Last night the Corporate and Community Services committee of the Alice Springs Town Council (the ASTC) — the local governing authority for the second largest town in the Northern Territory — met to decide the future of its controversial by-laws for the management of public spaces in the town.

As Chris Graham noted in Crikey a year ago, the by-laws have been a public relations disaster for the ASTC:

“… it’s official. Alice Springs – and the Northern Territory generally – has every right to be seen as a racist backwater … [the by-laws were likely to] promote the reputation of Alice Springs as an uncaring and inhumane community”.

Two members of the ASTC’s committee were absent on leave from last night’s meeting and those present unanimously approved the by-laws. Final approval is expected to be a formality at the next full meeting of the ASTC in two weeks.

When they were originally released for public comment a year ago the by-laws attracted nearly 90 submissions, the majority of which were opposed to their more contentious provisions.

Typical of the more considered responses was that from the Law Society of the NT, which noted the likely negative effects on the many people from remote Aboriginal communities that travel to Alice Springs to access services only available here:

“Alice Springs is frequently visited by Aboriginal people from around central Australia who often have nowhere to stay … The Society understands that this creates a number of issues for the Council and the other residents of Alice Springs. However, we believe that penalties alone are not a sensible way to address these issues and that a multipronged approach is essential. Sound social principles of care should underpin the Council’s response and properly resourced social services must be available.”

And this from Russel Goldflam, the Principal Legal Officer of the Alice Springs office of the NT Legal Aid Commission:

“Many of them [the by-Laws] smack of injustice and unfairness, and some infringe personal rights in an unreasonable way and to an unreasonable extent. The overall effect of the draft by-laws is to invest in Council officers powers and responsibilities which would bring them on a regular basis into hostile and potential violent confrontation with members of our community who engage in anti-social behaviour. That is a job of police. It is not the job of Council officers.”

To its credit, the ASTC removed some of the more contentious measures before it approved its preferred version on November 30 2009. Following that approval the by-laws were sent to the NT Local Government Minister for the usually uncontroversial steps of notification in the Government Gazette and tabling in the NT Parliament.

It appears that many of the concerns expressed to council by the community of Alice Springs were shared by the NT government. Local government minister Malarndirri McCarthy sought advice from the NT’s senior law officer, the NT Solicitor General, Michael Grant QC.

You don’t need to read too carefully between the lines of Grant’s advice to see that he also had serious concerns with the ASTC’s proposals.

Crikey has obtained a copy of Grant’s advice [PDF]. Grant notes , as a preliminary matter, that council had failed to comply with a fundamental procedural requirement and that the minister could not proceed further until that error was corrected by the ASTC.

In relation to the substantive matters in the by-laws Grant notes numerous concerns with individual by-laws that “arguably operate to shift the onus of proof and/or infringe personal rights in an unreasonable way or to an unreasonable extent”; that are arguably inconsistent with other NT laws; that “purport to proscribe conduct that is already proscribed” elsewhere or that overlap with or duplicate other NT legislation.

Grant’s advice pays particular attention to the need to ensure that subordinate legislation should be consistent with good public policy principles. With a mind to possible — perhaps likely — future legal challenges to the validity of the ASTC’s by-laws, Grant’s advice contains the veiled warning that:

“What must be recognised, however, is that a court would be looking for any ground upon which to impugn the validity of a by-law which purported to create a regulatory offence other than in circumstances contemplated by the traditional public policy principles.”

Grant makes the following observation in regard to a number of individual by-laws or provisions:

“… the question whether a particular by-law complies with the requirements of … the Local Government Act might properly be seen as a matter for council, as it is the council that will be called upon to defend the By-law in the event of a [legal] challenge.”

On June 28 2010 minister McCarthy wrote [PDF] to the ASTC, referring to Grant’s advice and recommending the removal of six of the by-laws and of two sub-parts of the by-laws. Particular reference was made to the “regulatory offences” provisions contained in by-law 79, which in her view were inconsistent with the “usual protections of the criminal law”, noting that “Under principles of public policy, fairness and good governance, and because of duplication, I recommend removal of by-law 79.”

The ASTC isn’t required to follow the minister’s advice — merely to consider it. But somewhere between minister McCarthy’s letter and last night’s committee meeting the council determined that it could ignore the considered advice of the NT’s top legal officer and of the Minister for Local Government and just re-approve the by-laws passed at its meeting last November.

According to Craig Catchlove, the director of corporate and community services at the ASTC, the local office of the minister’s own department of local government gave the council assurances that it could ignore the advice of the Solicitor-General and its own minister proceed with the by-laws unchanged.

Earlier today Crikey sought clarification on this most unusual turn of events from McCarthy’s office and from the ASTC. As at Crikey’s deadline we had not received a response from either.

For a community response to the council’s impending approval of the by-laws Crikey contacted the Northern Territory Council of Social Service (NTCOSS). Jonathan Pilbrow, Central Australian Policy Officer for NTCOSS told Crikey that:

“NTCOSS is concerned that if the by-laws go through in their current form, it may lead to drawn-out legal challenges — which will be time-consuming and very costly, and would be a poor use of taxpayers’ money. While these by-laws are a significant improvement on the original draft by laws, the broad approach of many of these by-laws still involves an undue focus on punishment and moving people on and provide quite broad ranging powers to authorised officers. NTCOSS would prefer to see an approach which  encourages social inclusion and welcomes participation of all people in community life.”