The question of Council regulation of election signage has arisen before the Western Australian Supreme Court (the WA Court), with the WA Liberal Party challenging the ability of the City of Armadale to absolutely prohibit or to issue permits for temporary election signage. With elections at all levels of government in South Australia looming in the foreseeable future, it is worthwhile for councils to take note of some of the preliminary rulings of the case, as well as to revisit the South Australian legislation regarding temporary election signage.

The ongoing Supreme Court case in Western Australia

A recent interlocutory (and thus not final) hearing of the dispute between the WA Liberal party and the City of Armadale (Liberal Party of Australia (Western Australian Division) Inc v City of Armadale [2013] WASC 27) has demonstrated that Courts will readily accept that, in the lead-up to an election, the positive role played by temporary election signage as conduits for political speech outweighs the potential negative impact of such signage on local amenity.

Local Government legislation in Western Australia is not as prescriptive as South Australian legislation regarding temporary election signage and moveable signs in general. As such, the City of Armadale had absolutely prohibited election signage, even on private land. After this was challenged by the WA Liberal Party in advance of the 2013 WA State election, the City of Armadale retreated from its position of absolute prohibition and posed a scheme by which one sign per building frontage would be permitted. However signs greater than one square metre would require Council approval and there would be a prohibition on erecting signs more than 60 days before an election.

The WA Court has provisionally found that the scheme posed by the City of Armadale is still unlawful, as it constitutes ‘a significant fetter against political communications’ and that the ground of preserving amenity is not a suitable justification for such a fetter.

While the City of Armadale’s position still permitted people to express political views through signs, the WA Court found that ‘requiring people to jump through bureaucratic hoops’ is nevertheless a fetter. In support of this point, the WA Court referred to comments made by the South Australian Supreme Court in Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334, part of the high-profile ‘Rundle Mall preachers’ litigation. It is unclear whether the WA Court would decide the case the same way in light of the recent High Court decision of Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3, which overturned the decision of the South Australian Supreme Court.

While the WA Court indicated that a fetter could in some instances be justified, it found that in this case the requirements which the City of Armadale sought to impose were purely for the purposes of amenity and as such were not justified because:

‘[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 above statement could be considered to apply not only to State elections, but also Federal and Local Government elections.

South Australian legislation

The legislative framework for the control of moveable signs expressly exempts (at Sections 226(3)(c) and (ca) of the Local Government Act 1999 (SA) (the Act)) Federal, State and Local Government election signage from being subject to moveable sign permits. For Federal and State Government signage, the exemption operates from the date the writ or writs for the election are issued until the close of polls. For Local Government signage, the exemption lasts from the date four weeks before polling day until the close of polls. The only grounds in Section 227(1) of the Act upon which a Council may require a person to remove a temporary election sign during these exempt periods are that the sign restricts the use of a road or that the sign is a danger to public safety.

Not only are temporary election signs exempted from moveable sign permits during certain periods, they are also (subject to a size restriction) exempted from development approval and thus may freely be displayed on private property. Schedule 3 Clause 1(f) of the Development Regulations 2008 (SA) exempts Federal, State and Local Government election signage from the ambit of the Development Act 1993 (SA) where the total size of such signage does not exceed 2 square metres on any one building or site.

Take home message

In South Australia, Councils have very little latitude in restricting temporary election signage. Where such latitude does exist it is very limited. Councils should be aware that the judicial emphasis on freedom of political communication would make it very difficult to justify restrictions upon such signage in the lead-up to an election other than restrictions based on safety.