FEDERAL COURT OF AUSTRALIA
Kerrison v Melbourne City Council [2014] FCAFC 130
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | |
| VID 1105 of 2013 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
| Appellant |
| AND: | First Respondent CHIEF COMMISSIONER OF POLICE Second Respondent STATE OF VICTORIA Third Respondent ATTORNEY GENERAL FOR THE STATE OF VICTORIA Fourth Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. The appellant has leave to rely on the further amended notice of appeal, in the form filed on 17 June 2014.
2. Leave is refused to the appellant to add proposed grounds 6A and 8A to the further amended notice of appeal.
3. The appeal is dismissed.
4. The appellant pay the respondents’ costs of and incidental to the appeal.
5. Any application to vary or set aside Order 4 is to be made on or before 10 October 2014, supported by written submissions limited to 3 pages.
6. Any responding submissions are to be filed and served by 17 October 2014, limited to 3 pages for each party.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| VICTORIA DISTRICT REGISTRY | |
| GENERAL GENERAL DIVISION |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
| BETWEEN: | SARA LOUISE KERRISON appellant |
| AND: | MELBOURNE CITY COUNCIL First Respondent CHIEF COMMISSIONER OF POLICE Second Respondent STATE OF VICTORIA Third Respondent ATTORNEY GENERAL FOR THE STATE OF VICTORIA Fourth Respondent |
| JUDGE: | FLICK, JAGOT & MORTIMER JJ |
| DATE: | 3 october 2014 |
| PLACE: | melbourne |
REASONS FOR JUDGMENT
THE COURT
1. THE APPEAL
1 This appeal concerns a proceeding commenced in November 2011 by Mr James Muldoon contending that certain actions of the City of Melbourne (the Council) against members of the Occupy Melbourne protest group were unlawful. In carrying out these actions the Council was assisted by Victoria Police, which explains the presence of the Chief Commissioner and the State of Victoria (the State) as respondents. The proceeding was commenced as a representative proceeding. On 21 March 2012, the first day of the trial, the present appellant, Ms Sara Kerrison, was joined as an applicant. Mr Muldoon withdrew from the appeal on 17 April 2014, leaving Ms Kerrison as the sole appellant.
2 On 1 October 2013 the primary judge ordered that the proceeding not continue as a representative proceeding and the application otherwise be dismissed (Muldoon v Melbourne City Council (2013) 217 FCR 450; [2013] FCA 994).
3 By a proposed further amended notice of appeal filed on 17 June 2014 the appellant contended that the primary judge erred on 10 grounds (with the eleventh ground relating to costs and consequential on the appellant succeeding with respect to one or other of the 10 substantive grounds). Written and oral argument proceeded on the basis of this further amended notice of appeal, and the Court indicated it would determine in its reasons for judgment whether to grant leave to the appellant to rely on that notice of appeal. Leave to rely on the further amended notice of appeal should be granted. The further amended notice of appeal was served during the pre-hearing management of the case (see further below). The respondents were able to deal with the proposed amendments in their written and oral submissions and did not oppose the appellant’s application for leave. The appeal was conducted by reference to the further amended notice of appeal. It would be inappropriate for leave to be refused in these circumstances.
4 We set out below a summary of the appellant’s grounds and a brief statement of our conclusions about each ground.
1.1 The constitutional issues
The provisions of:
(a) the Local Law on which the Council relied to serve protesters, including the appellant, with notices to comply and/or the statutory head of power under which the Local Law was made (s 111 of the Local Government Act 1989 (Vic), and
(b) the Regulations on which the Council relied to give oral directions to protesters, including the appellant, and /or the statutory head of power under which the Regulations were made (the Crown Land (Reserves) Act 1978 (Vic),
are constitutionally invalid because they impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution (grounds 1, 4(a) and 4(b)).
5 We conclude that the basis on which the enforcement provisions of the Local Law are said by the appellant to differ from the valid substantive prohibitions does not give rise to any separate and impermissible burden on the implied freedom.
1.2 The Charter issues
The Council’s:
(a) making of the same provisions of the Local Law,
(b) enforcement activities under the notices to comply served under the Local Law, and/or
(c) enforcement activities under the Regulations,
were unlawful under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) because those provisions are and those enforcement activities were incompatible with the human rights of freedom of expression, peaceable assembly and freedom of association in ss 15 and 16 of the Charter and were not demonstrably justified within the meaning of s 7(2) of the Charter or otherwise reasonably necessary (grounds 2, 3(a), 3(b) and 4(c)).
6 We conclude the making of the Local Law cannot be challenged under s 38(1) of the Charter. The challenge to the issuing of notices under the Local Law to persons other than the appellant is not determined in this appeal first because of the view we have taken about the correctness of the primary judge’s decision that the proceeding should not continue as a representative proceeding and second because the appellant should not be granted leave to challenge the primary judge’s finding that she did not have standing to bring such a challenge. We further conclude that the two enforcement activities under the Regulations involving Ms Kerrison were not carried out in a way which contravened s 38(1) of the Charter.
1.3 The notices issue
The three notices to comply under the Local Law served on the appellant are not notices within the meaning of the relevant provisions of the Local Law and were not validly issued (ground 5).
7 We conclude the notices were validly issued.
1.4 The representative proceeding issue
The proceedings should have been permitted to continue as a representative proceeding (ground 6).
8 We conclude the primary judge’s exercise of discretion under r 9.21 of the Federal Court Rules 2011 (Cth) to determine the proceeding should no longer continue as a representative proceeding is not affected by error. Given our finding, there is no occasion to reach a conclusion on the Council’s notice of contention about the primary judge’s decision under r 9.21.
1.5 The cl 4.6 notices issue
The 67 notices to comply issued to protesters other than the appellant in sole reliance on cl 4.6 of the Local Law should have been declared to be invalid on the same basis as notices issued to the appellant in reliance on cl 4.6 had been found by the primary judge to be invalid (ground 7).
9 We conclude the appellant cannot challenge these notices given this is not a representative proceeding and she has been found not to have standing to do so.
1.6 The cl 4.6 construction issue
The primary judge should not have construed cl 4.6 of the Local Law as including any goods that “may impinge upon the appearance of streets and public places” (ground 8).
10 We conclude that this issue does not properly arise on the appeal.
1.7 The sunset issue
The Regulations were not in force as they had been automatically revoked by the Subordinate Legislation Act 1962 (Vic) (ground 9).
11 This ground was abandoned during the appeal and will not be further considered.
1.8 The arrest issue
Section 458(1) of the Crimes Act 1958 (Cth) did not authorise the police to apprehend protesters in connection with the commission of an offence under s 224(8) of the Local Government Act (ground 10).
12 We conclude the appellant does not have standing to challenge the arrests of other protestors and the primary judge was correct to so find. The actions of the police officers were lawful in any event, and the appellant should not have leave to raise a new argument about the validity of ss 458(1) and 461 of the Crimes Act 1958 (Cth).
13 Before dealing with the grounds of appeal in more detail, it is convenient to set out the relevant facts about the Occupy Melbourne protest, the details of the statutory provisions in issue, and the reasoning of the primary judge which sets the context for the appeal.
2. THE OCCUPY MELBOURNE PROTEST
14 The primary judge’s findings about the Occupy Melbourne protest itself are not in dispute and are adopted for the purposes of the appeal, as recorded below. References in square brackets are to the reasons of the primary judge.
15 In November 2011 the Occupy Melbourne group occupied Treasury Gardens, and briefly, Gordon Reserve. In December 2011 the group occupied Flagstaff Gardens: [1].
16 The occupation was meant as a protest against economic inequality and the structures and operation of the present system of government. It is part of a worldwide movement which shares the same philosophy and method of protest: [2].
17 Occupy Melbourne was a protest against economic inequality that exists within Australian society and the world. It was also a protest against the existing structures and operation of government in Australia on the basis that they are overly influenced by large corporations and professional political parties, and that these organisations fail to represent the interests of ordinary citizens. Those who followed Occupy Melbourne believed that the Australian democratic processes are ineffective and need to be reformed. Occupy Melbourne intended to build a functional grassroots democratic form of governance in Australia: [28].
18 The primary mode of protest used by Occupy Melbourne was for protesters to maintain a continuous presence in public spaces. This mode of protest allowed the protesters to continually convey the political message to the public: [29].
19 The occupation of public space was part of the political message because it allowed the protesters to enact and demonstrate the alternative political and governmental structures the movement sought to promote for Australia. All decisions were made in public in a general assembly. Any person was entitled to attend and vote at the general assembly. It operated on a consensus decision-making model: [30].
20 In addition to the primary judge’s findings, the appellant emphasised on appeal, and we accept, that the Occupy movement and Occupy Melbourne utilised social media as a form of communication to distribute its messages and some content about the protests, and to facilitate communication with people who could not physically attend the protests.
3. THE STATUTORY PROVISIONS
3.1 Local Government Act
21 Section 111(1) of the Local Government Act 1989 (Vic) provides that:
A Council may make local laws for or with respect to any act, matter or thing in respect of which the Council has a function or power under this or any other Act.
22 In exercise of that power, in 2009, the Council made the Local Law, being the Melbourne City Council Activities Local Law 2009.
23 The Local Law applies to the Treasury Gardens and the Flagstaff Gardens.
24 Part 2 of the Local Law regulates behaviour in public places. The introduction to Part 2 states that:
This Part contains provisions which aim to protect the amenity of public places for all citizens by controlling behaviour in public places and by prohibiting persons from causing damage to public places or acting in a socially unacceptable manner.
25 Clause 2.11 is in these terms:
Unless in accordance with a permit, a person must not camp in or on any public place in a vehicle, tent, caravan or any type of temporary or provisional form of accommodation.
26 Part 4 of the Local Law regulates advertising and use of shopfronts and public places. The introduction to Part 4 states that:
This Part contains provisions which aim to enhance the appearance of streets and public places by controlling the placement of advertising signs in public places and on and between buildings and street art in, or within view from, a public place within the municipality and the placement of goods and the like in public places.
27 Clause 4.6 is in these terms:
Unless:
(a) in accordance with a permit; or
(b) to do so is specifically authorised by and in accordance with the Melbourne Planning Scheme or a planning permit issued under it,
a person must not place or erect a portable advertising sign or other thing in, on or over a public place or allow that to occur.
28 Part 5, dealing with street trading and other events, contains cl 5.4, as follows:
Unless in accordance with a permit, a person must not display or distribute to any person any handbill in or on a public place or allow that to occur.
29 Part 13 deals with permits and includes these provisions:
13.1 Where in this Local Law a person is prohibited from doing a thing “unless in accordance with a permit”, a person who does the thing which is prohibited to be done without first obtaining a permit from the Council under this Part is guilty of an offence.
