In Liberal Party of Australia (Western Australian Division) Inc v City of Armadale [2013] WASC 27 (the Liberal Party Case), the WA division of the Liberal party successfully applied for an interlocutory injunction against the City of Armadale restraining the City from removing any electoral signage erected or affixed to private properties. The City’s Local Planning Policy prohibited electoral signage in the locality of Armadale, even on privately owned land. At the hearing, the City sought a compromise, as opposed to a complete ban, on the following terms:

  1. the number of electoral signs would be limited to one sign per street frontage of every lot;
  2. the area of the sign would not exceed one square metre in area; and
  3. the signs were not to be erected more than 60 days prior to the election date.

The Court considered that the above regulatory controls were still a significant fetter against political communications in the lead up to the State election in circumstances where the only justification was the preservation of local amenity.

The position was neatly summarised by Justice Martin as follows:

“Australia as a nation and Western Australia as a State, will forever place a high value upon the freedom to engage in political communications. Entities or organisations that perhaps unwittingly seek to fetter the freedom of political communication can expect to be called to account to explain a proper rationale for fetters they seek to impose against political communications, even if their measures only fetter in part, by requiring people to jump through bureaucratic hoops such as to obtain permissions or the like, in order to engage. Requiring a permission is a fetter. It may slow down an electoral communication. A fetter or fetlock inhibiting political communications under electoral signage properly made in a liberal democracy during an electoral process leading to a State election needs to be properly justified by considerations weightier than the mere temporary look of a local neighbourhood during an election campaign.”

The Court concluded that the democratic process outweighed any concerns about amenity, at least for the duration of the looming election campaign. Perhaps, in light of this decision, the LPS Regulations have introduced a deemed provision in clause 61(1)(g) in Schedule 2 which has the effect of excluding all electoral/political signage from the requirement of planning approval in certain specified circumstances. Clause 61(1)(g) provides that development approval of a local government is not required for: “the temporary erection or installation of an advertisement if:

(i) the advertisement is erected or installed in connection with an election, referendum or other poll conducted under the Commonwealth Electoral Act 1918 (Cth), the Electoral Act 1907 or the Local Government Act 1995; and (ii) the primary purpose of the advertisement is for political communication in relation to the election, referendum or poll; and (iii) the advertisement is not erected or installed until the election, referendum or other poll is called and is removed no later than 48 hours after the election, referendum or other poll is conducted.”

This provision has effect in each and every operational local planning scheme and overrides any inconsistent provision in a local planning scheme (to the extent of any inconsistency): see 257B(3) of the Planning and Development Act 2005). A local government cannot vary or exclude the operation of clause 61(1)(g) and it cannot limit its operation by imposing more restrictive requirements such as limits on the size of the sign or a shorter duration to what is set out in cl 61(1)(g)(iii). The Consequences of the Deemed Provision It is clear from clause 61 that if a political party sought to leave political signage in place for a period longer than 48 hours after the election had been held, or sought to install such signage on a permanent basis, it would require planning approval to do so. The position is less clear for electoral signage placed on private land before a State election has been called. This is because, unlike Federal parliament where snap elections can be called before the parliamentary term has run its course,  Western Australia has fixed parliamentary terms with elections held every 4 years on the second Saturday of March (this year the second Saturday falls on 11 March 2017). So while the State election is only officially called on the first Wednesday of February (when the writs are issued), we know the election date 4 years in advance. In the Liberal Party Case, the electoral signs had been installed in December 2012 before the 2013 State election had been called. However, the election date had been fixed for 9 March 2013 and was less than 10 weeks away (the Court described this election date as “looming”).  

On the reasoning of Judge Ken Martin and applying the test first enunciated in by the High Court in Lang v Australian Broadcasting Corporation1, a scheme provision requiring prior planning approval for electoral signage erected on private land before the election has been called could well be held to be unconstitutional on the basis that it constitutes an unreasonable fetter of the implied freedom of political communication (particularly if the sign was erected within a couple of months of the date fixed for the election). For this reason, it may not be enough for a local government to simply defer to the deemed provision in clause 61(1)(g) of Schedule 2 of the LPS Regulations. Consideration must also be given to whether the election can be said to be imminent at the time the sign is installed.