This could make conflicting opinions arise, which you will have to deal with according to how you see fit. This disclaimer ensures that no legal action can be initiated against this poster, in the event of losses, either physical, financial, emotional or otherwise, being incurred as a result of the original poster acting upon this posters opinion."

I think that should cover it - but I'll have to check with my lawyer to see if I've missed anything. [;-)

Cheers, Ron.
AnswerID: 595543

Follow Up By: Cruznoz - Friday, Jan 29, 2016 at 10:23

Friday, Jan 29, 2016 at 10:23
Thanks for your input Ron. And I think you covered your arse nicely with the disclaimer. LOL
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Reply By: Member - Gnomey - Thursday, Jan 28, 2016 at 12:47

Thursday, Jan 28, 2016 at 12:47
The Part of the Act prevails over a "local law" whatever that is.( Notice the exception 'other than a local law') Everything else in "written law" eg Commonwealth or other state legislation prevails over the Act but only to the extent of any conflict or inconsistency.

Not drafted by the sharpest pencil in the box imnsho.

Cheers
Mark
AnswerID: 595544

Follow Up By: Cruznoz - Friday, Jan 29, 2016 at 10:27

Friday, Jan 29, 2016 at 10:27
Hi Mark,
The act is currently being overhauled. Maybe they will look at changing this section too.
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Reply By: Gary T7 - Thursday, Jan 28, 2016 at 18:35

Thursday, Jan 28, 2016 at 18:35
I think the operative words are "other than a local law" So a local law would still prevail.as it does not exclude this law only other than a local law.
AnswerID: 595557

Follow Up By: vk1dx - Friday, Jan 29, 2016 at 14:58

Friday, Jan 29, 2016 at 14:58
Wrong. The higher authority (eg WA Gov or NPWS etc, police) always prevails over the poor old council.
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Reply By: skulldug - Thursday, Jan 28, 2016 at 18:55

Thursday, Jan 28, 2016 at 18:55
To me it means don't camp where your not welcome no matter which authority is saying it.
AnswerID: 595558

Reply By: Idler Chris - Thursday, Jan 28, 2016 at 20:20

Thursday, Jan 28, 2016 at 20:20
A barney is a barney.Life is to short to get involved in barneys. This is a big country, even if I am right I am not having a barney, so I will move on. I do not let other people spoil my day.
What other people think of me is none of my business.
Do unto others what you would have them do unto you.

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AnswerID: 595561

Follow Up By: Cruznoz - Friday, Jan 29, 2016 at 10:34

Friday, Jan 29, 2016 at 10:34
Skulldod and Idler Chris,

I agree with you both. I have no intention of challenging the next Ranger I see about any no camping signs his council has put up. I was just interested in weather I was reading that paragraph correctly or not.
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Reply By: garrycol - Friday, Jan 29, 2016 at 11:40

Friday, Jan 29, 2016 at 11:40
There is a hierarchy of laws in Australia where there is a conflict.

Federal Law overrides State Law

State Law overrides Local Council Law

Council Law overrides laws set up by business or anything other local.

I used to work in project work at the Federal level and wherever possible we complied with State and Local rules and we were obliged to where there was no Federal Law on the subject - but where Federal Laws were in place these applied.

So if WA law says you can camp somewhere, Council Law cannot override but if in some aspect WA law is silent then local laws will apply. Eg WA say a area is open for camping and says nothing else - Council laws will dictate how the cam area is set up - parking, toilets etc.

AnswerID: 595587

Follow Up By: Cruznoz - Friday, Jan 29, 2016 at 11:46

Friday, Jan 29, 2016 at 11:46
Thanks garrycol, what you've just said lines up with what I thought the paragraph in the act read.
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Reply By: Nutta - Saturday, Jan 30, 2016 at 09:18

Saturday, Jan 30, 2016 at 09:18
I dont know much about laws but on the spit on the Gold Coast there are no camping council signs everywhere but the land is owned by Maritime, people are camped up everywhere and the council cant do a thing about it.
AnswerID: 595641

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