13.2 The Council may grant a permit subject to such conditions as it thinks fit.
30 Part 14 concerns enforcement and includes these provisions:
Offences
14.1 A person who:
(a) fails to comply with this Local Law; or
(b) fails to comply with a condition of a permit; or
(c) fails to do anything directed to be done under this Local Law; or
(d) knowingly submits erroneous, inaccurate or misleading information in an application for a permit; or
(e) refuses or fails to obey directions of an authorised officer to leave a public place where in the opinion of that authorised officer the person has failed to comply or is failing to comply with this Local Law; or
(f) fails to comply with a sign erected by the Council,
is guilty of an offence.
Infringement notices
14.2 As an alternative to prosecution, an authorised officer may serve an infringement notice on a person who:
(a) has done one or more of the things described in clause 14.1; or
(b) is reasonably suspected of having done one or more of the things described in clause 14.1.
…
Notice to comply and directions
14.12 An authorised officer may either orally or in writing direct a person to leave a public place if in the opinion of the authorised officer the person is failing to comply or has failed to comply with this Local Law.
14.13 Either as an alternative or in addition to an infringement notice, an authorised officer may serve a Notice to Comply under this clause on a person who the authorised officer reasonably suspects to be in breach of this Local Law.
14.14 A Notice to Comply under clause 14.13 must be in writing and in a form approved by the Council.
14.15 A Notice to Comply under clause 14.13 may do one or more of the following things:
(a) direct the person to comply with the Local Law;
(b) direct the person to stop the conduct which constitutes the breach of the Local Law;
(c) direct the person to deliver up to the authorised officer or to some specified person or some specified location any item or property of the person which constitutes the breach of the Local Law;
(d) direct the person to remove or cause to be removed any item, goods, equipment or other thing that constitutes a breach of the Local Law;
(e) direct the person to leave an area within the time specified in the notice that constitutes a breach of the Local Law.
14.16 A Notice to Comply under clause 14.13 must specify the time and date by which the person specified in the Notice to Comply must comply with the directions in clause 14.15.
14.17 The time required by a Notice to Comply under clause 14.13 must be reasonable in the circumstances having regard to:
(a) the amount of work involved; and
(b) the degree of difficulty; and
(c) the availability of necessary materials or other necessary items; and
(d) climatic conditions; and
(e) the degree of risk or potential risk; and
(f) any other relevant factor.
14.18 A person served with a Notice to Comply under clause 14.13 must comply with a direction contained in the notice.
…
Power of authorised officer to confiscate
14.21 Where a person owning or responsible for items, goods and equipment has ignored a direction from an authorised officer to remove them, the items, goods, equipment or other property or thing may be confiscated and impounded.
31 Relevant definitions in cl 1.11 include the following:
“Advertising sign” includes any letter, figure, symbol, device, poster, sign, banner or message used for notifying:
(a) the existence of the sale or use of any goods or services; or
(b) the holding of an event or function; or
(c) the promotion of any person, company, organisation or thing.
“Authorised officer” means:
(a) a person appointed by the Council to be an authorised officer under section 224 of the Act; or
(b) upon the Council publishing a notice in the Government Gazette under section 224A of the Act, any police officer.
“Handbill” includes a placard, notice, book, pamphlet, paper and advertisement other than an advertisement affixed to any building abutting any road or public highway, but does not include a newspaper, magazine or book sold by a newsvendor or other person authorised by the Council nor any handbill containing material of an exclusively political nature distributed by hand to any person.
“Notice to Comply” means a notice given under clause 14.13 of this Local Law.
“Permit” means a permit granted under Part 13 of this Local Law.
“Place” when used as a verb includes allow to remain.
“Public place” has the same meaning as in the Summary Offences Act 1966 and, to the extent that it does not include the following, also includes:
(a) any place prescribed by the Council as a public place, other than an interior part of a building which is not occupied by the Council or a public body unless that part has been prescribed by the Council;
(b) any place to which the public whether upon or without payment for admittance have or are permitted to have access, but does not include a shopping centre;
(c) any park, garden, reserve or other place of public recreation or resort;
(d) any vacant land or vacant space adjoining any road;
(e) any wharf, pier or jetty; and
(f) a Council building.
3.2 Crown Land Reserves Act
32 Flagstaff Gardens is also reserved land under the Crown Land (Reserves) Act 1978 (Vic). Section 13(1)(a) of that Act provides:
(1) Where any land has been reserved under this Act-
(a) the trustees thereof or the Minister and the trustees (as the case may be) with the approval of the Governor in Council;
…
may make regulations for and with respect to-
…[ There are then 12 subject matters specified]
33 The Regulations, being the Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations (1994) (Vic), were made under s 13(1)(a).
34 Relevant provisions of the Regulations include the following:
18 A person must not in a Reserve, without the written consent of the Committee or Appointed Officer-
(a) use, erect or cause to be used or erected any booth, kiosk, tent or other temporary building or structure; or
(b) erect any temporary building, enclosure, tent or structure for public entertainment, exhibition or meeting purposes and charge for admittance.
21 A person must not in a Reserve, without the written consent of the Committee or Appointed Officer, bring in or use any caravan, structure, tent, trailer or vehicle for camping purposes.
…
32
(1) The Committee or an Appointed Officer may issue a permit or consent for any purpose (for which consent is required under these Regulations).
(2) A permit or consent given under these Regulations authorises the holder to enter and use the Reserve for the purpose specified, for the period specified and subject to the terms, conditions and fees, consistent with these Regulations, as the Committee or an Appointed Officer may from time to time determine either generally or in a particular case.
(3) Where a person is in contravention of any condition of a permit or consent given by the Committee or Appointed Officer under these Regulations, the permit or consent may be cancelled or amended as required by the Committee or Appointed Officer.
33 A person in a Reserve must comply with any reasonable direction of an Appointed Officer.
…
34
(1) An Appointed Officer may remove or cause to be removed any tent, caravan or other structure which –
(a) has been placed in a Reserve without written consent; or
(b) in the opinion of the Appointed Officer has been abandoned in a Reserve;
and store such property at an appropriate location.
3.3 Other
35 We will deal with the provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in the context of our discussion of the Charter issues.
4. THE COURSE OF THE TRIAL AND A SUMMARY OF THE PRIMARY JUDGE’S CONCLUSIONS
36 Initially, the appellant was not a party to this proceeding. The sole applicant was Mr Muldoon. Mr Muldoon was a postgraduate student who became involved in Occupy Melbourne after attending a meeting in October 2011. The evidence before the primary judge revealed that Mr Muldoon was present at some of the protests in Treasury Gardens and in Flagstaff Gardens. It was common ground at trial and on appeal however that he was not issued with any notices under the Local Law, nor given any directions under the Regulations, nor was he arrested during any of the protests. At the time the application was issued (in November 2011) only one notice to comply under the Local Law had been issued and the application related only to that one notice. No enforcement action had by that stage been undertaken in Flagstaff Gardens pursuant to the Regulations.
37 The proceeding was commenced and continued by way of application and affidavit. The use of this process contributed in our opinion to the significant lack of clarity at trial about what was in issue between the parties, and how the appellant and Mr Muldoon put their cases. As senior counsel for the appellant described it, the case “evolved” before the primary judge, such that by the time his Honour reserved there was a fourth further amended application which encapsulated the relief sought by the applicants.
38 The respondents to the application were the Council, the Chief Commissioner of Victoria Police and the State of Victoria. The Attorney-General of Victoria intervened in the proceeding.
39 There were many arguments before and during the appeal about the issues which could legitimately be raised by the appellant on the appeal. In some respects, the terms of the further amended notice of appeal did not assist the resolution of these issues. Further, the adoption of the mode of trial by application and affidavit means that, in resolving the matters which are legitimately before this Court on appeal, there must be a particular focus on the terms of the relief sought by the appellant at trial, and how the applicants’ arguments were developed by way of submission to support that relief.
40 Mr Muldoon sought to bring the proceeding in a representative capacity. The applicants’ final submissions before the primary judge described that capacity in the following way:
The Applicants have brought the Application in a representative capacity under r 9.21 of the Federal Court Rules 2011 (Cth) on behalf of all of the Protestors. It is not necessary for this purpose that all (or even some) of the Protestors know that the Application has been brought on their behalf. The persons whom the Applicants seek to represent have a common interest in the question whether the declaratory and injunctive relief sought by the Applicants ought to be granted. Thus, to avoid multiplicity of proceedings and the efficient determination, once and for all, of the controversies raised by the Application, the Application should proceed as a representative action in the manner identified.
41 In their written submissions filed prior to trial, the respondents objected to the applicants bringing the proceeding in a representative capacity. The objection was based on two grounds: non-satisfaction of the requirements as to “common interest” for the purposes of r 9.21(1) of the Federal Court Rules and, second, whether as a matter of discretion the proceeding should continue as a representative proceeding even if it did satisfy r 9.21(1).
42 The respondents also made arguments about the applicants’ lack of standing. While the respondents accepted Mr Muldoon (and, for that matter, subsequently Ms Kerrison) had standing to challenge the validity of the Local Law, Regulations and enabling legislation, they submitted there was no standing to challenge notices issued to anyone other than an applicant, nor to challenge action taken under the Regulations against anyone other than an applicant. The Chief Commissioner made a similar submission in relation to persons arrested, submitting only those who were arrested had standing to challenge the lawfulness of the arrests.
43 On the first day of the trial, an application was made to add Ms Kerrison, the current appellant, as a party. Ms Kerrison had been served with notices under the Local Law, and had been the subject of what came to be described in the trial, the submissions and the judgment as “enforcement activities” by both Council officers and Victoria Police. We will return to what is properly seen as encompassed by the term “enforcement activities” later in these reasons for judgment. Ms Kerrison’s joinder was obviously responsive to the submissions which had been made by the respondents about the standing of Mr Muldoon.
44 The primary judge reserved the questions of standing and whether Mr Muldoon and Ms Kerrison could bring the proceeding in a representative capacity, and dealt with them when judgment was delivered.
45 Shortly before the trial commenced, the High Court handed down the decision of Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2. On the basis of that decision the respondents and the Attorney-General challenged the jurisdiction of the Court to deal with the proceeding. The contention as to the jurisdiction concerned whether, based on some of the judgments in Wotton, it could be said the challenges to the Local Law and Regulations were claims “arising under the Constitution, or involving its interpretation” within s 39B(1A)(b) of the Judiciary Act 1903 (Cth). This prompted some further amendments to the application by the applicants to challenge the enabling legislation for the Local Law and the Regulations, namely s 111 of the Local Government Act and s 13 of the Crown Land (Reserves) Act. The jurisdictional challenge was fully argued before the primary judge and his Honour found the Court had jurisdiction. There is no appeal from that finding.
