The Amusement Parks Act 1990 (NT) is described in its long title as “an Act to provide for the regulation of the use of amusement parks in the interests of the safety and enjoyment of the public.”
The Act authorises local councils to make by-laws: “(a) which are necessary or convenient for carrying out or giving effect to this Act.” The Act goes on to provide that, “without affecting the generality of the power conferred by paragraph (a)”, local councils may make by-laws: “(b) controlling the operation of mechanical rides in amusement parks; (c) prescribing noise control standards to be observed in amusement parks; and (d) regulating the nature and quality of mechanical rides operated in amusement parks.”
The Act also provides that such by-laws “shall have effect as if they were enacted in this Act” and that a breach of a by-law by an amusement park is a ground on which a local council may revoke its approval for the operation of the amusement park. “Dizzy Land” is a big amusement park located in Dullsville in the Shire of Placid Plains in the Northern Territory. It opened in 2000 after the Humpty Don’t Shire Council granted approval for it to operate as an amusement park between the hours of 12.00 noon and 12.00 midnight each day of the week. Among its many attractions, Dizzy Land boasts that it has the longest and “scariest” roller-coaster ride in the Southern Hemisphere.
Residents of Dullsville, who live in the vicinity of Dizzy Land, complain to the Humpty Don’t Shire Council about the noise emanating from Dizzy Land, especially at night. The Council is also aware of accidents that have occurred in other amusement parks in Australia. The Council proposes to make by-laws to combat these problems.
After complying with the prescribed notification and consultation requirements, in the course of which the proprietor of Dizzy Land was given a full opportunity to
comment on the Council’s proposal, the Council makes the following by-laws (which are applicable to all amusement parks within the Shire of Humpty Don’t):
“1. All machinery used in the operation of mechanical rides shall be manufactured in Australia in accordance with the highest standards of durability, reliability and safety. 2. No mechanical ride shall, at any time, be operated in such a manner as to terrify, alarm or excite any user thereof. 3. The volume of noise emanating from an amusement park shall not, in the opinion of the Noise Control Officer of the Council and having regard to the preservation of the value of properties in the vicinity of such park, be excessive.”
Dizzy Land is alleged by the Humpty Don’t Shire Council to be in breach of all 3 bylaws. Advise the proprietor of Dizzy Land regarding the validity or invalidity of the by-laws.
QUESTION Craig, a noted British author and journalist, is in Australia on a 3 year cultural exchange programme during which he is engaged in writing and lecturing for and on behalf of his sponsors. He planned to visit Bali and other islands in Indonesia and booked an extravagant tour at his own expense with a travel agency in Darwin. He intended, while in Bali, to investigate local attitudes towards global warming and long-term lack of employment projects. He promised his sponsors an in-depth article on the results of his investigation. Craig’s departure for Bali was delayed by protracted industrial action by employees of fuel companies who (inter alia) supplied fuel to all airlines operating from Darwin airport which grounded all aircraft at Darwin airport. During the delay the travel agency with which he had booked his tour collapsed and Craig neither got his tour nor any refund.
Craig subsequently lodged a claim with the Tourists’ Compensation Board, a NT statutory tribunal empowered to adjudicate claims against a fund contributed to by the travel industry. Under the relevant legislation, a claim may be made by any person resident in Australia in respect of a holiday, booked with a travel agency in NT, which the Board is satisfied was frustrated by a cause other than a dispute in the airline industry, and the Board may determine such a claim in such a manner as it thinks fit. The legislation further provides that a determination of the Board shall be final and conclusive and shall not be reviewed on any ground in any legal proceedings whatsoever. The Board makes a determination rejecting Craig’s claim. Craig requests the reasons for the Board’s determination. The Chairperson of the Board telephones Craig stating: “The view of the Board was that it did not have jurisdiction to determine your claim. Furthermore, even if the Board did have jurisdiction in this case, it was
of the view that your claim should be rejected because it believed that tourism within Australia should be encouraged and, accordingly, that compensation should only be paid in respect of frustrated holidays that were to be taken within Australia.”
A transcript is made of the Board’s proceedings and determination.
(i) Craig wishes to seek judicial review of the Board’s determination on the grounds of jurisdictional error. Advise him. (5 marks)
(ii) Would your advice be any different if, instead of being provided separately and informally, the Board’s reasons had been provided along with the Notice of Determination rejecting Craig’s claim, which stated that those reasons were to be regarded as a formal part of the Board’s Determination. (2.5 marks)
(iii) Would your advice be any different if instead of determinations under the relevant legislation being made by the Tourists’ Compensation Board, they were made by the Local Court of the Northern Territory
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