46 Apart from the jurisdiction issue, the primary judge described (at [78] of his reasons) the other major issues in the proceeding, and his conclusions on them, in the following terms:
2. Whether the applicants may bring or continue the proceeding in a representative capacity.
The Court accepts the argument of the respondents that the proceeding should not continue as a representative proceeding.
3. Whether the Regulations were automatically revoked by operation of the sunset provisions in s 5(1) of the Subordinate Legislation Act 1994 (Vic) (the Subordinate Legislation Act).
The Court accepts the arguments of the respondents and the Attorney-General that the Regulations were not revoked at the time of the protest.
4. Whether the notices to comply were invalid on their face because their wording meant that they fell outside cl 2.11 and / or cl 4.6 of the Local Law.
The Court accepts the argument of the Council that five of the eight notices to comply issued to the second applicant were validly issued. The Court accepts the argument of the second applicant that three notices to comply issued to her, one on 18 November 2011 and two on 28 November 2011, were invalid.
5. Whether the impugned Local Laws and Regulations when read together with their enabling provisions were invalid because they infringed the implied freedom of political communication and association.
The Court accepts the arguments of the respondents and the Attorney-General that the provisions are valid.
6. Whether the impugned Local Laws and the Regulations were incompatible with the rights to freedom of expression or peaceful assembly or freedom of association under the Charter.
The Court accepts the arguments of the respondents and the Attorney-General that the impugned provisions are not incompatible with those rights under the Charter.
7. Whether the decisions of Council officers to issue the notices to comply or take the enforcement action infringed the implied freedom of political communication or were incompatible with the right to freedom of expression or the right of peaceful assembly or freedom of association under the Charter.
The Court accepts the arguments of the respondents and the Attorney-General that the decisions did not infringe the implied freedom of political communication and were not incompatible with those rights under the Charter.
8. Whether the arrests of protesters made by Victoria Police were unlawful.
The Court accepts the arguments of the Chief Commissioner that the arrests were lawful.
9. Whether the applicants should have leave to amend [2(c)] and [6(c)] of the Fourth Further Amended Originating Application.
The Court accepts the argument of the Council and the Attorney-General that the application to amend should be refused.
47 Insofar as the primary judge’s reasoning supporting these conclusions is challenged in relation to the grounds of appeal, we address that reasoning when dealing with the applicable ground of appeal.
5. FURTHER APPLICATION FOR LEAVE TO AMEND THE NOTICE OF APPEAL
5.1 The application for leave
48 The oral submissions for the appellant dealt with two issues during the hearing of the appeal, neither of which had been raised in the further amended notice of appeal or discussed in the appellant’s written submissions. The issues were the appellant’s standing to challenge the validity of the enforcement actions taken against persons other than the appellant under s 38(1) of the Charter and a contention that the notices to comply under the Local Law served on people other than the appellant were invalid on their face.
49 The respondents objected to the appellant raising grounds of appeal not contained in the further amended notice of appeal filed on 17 June 2014.
50 On 22 August 2014, the final day of the hearing of the appeal, the appellant filed in Court and sought leave to rely upon a second further amended notice of appeal containing two additional grounds as follows:
6A
In the alternative to ground 6, the Court erred in holding (at [189]) that the appellant had no standing to challenge the actions referred to in paragraph 3(b) and 3(c) above insofar as they were directed to persons other than the appellant.
8A
The Court erred in failing to find that the issue, threat to act upon and enforcement of each of the notices identified in the annexed table (marked [A]) were on their face ultra vires the powers conferred on an authorized officer under the Local Law on the basis that they were not authorized by the provisions of the Local Law and were invalid.
51 The appellant also filed a further written submission in support of the application for leave.
52 We consider that leave to amend the notice of appeal to include these two new grounds should be refused. Our reasons follow.
5.2 Circumstances relating to proposed ground 6A
53 The cross-reference to paragraph 3(c) in proposed ground 6A is in error. There is no paragraph 3(c) in the further amended notice of appeal. We assume this is an intended reference to ground 4(c).
54 Paragraph 3(b) in the further amended notice of appeal contends that the enforcement activities of the Council in serving notices to comply under the Local Law were unlawful by reason of incompatibility with the rights to freedom of expression, peaceful assembly and freedom of association in ss 15 and 16 of the Charter.
55 Paragraph 4(c) in the further amended notice of appeal contends that the enforcement activities of the Council described in certain paragraphs of the affidavits of the appellant were unlawful by reason of incompatibility with the same rights under the Charter. The relevant paragraphs of the appellant’s affidavits identify conduct consisting of: (i) the removal of a tent worn by the appellant, and (ii) oral directions given to the appellant to remove an “Occupy Melbourne” banner tied to the fence railings at Flagstaff Gardens.
56 At [188] and [189] of his reasons, the primary judge said:
The Council contends that the applicants have no basis upon which to challenge the notices to comply issued to protesters other than themselves, no basis upon which to challenge the enforcement action taken against protesters other than themselves, and no basis upon which to challenge the arrests of protesters other than themselves.
The applicants did not mount any substantial argument against these contentions of the Council concerning standing, but rather relied on the application to bring the proceeding as a representative action to answer the problem. This is understandable because there is no basis upon which the applicants can challenge the individual circumstances of these actions which were not directed to themselves. They have no special interest apart from the interest of any member of the public, and they suffer no individual damage or detriment arising from the actions taken against others: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53.
57 The appellant submitted that the primary judge was in error in that it had been argued before the primary judge that the appellant had a “special interest” in the enforcement activities taken against people other than herself because she was an integral part of the “Occupy Melbourne” protest and enforcement activities against one protester had an impact on the overall protest.
58 According to the appellant, it had always been intended to challenge all notices to comply and not merely those served on the appellant, as disclosed by paragraph 3.2.2 of the further amended notice of appeal. Paragraph 3.2.2 is one of the orders sought. It seeks a declaration of invalidity in respect of “each notice to comply contained in Annexure SK-2 and SK-3 to the affidavit of the Appellant affirmed 14 December 2011”. Those annexures contain 150 notices served on different people during the protest. These were the notices identified in a schedule to the fourth further amended application on which the applicants relied at trial.
59 The appellant submitted that leave to include proposed ground 6A should be granted because the point raised is purely a legal one and involves no new evidence.
5.3 Consideration of proposed ground 6A
60 Insofar as the enforcement activities specified in paragraph 4(c) are concerned, proposed ground 6A is misconceived. The enforcement activities described in ground 4(c) were directed at the appellant. The issue of the appellant’s standing to take proceedings on behalf of others, accordingly, does not arise in respect of the conduct the subject of paragraph 4(c).
61 Insofar as the enforcement activities specified in paragraph 3(b) are concerned, being the “actions”, said to be “individual or systemic”, taken by Council officers against people other than the appellant in relation to or in reliance on the 150 notices to comply, leave should be refused.
62 First, the grounds in the further amended notice of appeal filed on 17 June 2014 are relevantly ambiguous. The grounds contain no reference at all to the standing issue or which grounds might depend on a finding contrary to that of the primary judge on standing. There is no express contention that the 150 notices to comply should be found invalid. Ground 3(b) is ambiguous because it refers to “the” notices without identifying whether this refers to all 150 notices or a subset. The ambiguity is exacerbated by the fact that ground 6 is limited to a challenge to the order that the proceeding not continue as a representative proceeding and is linked to ground 7 which contends that primary judge erred in failing to hold that 67 notices issued to protesters other than the appellant in sole reliance on cl 4.6 of the Local Law were invalid. Otherwise, there is no indication of which grounds depend on the appellant succeeding on her representative proceeding argument. Whatever the appellant might have intended, it is by no means clear that by ground 3(b) the appellant was challenging the actions of Council officers in relation to all 150 notices to comply, by reason of incompatibility with the rights under the Charter.
63 Second, the respondents construed the further amended notice of appeal in this way. They were encouraged to do so by the further fact that the appellant’s principal written submissions and reply submissions in respect of the appeal do not deal with the issue of standing in the context of the service of notices to comply on the protesters. Nor do the submissions deal with the primary judge’s restriction (at [191]) of the issues for determination in the proceeding as a result of having found the appellant had no standing. Given the confined way in which the representative proceeding issue was raised in grounds 6 and 7, the appellant could not prosecute ground 3(b) without standing to do so. The issue of standing was not raised by the appellant at all until oral submissions during the hearing of the appeal. The respondents should not reasonably be expected to deal with issues raised for the first time during oral submissions in an appeal heard over three days in respect of a first-instance decision which considered numerous issues resulting in a judgment of 468 paragraphs. The effect of permitting the appellant to do so would be to set at naught the pre-appeal case management efforts directed at this matter.
64 The appeal was listed before Mortimer J for directions on 10 June 2014. Her Honour directed the appellant to file and serve any application for leave to amend the notice of appeal by 4.00pm on 17 June 2014. During the directions hearing the legal representative of the appellant was advised by her Honour that, as the appeal had been fixed for hearing and the appellant could not then identify the proposed amendments, this was the appellant’s opportunity to regularise her notice of appeal and it would thereafter be “be highly unlikely, absent some extraordinary circumstances, that any further leave will be granted to amend”. While the respondents, despite their earlier objection, were willing to deal with this belated pleading, they maintained their objection to the appellant recasting her case yet again during oral submissions. The case management history of the appeal supports their objection. Directions are not made to be disregarded. To grant further leave in respect of proposed grounds 6A and 8A given the case management history of the matter would be inappropriate.
65 Third, there has been no adequate explanation from the appellant about the reason for the omission of proposed ground 6A from the further amended notice of appeal. The further submissions for the appellant handed up on the final day of the hearing of the appeal refer to the proposed ground being “omitted”, but how the proposed ground came to be omitted and when the appellant first realised that there had been an omission remains unknown.
5.4 Proposed ground 8A
66 Considerations of the same kind also weigh against the grant of leave to amend in respect of proposed ground 8A.
67 A separate issue of concern for proposed ground 8A is that, when analysed, the ground is entirely new to the appeal. As the Council pointed out, insofar as the appellant is concerned, the primary judge declared invalid the three notices to comply served on her in reliance on cl 4.6 of the Local Law (at [241]). The Council did not contend to the contrary in the appeal. The primary judge found that three other notices to comply served on the appellant in reliance on both cll 2.11 and 4.6 were valid (at [243]). Nothing in the further amended notice of appeal disclosed any challenge to that conclusion. In common with proposed ground 6A above, the structure and content of the further amended notice of appeal, in expressly limiting the challenge as set out in ground 5 (to the three notices served in reliance on cl 2.11) and the 67 notices as set out in ground 7 (being notices served in sole reliance on cl 4.6), the latter being dependent on the appellant succeeding on ground 6 (the representative proceeding issue), indicated that the appellant was not challenging the validity of all 150 notices on their face in the appeal.
68 The Council, moreover, pointed out the confined scope of the appeal in this regard in its written submissions filed on 11 August 2014. At paragraph 35(c) the Council noted that the appellant was not challenging in the appeal the three notices served on her in reliance on both cll 2.11 and 4.6. At paragraph 50 the Council noted that the construction of cl 4.6 of the Local Law was not in issue in the appeal for that reason, it being immaterial that “there may be other persons who received a notice under cl 4.6; such notices are not the subject of the appeal”.
69 Despite having had an opportunity to deal with these matters in submissions in reply dated 13 August 2014, the appellant said nothing to indicate to the contrary and made no attempt to clarify the issues she wished to raise until required to do so following the respondents’ objection to the oral submissions during the hearing of the appeal.
70 Further, the utility of the proposed amendment is doubtful. The appellant submitted that proposed ground 8A “does not lead directly to a declaration”. Rather, the appellant “asserts that the issue of any notice that was invalid on the basis of ground 8A was incapable of meeting the requirements of s 7(2) because it was not ‘under law’”. This is an abbreviated reference to the terms of the limitation in s 7(2) of the Charter that a “human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom…”. The appellant’s contention, as we understand it, is that any limit which is invalid because it is beyond the power of the relevant enabling legislation is necessarily outside the scope of s 7(2). However, this contention was not developed by the appellant in written submissions and is not dealt with at all in the respondents’ submissions for that reason. Nor is the contention apparent from proposed ground 8A, which makes no reference to s 7(2). The contention was mentioned, by way of assertion rather than argument, in the appellant’s oral submissions, but no more. Given that this largely unexplored contention underlies proposed ground 8A, and the contention raises potentially complex issues none of which have been given the service of considered argument by the parties, it is inappropriate for the appellant to be granted leave to raise this proposed new ground of appeal.
5.5 Conclusions about proposed grounds 6A and 8A
71 The appellant should not be granted leave to rely on proposed grounds 6A and 8A as set out in the second further amended notice of appeal. Accordingly, it is unnecessary to consider the substance of these grounds. The appeal proceeds on the basis of the primary judge’s findings on standing.
6. CONSIDERATION OF THE GROUNDS OF APPEAL
6.1 Identifying the “enforcement activities”
72 As we have noted above, the proceeding concerned the conduct of protests in two places: Treasury Garden and Flagstaff Gardens. The evidence revealed that the first respondent relied on the provisions of the Local Law, and issued notices to comply pursuant to cl 14.13 of the Local Law, at Treasury Gardens. When the protest moved to Flagstaff Gardens, the first respondent relied on the provisions of the Regulations to issue directions and to seize items.
73 Thus, the “enforcement activities” challenged by the appellant at trial and on appeal occurred in two different places under two different legislative regimes. It is an obvious proposition that the evidentiary basis for the challenges needed separately to be established. Since the appellant elected not to challenge the primary judge’s findings on the substantive prohibitions themselves, the appeal focussed on arguments connected with the enforcement of those prohibitions.
74 The “enforcement activities” relied on by the appellant for the purposes of challenge were opaquely identified. During the hearing of the appeal the Court asked the appellant to prepare a document which more precisely identified the activities impugned, the evidence relied on and the sources of power the appellant said were ineffective (for the various reasons outlined in her argument) to authorise these activities. The appellant produced a table, although its contents had some disconformities with the grounds of appeal and arguments.
75 At Treasury Gardens, the enforcement activities were said to be:
The issue of each of the 150 notices to comply under cl 14.13 of the Local Law, those notices having been listed, with varying degrees of details, in a Schedule to the originating application (item 1 in the table, ground 3(b) of the further amended notice of appeal, cl 14.13 in the Local Law);
The particular directions given in the notices to comply, which were separately identified as an enforcement activity (see item 5 of the table, and possibly ground 3(b) of the further amended notice of appeal, although it does not in terms challenge the directions in the 150 notices as enforcement activities, unless this is what is meant by “systemic” actions);
The confiscation of the tent embassy (item 2 in the table, however this does not appear in the grounds of appeal at all); and
A threat that the notices to comply would be enforced, said to be inherent in the issuing of each notice (item 6 of the table. This does not appear in the grounds of appeal and in our opinion even on a generous reading cannot be comprehended by ground 3(b) of the further amended notice of appeal).
76 At Flagstaff Gardens, the enforcement activities were said to be:
The removal of a tent “worn” by Ms Kerrison (item 3 of the table, ground 4(c) of the further amended notice of appeal); and
The removal of an “Occupy Melbourne” banner (item 4 of the table, ground 4(c) of the further amended notice of appeal).
77 We note that in the appellant’s outline of submissions before trial, which were handed up on the appeal, “two particular examples of unlawful enforcement” are given, the second being the “tent incident” with Ms Kerrison. The first, relating to a “tasking sheet” issued by Victoria Police during what was described as “Operation Dangle” was not pursued on appeal.
78 It is, however, important to note that in submissions before the primary judge, the removal of Ms Kerrison’s tent was principally framed as an issue about the unlawfulness of the actions of Victoria Police. The evidence shows, as we refer to below, that it was officers of Victoria Police who removed the tent from Ms Kerrison, with assistance from Council officers. The way in which the tent covering Ms Kerrison was removed — which was captured on video — reflected poorly on Victoria Police and Council officers. Before the primary judge, and at the end of the trial, the appellant and Mr Muldoon withdrew all of their case against the Chief Commissioner, and officers of Victoria Police, except for the part which flowed from the applicants’ succeeding on impugning the Local Law and Regulations, so that any arrests which depended on those laws would be unlawful. What that leaves for determination on the appeal concerning the lawfulness under s 38(1) of actions of Council officers in relation to the removal of the tent is discussed below at [218], but it is important to understand only some aspects of this event are in issue on the appeal.
79 It is clear from the terms of the fourth further amended originating application, set out at [22] of the primary judge’s reasons, that, first, the Aboriginal tent embassy incident in Treasury Gardens was not the subject of particular relief sought at trial and, second, there was no relief sought concerning the particular directions in each of the notices in the terms now formulated by item 5 of the table, nor formulated any other way.
80 The fourth further amended originating application did seek declarations in relation to “the issue, the threat to act upon, and the enforcement of each notice to comply”, on the basis that “such actions” were incompatible with the applicants’ rights under the Charter and so in contravention of s 38(1) of the Charter. As we have said above, the only ground of appeal which could possibly encompass the arguments which sat behind seeking this relief is ground 3(b) of the further amended notice of appeal. We do not consider that the concept of an “inherent threat” to enforce each notice was raised at trial in those terms. It is certainly not identified in the further amended notice of appeal as a particular error made by the primary judge, nor is any such argument discussed in his reasons. Accordingly, consistent with the conclusion we have reached that leave should not be granted to the appellant to raise additional grounds not contained in the further amended notice of appeal, we do not propose to consider this “inherent threat” argument as part of the enforcement activities which are the subject of the further amended notice of appeal.
81 Therefore, neither the tent embassy incident nor the “particular directions” in the notices, nor the “threat that the notice would be enforced” should be dealt with on the appeal as comprehended by the term “enforcement activities”, especially in relation to the appellant's claims under the Charter.
82 What can be considered on the appeal as “enforcement activities” are:
Subject to our findings on ground 6A (that the appellants not be granted leave to raise the issue of standing to challenge all 150 notices as contravening rights under the Charter) and the representative proceeding issue, the actions of the Council officers taken in reliance on the 150 notices to comply under cl 14.13 of the Local law, those notices having been listed, with varying degrees of detail, in a Schedule to the originating application (item 1 in the table, ground 3(b) of the further amended notice of appeal);
The removal of the tent worn by Ms Kerrison (item 3 of the table, ground 4(c) of the further amended notice of appeal); and
The removal of an “Occupy Melbourne” banner (item 4 of the table, ground 4(c) of the further amended notice of appeal).
6.2 The representative proceeding issue (ground 6)
83 We deal with this ground first because, together with our refusal to grant leave to the appellant to challenge the primary judge’s conclusion on standing, it informs our approach to many of the other grounds of appeal. It is necessary to note a few matters at the outset of consideration of this issue.
84 First, although the primary judge ordered that the proceeding “not continue as a representative proceeding”, the question whether the proceeding should be constituted as a representative proceeding or not was in issue from the start (see the primary judge’s reasons at [136] - [138]). Until the first day of the hearing the sole applicant was Mr Muldoon. The Council maintained from the outset that as Mr Muldoon was not the subject of any enforcement action he could not claim the relief sought on behalf of others who were the subject of enforcement action. An application was made, apparently on the first day of the hearing, to join the now sole appellant, Ms Kerrison, as an applicant. Ms Kerrison, unlike Mr Muldoon, had been served with notices to comply under the Local Law and given oral directions under the Regulations.
85 The Council accepted that the appellant had standing to contend that the challenged provisions of the Local Law and Regulations were invalid and that the notices issued and directions given to her were invalid, but maintained that the proceeding should not be constituted as a representative proceeding and the appellant had no standing to challenge the validity of enforcement action taken against any other person. The primary judge, rather than ruling on this issue during the hearing, deferred the issue for consideration along with all other issues. The order the primary judge made, that the proceeding not continue as a representative proceeding, needs to be understood in this context.
86 Second, consideration needs to be given to the function of ground 6 in the context of the further amended notice of appeal. Grounds 1, 2, 3(a), 4(a) and (b), 5, 8 and 11 have nothing to do with the status of the proceeding as a representative proceeding or not. Ground 10 has its own difficulties, and is considered separately below. Otherwise, the representative proceeding issue is potentially relevant to grounds 3(b), 4(c) and 7. Grounds 3(b) and 4(c) relate to alleged breaches of the Charter. Ground 7 relates to the 67 notices served on persons other than the appellant in sole reliance on cl 4.6 of the Local Law. This context also has to be recognised given that the orders the appellant seeks involve the setting aside of the primary judge’s order that the proceeding not continue as a representative proceeding and a re-exercise by this Court of the discretion under r 9.21(2) of the Federal Court Rules.
87 The relevant rules provide as follows:
9.21
(1) A proceeding may be started and continued by or against one or more persons who have the same interest in the proceeding, as representing all or some of the persons who have the same interest and could have been parties to the proceeding.
(2) The applicant may apply to the Court for an order appointing one or more of the respondents or other persons to represent all or some of the persons against whom the proceeding is brought.
(3) If the Court makes an order appointing a person who is not a respondent, the order has the effect of joining the person as a respondent to the proceeding.
…
9.22
(1) An order made in a proceeding for or against a representative party is binding on each person represented by the representative party.
(2) However, the order can be enforced against a person who is not a party only if the Court gives leave.
(3) An application for leave under subrule (2) must be served personally on the person against whom it is sought to enforce the order.
(4) A person who is served with a notice under subrule (3) may dispute liability to have the order to which the notice relates enforced against the person on the ground that facts and matters particular to the person entitle the person to be exempt from liability.
88 The primary judge noted at [141] that the appellant
… asserted the basis for the representative nature of the proceedings as follows:
REPRESENTATIVE ACTION
…
The Second Applicant sues on her own behalf and in a representative capacity under r 9.21 of the Federal Court Rules 2011 (Cth) on behalf of the Protesters who were purportedly served with a Notice to Comply, and on behalf of Protesters who were purportedly the subject of the enforcement activities under the Regulations as described above.
89 The primary judge continued:
142 “Protesters” was defined as:
Each person who has been a participant in one or more of the various assemblies constituting the Protest.
143 “Protest” was defined to mean:
The various assemblies of persons who have since 2 November 2011 gathered at the Treasury Gardens, Gordon Reserve and the Flagstaff Gardens, Melbourne, being the assemblies known as, and identified by the persons participating in them as, the Occupy Melbourne movement.
90 After examining the relief sought, the primary judge said that:
152 The Council accepted that the applicants had standing to challenge the validity of the impugned Local Laws and Regulations and the enabling Acts under which they were made.
153 The Council however argued that the applicants had no standing to challenge notices to comply and action taken under the Regulations against persons other than themselves. The Council contended that the attempt to sue in a representative capacity was the applicants’ way of avoiding their lack of standing. It submitted that the proceeding did not fulfil the requirements of r 9.21 of the Rules for a representative proceeding. Alternatively, the Council contended that the Court should order, as a matter of discretion that the proceeding not continue as a representative proceeding.
154 The Chief Commissioner submitted that the applicants had no standing to challenge the lawfulness of the arrests of other people as they had not been apprehended by Victoria Police themselves. Thirteen people were arrested during the course of the protests. The applicants were not arrested. The Chief Commissioner argued that the question of the lawfulness of any arrests was not appropriate for a representative action as the applicants, not having been arrested, had no community of interest with people who had been arrested.
91 At [156], the primary judge concluded (correctly) that:
The area of controversy was whether the first applicant and the second applicant and the respective representative group had the same interest in the determination of the validity of the notices to comply, the validity of the enforcement actions and the validity of the arrests.
92 His Honour continued as follows:
161 If the applicants’ challenges to the validity of the notices to comply, the enforcement actions and the arrests were concerned with the separate factual circumstances of each of these actions then the protesters and those against whom action was taken would not have had the same interest in a substantial legal issue in the proceeding.
162 It seems that the objection by the Council to the proceeding being constituted as a representative action was that the Council would need to mount a defence in respect of the particular circumstances of each notice and each act of enforcement. However, it became clear that the applicants’ challenges were pitched at a higher level of generality. Their argument focused on the description of the prohibited conduct in the notices and its disconformity with the conduct prohibited by cll 2.11 and 4.6. Similarly, in relation to the enforcement activities and the arrests, the applicants’ arguments involved a challenge based on the interpretation of the scope of the provisions but not on the detailed factual circumstances of each event.
163 At this level of argument the protesters had the same interest in the determination of the validity of the notices to comply, the enforcement activities and the arrests.
…
171 The reference to starting the proceeding against a person in r 9.21 is a reference to the time when a cause of action is commenced against a person. The operation of the rule is not restricted to the time when an application is first filed. The present case is a good illustration why this is so. The application was commenced shortly after the protest began. As events unfolded further issues emerged. Thus, when the Council commenced to use the impugned Regulations rather than the impugned Local Laws, it was not necessary to start a new application in order to come within r 9.21 rather than to rely upon the amendment of an existing application.
172 Rule 8.21(1)(g)(ii) allows a party to apply to amend an originating application to add a new claim for relief that arises out of facts or matters that have arisen since the start of the proceeding. When such an amendment is made, the amendment constitutes the start of the proceeding in respect of the claim made by the amendment for the purposes of r 9.21. If the applicants and the parties to be represented by them had the relevant community of interest when the amendment was made, then they had that community of interest at the start of the proceeding for the purposes of r 9.21. It follows that the community of interest existed at the necessary time for purposes of constituting the proceeding as a representative action.
…
93 The primary judge resolved the issue on a discretionary basis. He reasoned as follows:
173 Then, the Council argued that, even if there was the necessary community of interest, the Court should order that the matter no longer proceed as a representative action. Such an order would be in exercise of the discretionary power to make any order that the Court considers appropriate in the interests of justice under r 1.32 of the Rules. The basis of this contention was that there was no evidence that the represented parties had notice of the representative proceedings.
174 In response to this submission, the first applicant filed his 2 May 2012 affidavit explaining that there had been reports of the Court proceedings at general assemblies of Occupy Melbourne held in November and December 2011. For instance, at the general assemblies held on 6 and 9 November 2011 he said to the protesters:
I am the litigant in this matter, and I am bringing the matter in my own name. That means that I will be the subject of any adverse costs orders. However, I am bringing the case to the court on behalf of Occupy Melbourne, and on behalf of the protestors who have been affected by the Council enforcement actions.
Minutes of the proceedings of the general assemblies and regular updates about the Court proceeding were published on Twitter, Facebook, and the Occupy Melbourne website.
175 This notice was not sufficient to justify a representative proceeding. The notification was brief. It lacked an explanation of the effect of any orders which might be made. Further, the evidence did not establish whether the protesters assented to the proceeding being taken on behalf of each of them.
176 The second applicant filed her 3 May 2012 affidavit also on this issue, which stated at [21]:
I have had recent contact and communication with 28 of the protesters, covering 64 of the Notices to Comply. Those protesters are: Robert Allan Thorpe, Lachlan Gifford Wesley Mirs, Mustafa / Moustafa Sayegh, Kathleen (Kathleen Bennet), Manu, Brett Paatsch, Jeff Pyrotek, Tal Slome, Geoff (Jeff Reinten), Brandon, Michael, Lachlan Gifford, Kev Moran, Ben / Benjamin Baker, Baron De Merxhausenm, Liam, Kade Dors, Deb Hingo, Cobina Crawford, Em, Kieran Lee Walker, Ryan Tews (Ryan), Scott Day, Tim Carson, Tamlin Parker, Tanya Hankle and Dave Saxton. In the course of those communications, I have said to each of the protesters: You were a recipient of a notice to comply that is being dealt with in the court proceedings. Are you happy for us to continue to proceed in a representative capacity in determining the lawfulness of those notices and actions taken in relation to them?
Each protester has responded: Yes.
177 The notice given by the second applicant was personal to each of the 28 recipients of the notices to comply, and it sought and received a personal assent for the second applicant to represent them in the action. However, it gave no explanation of the consequence to the individual of the matter proceeding as a representative action. Consequently, this notice was also insufficient to justify the matter proceeding as a representative action.
178 However, there are several other issues relevant to the exercise of the discretion.
179 It seems that the concern of the Council was that if the proceeding was to proceed as a representative action, the individual circumstances of each notice to comply and of the enforcement activity under the impugned Regulations would be in issue. Then, the Council would have been required to provide detailed evidence from each of the Council officers about the specific circumstances of each notice and action.
180 However this was not the basis on which the applicants sought the representative action order. The arguments which were common to each of the categories of represented parties were issues of construction which did not depend on an examination of the individual circumstances in which the notices were served or the enforcement activity occurred. They depended on the wording of the notices and the scope of the provisions. Consequently, the problems which the Council thought it may have to confront if the matter proceeded as a representative action did not arise in the way the applicants brought their case.
181 Then, the Council argued that the representative proceeding was unnecessary because all the legal issues could be resolved in the action taken by the applicants alone. In particular, all the construction issues concerning the notices to comply were raised by the notices to comply issued to the second applicant herself.
182 On the other hand, when asked by the Court why the representative orders were sought by the applicants, Mr Merkel replied “[t]hey wanted to sue as representatives, because it was a movement that was coming to court”.
183 It thus appeared that the value to all of the parties in pursuing the arguments on representative capacity was limited. Nonetheless, the arguments took a significant amount of time and effort. It is doubtful that the arguments served a valuable purpose for any of the parties.
184 Ultimately, the issue should be resolved by reference to the principle underlying r 9.21. The primary purpose of a representative proceeding is to avoid a multiplicity of proceedings that agitate the same issues.
185 It is unlikely that if the action does not proceed as a representative action the protesters other than the applicants will commence proceedings to raise the issues agitated in this case. The main interest in the matter proceeding as a representative action seems to derive from the nature of the Occupy Melbourne protest as a collective action. This interest is in essence cosmetic. It does not justify orders under r 9.21. The evidence as a whole does not establish that the proposed represented parties wish proceedings to be pursued on their behalf as a result of the action taken against them or against the protesters. Rather, there is nothing to suggest that they will not be content if the issues are determined in the application brought by the applicants alone.
186 Consequently, the Court will order that the proceeding not continue as a representative proceeding. This means that the construction arguments concerning cll 2.11 and 4.6 of the Local Law, and the validity of the enforcement activities will be considered only in relation to the notices to comply issued to, and the action taken against, the second applicant. The lawfulness of the arrests is considered commencing at [454] on a basis which is there explained.
94 The appellant contended in her written submissions that this exercise of discretion miscarried because: (i) no particular notice requirement exists for representative proceedings and his Honour wrongly applied an inflexible rule requiring notice meeting some minimum standard, (ii) there was no evidence from which his Honour could infer that other protesters would take proceedings, and (iii) in any event, the wishes of the other persons were irrelevant.
95 According to the appellant these matters establish an error of principle in the exercise of the discretion attracting appellate intervention consistent with the reasoning in House v The King (1936) 55 CLR 499 at 505.
96 These grounds do not correspond to those in the further amended notice of appeal, but were the only grounds developed in the written submissions.
97 For its part, by notice of contention, the Council contended that the primary judge erred in finding that the appellant had the same interest as other protesters in the determination of the validity of the notices to comply, the validity of the enforcement actions and the validity of the arrests.
98 The conduct of the case before the primary judge and on appeal creates difficulty for the appellant. In particular, the primary judge found that the appellant had the same interest as the other persons the subject of enforcement actions and arrest on the basis that the case “involved a challenge based on the interpretation of the scope of the provisions but not on the detailed factual circumstances of each event” (at [162]). If, to the contrary, the case had involved “challenges to the validity of the notices to comply, the enforcement actions and the arrests … concerned with the separate factual circumstances of each of these actions then the protesters and those against whom action was taken would not have had the same interest in a substantial legal issue in the proceeding” (at [161]). The finding of the same interest for the purpose of r 9.21(1) thus depended on the primary judge’s understanding that the appellant’s case did not concern the “separate factual circumstances” of each enforcement action. On appeal, however, the appellant contends that the primary judge erred in not analysing the specific factual circumstances of each enforcement action in order to determine that, even if the impugned provisions of the Local Law and Regulations are valid, the enforcement actions as a whole were nevertheless unlawful, being in breach of s 38 of the Charter (grounds 3(b) and 4(c)).
99 The appellant cannot have it both ways. She cannot both take the benefit of the primary judge’s finding that because the appellant’s (and Mr Muldoon’s) case operated at a high level of generality they had the same interest as others for the purposes of r 9.21(1) and assert error by the primary judge in not dealing with the specific factual circumstances of each enforcement action; at the least the appellant cannot do so without challenging the primary judge’s finding that if specific factual circumstances had to be considered then the appellant would not have the same interest as the other individuals the subject of enforcement activities and arrest.
100 The Council also cannot have it both ways. Where it suited the Council, in respect of its notice of contention, it relied on the fact that the appellant had challenged each and every notice as invalid before the primary judge. Where this did not suit the Council (all other issues apart from the notice of contention), the Council maintained that the primary judge had correctly understood the way in which the appellant had put the case below (that is, at a high level of generality, and irrespective of the specific factual circumstances of individual enforcement actions and arrests) and should not be permitted to recast the case in the appeal.
101 Apart from this, the assertion of error of principle by the primary judge is unpersuasive.
102 The primary judge was not applying an inflexible rule requiring the giving of notice of a particular standard. He was doing no more than correctly recognising that the other people who had been served with notices to comply had a real interest in knowing what was purported to be done on their behalf and how it might affect them. A person served with a notice was bound to comply, failing which the person committed a separate offence for which they might be prosecuted. A declaration of validity or invalidity of a notice served on a person has obvious legal and practical consequences for that person. In these circumstances, the primary judge’s concern that those other persons had not been sufficiently informed about the proceedings, the relief being sought, and its potential impacts on them, was valid.
103 On the same basis, we do not accept that the wishes of the other people the subject of the enforcement actions and arrests were an irrelevant consideration which the primary judge was prohibited from taking into account in the exercise of his discretion. No such limitation on the discretion is apparent from the terms of r 9.21. To the contrary, the fact that such other people “could have been parties to the proceeding” indicates that their views may well be relevant to the making of any order that a proceeding not be permitted to be started or to continue as a representative proceeding. The appellant cited no authority to support the proposition that the views of the people being represented constitutes an irrelevant consideration prohibited from being taken into account and there is no reason apparent from the scheme for representative proceedings or in principle to infer the existence of any such prohibition.
104 The challenge to the exercise of discretion on the basis that there was no evidence from which his Honour could infer that other protesters did not wish proceedings to be taken on their behalf is misconceived. The primary judge was not making a finding based on no evidence. The point he was making has to be understood in context. The context was the issue of avoiding a multiplicity of proceedings, which the primary judge, rightly, considered a primary purpose of r 9.21 (at [184]). In this context, he observed that the “evidence as a whole does not establish that the proposed represented parties wish proceedings to be pursued on their behalf as a result of the action taken against them or against the protesters” and that there “is nothing to suggest that they will not be content if the issues are determined in the application brought by the applicants alone”. It is on this basis that his Honour said it is “unlikely that if the action does not proceed as a representative action the protesters other than the applicants will commence proceedings to raise the issues agitated in this case” (at [185]). The point being made was that the lack of evidence about the position of the other protesters who had been the subject of enforcement action or arrest indicated the unlikelihood of a multiplicity of proceedings. His Honour was entitled to draw that inference from the lack of evidence adduced about these matters.
105 Insofar as the grounds in 6(a) to (d) of the further amended notice of appeal are concerned, the oral submissions adverted to, but failed to develop, these grounds.
106 As to (a), the primary judge’s description of the interest in the proceeding being constituted as a representative proceeding being “in essence cosmetic” (at [185]) does not disclose any error of principle. His Honour’s point was that, when analysed, it was the collective nature of the protest that appeared to underpin the desire to constitute the proceedings as a representative action. Given that it was unnecessary for the proceeding to be so constituted for the appellant to challenge the validity of the provisions of the Local Law and Regulations in dispute and the enforcement actions taken against her, this description was not unjustified. Even if unjustified, it does not disclose any error of principle.
107 As to (b) and (c), the primary judge was well aware of, and took into account, the fact that the appellant was suing as “a movement engaged in the public communication and protest about political and government matters”. This consideration is apparent from the findings the appellant impugns at [185] of the primary judge’s reasons.
108 As to (d), the appellant has not explained how or why the primary judge acted unreasonably or unjustly. Insofar as this might relate to the timing of the order, the issue is dealt with below.
109 As to 6(e), which was referred to in submissions, the relevant question was not one of a change of circumstances. The issue of the proceeding continuing as a representative proceeding was alive from the outset. The Council had submitted during the hearing that the proceeding, if properly commenced as a representative proceeding (which the Council disputed), should not be permitted to continue as such based on certain discretionary considerations. The primary judge was persuaded that the Council was correct. The fact that the primary judge deferred ruling on the issue until judgment was delivered does not mean that he had to identify some change of circumstances between the proceeding starting and the date of the ruling. It is plain that his Honour’s conclusion was based on the circumstances as they existed at the date of the hearing. He took into account the whole of the evidence then available and exercised his discretion accordingly.
110 For these reasons, the challenge to the primary judge’s exercise of discretion fails. For what it is worth, we consider that the conclusion the primary judge reached that the proceeding should not continue as a representative proceeding (assuming it was properly started as one) was the preferable result. Notices to comply were issued by a multiplicity of officers of the Council, the identity of whom (bar one), remain unknown. The identity of the recipients of many of the notices remains unknown, false names having apparently been given to the officers of the Council. The effect of the enforcement actions on the persons the subject of them remains unknown. The persons the subject of those activities have a direct interest in the validity or invalidity of any enforcement action taken against them. The evidence did not establish that those persons had been informed about the relief sought in the proceedings or how the proceedings might impact on them. Permitting the proceeding to continue as a representative proceeding, in these circumstances, would have been inappropriate. Accordingly, even if the primary judge had erred in the exercise of his discretion, we would not have been persuaded to permit the proceeding to continue as a representative proceeding in any event.
111 Ground 6, accordingly, is rejected.
6.3 Constitutional issues (Ground 1)
6.3.1 The way the constitutional issues were raised at trial and the primary judge’s findings
112 At trial, the constitutional challenge by the applicants went both to the substantive prohibitions in the Local Law (found in cll 2.11 and 4.6 of the Local Law) and to what were described as the “enforcement provisions” of the Local Law (said to be found in cll 14.12 to 14.24). In the fourth further amended originating application (as set out in [22] of the primary judge’s reasons) the applicants at trial relevantly sought declarations that:
The 150 notices were ultra vires because, amongst other reasons, “cll 2.11, 4.6 and/or 14.12 to 14.24 of the Local Law… impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution” (para 2(a) of the fourth further amended originating application);
The making of “cll 2.11 and 4.6 of the Local law and/or 14.12 to 14.24 of the Local Law” was ultra vires the powers conferred by s 111 of the Local Government Act by reason that “the clauses impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution” (para 3(a));
The enforcement activities in Flagstaff Gardens (which we have described at [76] above) were ultra vires the powers conferred on the Council officers under the Regulations because regs 18, 21 and/or 33 and 34(3) “impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution” (para 5(a)); and
The making of regs 18, 21, 33 and 34(3) of the Regulations was ultra vires the powers conferred by s 13 of the Crown Land (Reserves) Act because those regulations “impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution” (para 6(a)).
113 Declarations of invalidity were also sought separately in respect of s 111 of the Local Government Act and s 13 of the Crown Land (Reserves) Act (paras 3A and 6A).
114 The primary judge described the applicants’ challenge represented in these paragraphs as their “primary attack” in the proceeding. Having set out the two questions relevantly arising in the case of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, and the parties’ submissions, on the first Lange question the primary judge found that camping in tents (which was what was prohibited by cl 2.11, unless there was permission to do so) was a burden on a form of non-verbal communication which the implied freedom protects, and this effect was not slight nor insubstantial.
115 On the second Lange question, the primary judge found the object of the provisions, being to provide for the preservation, care maintenance and equitable use of the gardens, was an object compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. On appeal the appellant expressly accepted that the object of the relevant provisions was as his Honour had described.
116 The primary judge then found that the Local Law and Regulations were reasonably appropriate and adapted to achieving those objectives. In reaching this conclusion the primary judge examined three factors. First, the limited nature of the restriction: that is, it did not preclude protests in the gardens, nor camping, nor protestors staying in the gardens as long as they wished. Second, the permission regime (including the reviewability of refusal of a permit) was seen by the primary judge as a “strong factor” in support of the validity of the provisions, relying on the approach taken in both Wotton and Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3. Third, the primary judge did not accept the applicants’ contention that there were less drastic means available, with the consequence that there was no proportionality between the measure and the achievement of the object. Relying in part on the reasoning of Crennan, Kiefel and Bell JJ in Adelaide City Corporation, his Honour rejected the contention that an express exception in the laws for political communications was practicable, and an obvious and compelling alternative.
117 The primary judge acknowledged (at [413] - [414] of his reasons) that the High Court’s judgment in Adelaide City Corporation, which was handed down after his Honour reserved judgment, had removed the substantial support for the applicants’ constitutional argument which could be derived from the decision of the Full Court of the South Australian Supreme Court in Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334; [2011] SASCFC 84. That change, his Honour observed, caused the applicants, in their supplementary submissions after trial, to focus on the enforcement provisions in the Local Law “and specifically on cl 14.13”. The primary judge’s selection of cl 14.13 as the key provision under challenge by the applicants at trial is not without significance for our consideration of some of the issues arising on the appeal.
118 His Honour rejected the challenge to the enforcement provisions in the following way (at [414] - [416]):
However, the enforcement provisions are in aid of the provisions of the Local Law. It is difficult to conceive of them as having a restrictive effect separate from the provisions which they are designed to enforce. The argument of the Council that any burden is to be found in the prohibition not in the mode of enforcement should be accepted.
The applicants also argued that the procedure provided in cl 14.13 immunised the decision to issue a notice to comply from judicial scrutiny in several ways. It was contended that once a notice to comply was issued it was too late to challenge because the notice took effect immediately and there was nothing thereafter upon which a Court could act. This contention was linked to an argument that conflicts over political communication may arise quickly and without warning, and that courts are unable to respond sufficiently quickly to protect the interests of protesters. As a result, so it was argued, the provisions did not provide sufficient protection for political communication.
These submissions are without substance. It is notorious in the legal profession that courts have standing arrangements to cater for urgent situations. Judges are available everyday and for 24 hours in each day, including during holiday periods and on public holidays. Modern communications are used in the court system so that orders may be made in a hearing conducted over the phone. It cannot seriously be suggested that where an urgent response is required the judicial system is not able to provide it. It is also untenable to suggest that a court cannot invalidate a notice to comply and remedy any effects caused by unlawful action if a notice to comply is challenged in a court. Orders may be made to set aside a notice to comply which is invalid, and require, say the return of property previously confiscated as a result of the invalid issue of the notice to comply. Consequently, cl 14.13 and the related enforcement provisions of the Local Law separately do not impermissibly burden the implied freedom of political communication.
119 There was no challenge on appeal to the approach taken by his Honour in terms of legal principle. His Honour relied on the two Lange questions (as modified by the High Court in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [96] per McHugh J) as being the settled approach to the implied freedom, as confirmed by the High Court in Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [47] per French CJ, at [94] - [97] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Wotton 246 CLR 1; [2012] HCA 2 at [25] per French CJ, Gummow, Hayne, Crennan and Bell JJ; Adelaide City Corporation 249 CLR 1; [2013] HCA 3 at [67] per French CJ, at [131] per Hayne J; Unions New South Wales v New South Wales (2013) 304 ALR 266; [2013] HCA 58 at [35], [44] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; cf Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 at [279] - [286] per Crennan, Kiefel and Bell JJ. His Honour referred to some of the difficulties inherent in the second Lange question, and relied on the formulation by Crennan, Kiefel and Bell JJ in Monis. Again, there is no criticism of his Honour’s approach in this appeal.
120 The difficulties posed by the Adelaide City Corporation decision to the applicants’ principal constitutional arguments concerning the prohibitions in cll 2.11 and 4.6 of the Local Law and regs 18 and 21 were reflected in the terms of the appeal from the primary judge.
121 Another point to note about the approach taken by the primary judge relates to the breadth of challenges to the “enforcement provisions”. At [21] of the primary judge’s reasons, his Honour notes that most of his reasons concern regs 21 and 34 of the Regulations. As we have noted, at [18] of the reasons, his Honour makes a similar observation about cl 14.13 of the Local Law. The appellant’s grounds of appeal however, cast the net more widely. Ground 1 (which deals with the appeal on the constitutional arguments in relation to the Local Law) refers to cll 14.12-14.18 and 14.21-14.24, and ground 4 (which deals with the constitutional arguments on appeal in relation to the Regulations) refers to s 13 of the Crown Reserves Act, and regs 33 and 34(3) of the Regulations.
122 On appeal, oral argument was only directed to cl 14.13. Our consideration will focus on that clause but applies to all of the enforcement provisions in the Local Law which are identified in the further amended notice of appeal. There was little or no reference in argument to the Regulations.
123 There was no challenge on appeal to the primary judge’s findings that each of the prohibitions in the Local Law and Regulations were constitutionally valid. It should be recalled that those prohibitions relevantly precluded camping in a tent without a permit (cl 2.11), erecting a portable advertising sign or other thing in a public place without a permit (cl 4.6), using or erecting a tent or other temporary structure without Council consent (reg 18) and bringing a structure or tent onto a reserve for camping purposes (reg 21). Of particular importance for the consideration of the challenges on appeal to the enforcement provisions, the failure of the appellant to challenge the primary judge’s findings on the prohibitions means the appeal proceeded on the basis that the appellant accepted those prohibitions were reasonably appropriate and adapted to achieve the objective of the preservation, care, maintenance and equitable use of the Treasury and Flagstaff Gardens.
124 The appellant sought to elide the distinction between a challenge to the substantive provisions and a challenge to the enforcement provisions by submitting that the former were “only just” valid, and operate “at the limits of constitutional power”. That is not an appropriate characterisation of the substantive provisions, nor is it one adopted by the primary judge. As the State submitted on appeal, the nature of the provisions in issue in this proceeding are ones only incidentally restricting the implied freedom, which, as Crennan and Kiefel JJ observed in Adelaide City Corporation 249 CLR 1; [2013] HCA 3 at [217] is a matter of no small importance to their validity. The primary judge did not “read down” the substantive provisions in order to find them valid and we agree this is not necessary. Although the primary judge recognised that there may be circumstances where the exercise of discretion to refuse a permit to persons wishing to engage in a protest might be unlawful if there was no prejudice to the preservation, care, maintenance and equitable use of the Treasury and Flagstaff Gardens, that does not suggest the substantive provisions, or the permit regime, are “only just valid”, whatever that is intended to mean. There are no degrees of validity.
6.3.2 The Local Law
125 As a result, the appellant’s principal case against the enforcement provisions was put in two ways. Her primary contention was that cl 14.13’s authorisation of service of a notice to comply on the basis of a reasonable suspicion of conduct contravening the Local Law, in circumstances where there may in fact have been no contravention committed, impermissibly burdens the implied freedom. It appears that the same argument was made in relation to cl 14.18, which imposes an obligation to comply with a direction given in a notice: read with cl 14.1, failure to comply constitutes an offence. Clause 14.1 also, however, operates directly on cll 2.11 and 4.6, the validity of which is no longer challenged.
126 Thus, the appellant does not challenge the validity of the Local Law insofar as it creates a criminal offence for non-compliance with cll 2.11 and 4.6. This emphasises the narrowness of the challenge to cll 14.13 and 14.18.
127 The appellant’s challenge to the asserted additional effect of cl 14.13 must fail. Clause 14.13 is an aspect of the enforcement regime, which, properly characterised, gives a recipient an opportunity to comply with what the appellant now accepts are constitutionally valid prohibitions. In that sense, the provisions authorising service of a notice to comply based on a reasonable suspicion of contravention do not impose any additional burden at all. What cl 14.13 does is draw to the recipient’s attention a reasonably suspected contravention and give the recipient a chance to avoid engaging in what the issuer of the notice believes will be unlawful conduct. Even allowing for the possibility the Council officer’s suspicion is wrong, and the recipient is at law entitled to engage in the conduct which is the subject of the notice, the notice remains nothing more than an opportunity for the recipient to choose to stop the conduct. If she does not, then the burden — such as it is — arises from the effect of the substantive provisions themselves and the exposure to (on this hypothesis) an unsuccessful prosecution or an (unlawful) infringement notice. The important point is that the burden arises from the effect of cll 2.11 and 4.6.
128 Again, the argument on this point is somewhat artificial when it is clear that the Occupy protestors were not erecting tents for camping purposes because they believed the Local Law entitled them to do so: they had applied for permits and had been refused. It is an obvious inference from the evidence that the Occupy protestors believed their erection of tents contravened the Local Law, a law they objected to and sought unsuccessfully to impugn. Those facts do not alter the proper characterisation of cl 14.13, which is, as the Council submitted, in the nature of an opportunity for a recipient to avoid a contravention of the Local Law being enforced against her. That is not a “burden” for the purposes of the implied freedom, let alone an effective one.
129 Further, remembering that the relevant “operation or effect” for the purposes of the analysis required by Lange 189 CLR 520 (at 567) should be the lawful operation or effect of the provisions in question, the analysis must assume an officer has formed a suspicion reasonably and rationally, on probative material, and with an understanding of the applicable law.
130 This being so, the appellant did not explain what the burden, additional or different to the substantive prohibitions, is said to be. The attempt to separate cl 14.13 from cll 2.11 and 4.6 by a narrow focus on the discretion involved in the issuing of the notices is artificial. The result of issuing a notice to comply to a person not actually camping in a tent (but reasonably and lawfully suspected of doing so) is to require a person only to refrain from that point from doing what the appellant accepts they are validly prohibited from doing, even if the implied freedoms are affected.
131 The second contention of the appellant appeared to be that the primary judge, having found that camping in tents as part of a permanent occupation of public space was a method of political communication adopted by the Occupy movement, should have found that the burden of the enforcement provisions preventing the erection of tents was material, and not proportionate. It was not proportionate, the appellant submitted, because there were substantial impediments to correcting any abuse of power that occurred in issuing the notices:
Recipients of a notice to comply must choose either not to comply with the terms of the notice (and bear the risk, often absent considered legal advice, that they will be unable successfully to collaterally attack the notice in a prosecution) or to discontinue their political communications while bearing the expense and time of judicial proceedings. The latter of those choices must be understood against the critical factual finding of North J that the political communications engaged in by Occupy Melbourne required continuous public presence. Ceasing, even temporarily, while awaiting a court decision would destroy an essential element of the communication. The facts of this case also shows the defects in simply assuming that judicial review will necessarily be effective to protect the constitutionally-prescribed systems: when the notices to comply were sought to be restrained in an urgent application to the Federal Court, the MCC was able to successfully submit that they were spent so there was nothing to restrain.
132 It may be accepted, as the primary judge did, that permanent occupation of public space was a method of political communication adopted by the Occupy movement (not, we add, the only one). Yet to make a submission that the burden of the enforcement provisions on that method of communication is “material” is nothing more than an indirect way of re-agitating the issue of the burden imposed by the substantive provisions, which is not subject to appeal. This contention need not be addressed further.
133 If, contrary to our reasoning, there is a separate and effective burden arising from cl 14.13 (and cl 14.18 as an aid to the effectiveness of cl 14.13), it is one which is reasonably appropriate and adapted or proportionate to the accepted object of the provisions, being the protection, preservation and regulation of the equitable use of the Council’s gardens. As the respondents submitted, the practical operation of the enforcement provisions, distinguished from simply enforcing a contravention, is confined to circumstances where there is a reasonable suspicion, lawfully formed, of a contravention. Giving a person, by notice, an opportunity to cease the suspected contravening conduct on pain of committing an offence if the person refuses to comply with the notice, is a reasonable precautionary measure to take to ensure the protection, preservation and regulation of the equitable use of the Council’s gardens. The circumstances in which the lawfully-formed reasonable suspicion will be wrong in fact and lawful conduct will be affected are, in our opinion, so unlikely that they do not relevantly affect the proportionality of the compliance measures.
134 Insofar as there remains an area of uncertainty, which we accept may be greater in respect of suspected contraventions of cl 4.6 and the display of “advertising signs or other things”, then the compliance scheme as a whole remains reasonably appropriate and adapted to achieve its objectives because those wishing to engage in political communications by the use of “advertising signs or other things” (or camping in tents) may apply for a permit. The lawful exercise of discretion in relation to the permit itself provides a balancing mechanism between various uses of the gardens, but is sufficiently controlled by the need to conform to the purposes for which that discretion was conferred so as to give proper weight to the implied freedom, as the primary judge found. That is especially so when, as the Council submitted, the exercise of the discretion whether to grant a permit is also controlled by the Charter, and the need to consider and act compatibly with the rights in ss 15 and 16 of the Charter.
135 There is no basis, as the appellant’s submissions invited, to diminish the importance of the accepted purpose of the provisions; namely, the protection, preservation and regulation of the equitable use of the Council’s gardens. The nature and end to which the law must be appropriately adapted, as Allsop P observed in Sunol v Collier (No 2) (2012) 289 ALR 128; [2012] NSWCA 44 at [73], may be a relevant factor, but to move from that general proposition to the proposition that the Court, in assessing the second limb of Lange, can decide for itself which kinds of objectives it considers to be more important, thus making some kind of value judgment, is a large step not taken in the authorities on which the appellant relies. At trial, Mr Shears on behalf of the Council gave detailed evidence, which is summarised by the primary judge at [70] - [76] of his reasons, about the values of the gardens, their numbers and range of their uses and users. He was not cross-examined to suggest the values and objectives he explained were insignificant, or of less importance than the Occupy Melbourne protests. If the contest was not had at trial on the evidence, it is difficult to see what material the Court on appeal should draw on to reach its own weighted conclusions about which kinds of uses of the gardens are more important. The authorities on the implied freedom do not require this approach and we do not propose to take it. A similar invitation was rejected by the Full Court in O’Flaherty v City of Sydney Council [2014] FCAFC 56 at [16].
136 Three further matters relied on by the appellant as indicating lack of proportionality should be rejected.
137 Contrary to the appellant’s submissions, in our opinion it is axiomatic that a notice to comply can be reviewed in a court as a matter of urgency, even if an injunction is not appropriate. It would be a straightforward judicial review application: either because the notice is invalid on its face or the precondition of reasonable suspicion is not satisfied. There is no basis to think the Supreme Court of Victoria could not deal with such an issue quickly and effectively, although no person brought such an application in relation to the protests in Treasury and Flagstaff Gardens. Given that the respondents are public authorities and the State itself can be expected to take full account of a court’s decision on lawfulness, if a court were to declare one notice to comply invalid, it would have a consequential effect on other notices already given and on the giving of further notices where the same legal flaw was identified. Similarly, if the Court were asked to review the refusal of a permit, there is no reason to believe it could not accommodate such a review in circumstances of urgency, if satisfied those circumstances were made out.
138 On appeal, senior counsel for the appellant made much of the refusal of interim injunctive relief in this Court, as indicating the ineffectiveness of judicial review and therefore supporting the appellant’s contentions that the enforcement provisions lacked proportionality. Injunctive relief was sought on at least two occasions. The injunctive relief sought before Middleton J was not to restrain the issuing of notices to comply. Rather, mandatory injunctive relief was sought to restrain the Council from taking any action to remove various tents for cooking, eating and sleeping and various signs, or otherwise to enforce the local laws. Middleton J refused to grant such injunctive relief: Muldoon v Melbourne City Council [2011] FCA 1306. His Honour found that (at [6] and [10]):
My main reason for coming to this view is that I do not consider the Court needs to intervene having regard to the position with which it is currently confronted. The Court will be able to accommodate an early hearing of this proceeding so as to determine, finally, the rights and responsibilities of the parties and the competing views which were raised, involving, as they do, constitutional issues and matters of public interest. It seems to me that the Occupy Melbourne protest is able to carry on its activities successfully, although not as successfully as it would immediately like, without the intervention of the Court at this time…. I think it is unrealistic to think that the protest will not therefore constitute a larger number of persons than envisaged by the “minimalist approach” of the orders sought. The protest may then result in, as a consequence, the concerns that were expressed in the affidavit of Mr Francis Khoo on behalf of the Melbourne City Council.
139 Whatever view the appellant might take of the outcome of the interlocutory applications, the fact more than one was made demonstrates that the courts were available and the appellant (or Mr Muldoon) were able to have their arguments heard. The measure of how access to judicial review might affect the proportionality of a measure is not to be ascertained by examining whether those asserting invalidity succeeded once they accessed a court.
140 The availability of enforcement mechanisms other than notices to comply is also no indication of lack of proportionality. Some of the appellant’s suggestions involved changes to the (valid) prohibitions themselves by excluding political communications, using as an example the handbill provisions of the Local Law. These are not true alternatives to enforcement and do not need to be further considered. Other alternatives, such as the issue of infringement notices requiring payment of a penalty or prosecution in default, or prosecution for the contravention, one might think would have a more serious effect on the recipient because there is no opportunity to comply and so avoid prosecution. Those enforcement options also do not necessarily achieve the ends sought, which is to have an immediate effect on an activity reasonably and lawfully suspected to be unlawful. They are not equally practical and effective: Monis 249 CLR 92; [2013] HCA 4 at [145] per Hayne J.
141 Finally, the appellant’s submission that the Local Law might have provided for a defence to breach of a notice or a carve out for political communications conflates the application of the Lange test to the substantive provisions and to the enforcement provisions. Any defence would be a defence to the substantive prohibitions, not to the enforcement provisions. Having chosen not to challenge the substantive provisions, no doubt because Adelaide City Corporation made the prospects of success unlikely, the appellant cannot rely on such matters in relation to the enforcement provisions. That she tries to do so is a further example of the artificiality of the separation she attempts to introduce between them.
6.3.3 The Regulations
142 The constitutional challenge to the Regulations must fail. There was no submission that reg 33 (authorising the giving of reasonable directions to comply) or reg 34(3) (removing a tent or “other structure” placed on a reserve without consent) impose any burden beyond that imposed by the substantive provisions of the Regulations (which, insofar as relevant, prohibit the bringing of tents into the Flagstaff Gardens for camping purposes). The written and oral arguments concerned the Local Law. In the absence of any challenge to the substantive provisions of the Regulations in this appeal, there was no real argument made by the appellants as to how the burden imposed by the regs 33 and 34(3) differed from that imposed by the substantive prohibitions.
6.4 Charter issues (Grounds 2, 3 and 4(c))
143 Grounds 2, 3 and 4(c) of the further amended notice of appeal state:
2. The Court erred in holding that the making of clauses 14.12 to 14.18 and 14.21 to 14.24 of the Local Law for the purposes of or with respect to the enforcement of clauses 2.11 and 4.6 of the Local Law was not incompatible with the human rights to freedom of expression, peaceable assembly and freedom of association declared by sections 15(2), 16(1) and 16(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) because those clauses were both:
(a) demonstrably justified in a free and democratic society based on human dignity, equality and freedom and taking into account the factors prescribed in section 7(2) of the Charter; and
(b) reasonably necessary to respect the rights and reputations of other persons or for the protection of national security, public order, public health or public morality.
3. The Court erred in:
(a) holding that section 38(1) of the Charter could not apply to the making of the Local Law by the first respondent; and
(b) failing to find that the actions, individual or systemic, of the officers of the first respondent taken under the Local Laws in relation to, or in reliance upon, the Notices were unlawful under s 38(1) of the Charter, because they were incompatible with the human rights to freedom of expression, peaceable assembly and freedom of association declared by sections 15(2), 16(1) and 16(2) of the Charter.
4. The Court erred in holding that:
…
(c) the enforcement activities undertaken by the First Respondent and its Relevant persons in the Applicable Area and described in paragraph 3.4 of the Orders sought herein were incompatible with one or all of the human rights to freedom of expression, peaceable assembly and freedom of association declared by sections 15(2), 16(1) and 16(2) of the Charter.
6.4.1 Relevant provisions
144 Central to these grounds is the scope and operation of s 38 of the Charter. It provides:
38 Conduct of public authorities
(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise
under law, the public authority could not reasonably have acted differently or made a different decision.
Example
Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.
(3) This section does not apply to an act or decision of a private nature.
(4) Subsection (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates.
(5) In this section religious body means—
(a) a body established for a religious purpose; or
(b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.
145 The term “public authority” is subject to detailed definition in s 4 of the Charter. There was no dispute however that the Council was a public authority for the purposes of the Charter, and that the acts of its officers could be considered its acts for the purposes of s 38.
146 The rights relied on by the appellant are those contained in ss 15 and 16 of the Charter. They are conferred in the following terms:
15 Freedom of expression
(1) Every person has the right to hold an opinion without interference.
(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether—
(a) orally; or
(b) in writing; or
(c) in print; or
(d) by way of art; or
(e) in another medium chosen by him or her.
(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably
necessary—
(a) to respect the rights and reputation of other persons; or
(b) for the protection of national security, public order, public health or public morality.
16 Peaceful assembly and freedom of association
(1) Every person has the right of peaceful assembly.
(2) Every person has the right to freedom of association with others, including the right to form and join trade unions.
147 By s 7(2) all the rights conferred by Part 2 of the Charter may be subject to reasonable limits under law. It provides:
7 Human rights—what they are and when they may be limited
…
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
…
148 In s 39, the Charter contains a restriction on the bringing of “freestanding” challenges to, amongst other things, the conduct of a public authority, requiring that any challenge also be at least amenable to a challenge to its lawfulness on a basis outside the Charter. It may be that such a challenge also needs in fact to be brought, however that debate about the construction of s 39 need not be determined in this proceeding. Section 39 provides:
39 Legal proceedings
(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—
(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.
(3) A person is not entitled to be awarded any damages because of a breach of this Charter.
(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.
6.4.2 Development of law about the Charter in Victoria
149 Aside from the decision of the primary judge in this proceeding, the Charter has not been the subject of any consideration in this Court. Although it has been the subject of several decisions in the Supreme Court of Victoria, and of an important case in the High Court (Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34), there are many issues fundamental to the construction and operation of the Charter which have not yet been conclusively resolved by judicial determination.
150 One of those issues concerns the role of s 7(2) in the Charter. Does its authorisation of the imposition of limits “under law” on the rights conferred by the Charter condition the approach to s 38(1) of the Charter? There are decisions of single judges of the Supreme Court of Victoria which answer that question affirmatively: see, eg, Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414; [2008] VSC 346 and PJB v Melbourne Health [2011] VSC 327 (Patrick’s case).
151 Four members of the Court in Momcilovic found that s 7(2) conditioned the approach required by s 32 of the Charter: see Momcilovic 245 CLR 1; [2011] HCA 34 at [168] per Gummow J, at [280] per Hayne J, at [426]-[427] per Heydon J, at [683] - [684] per Bell J. However, since Heydon J was in dissent in the outcome (his Honour held the whole Charter to be invalid: at [439]), there is no ratio supporting this proposition.
152 The Court was informed that the Victorian Court of Appeal is currently reserved on an appeal from Williams J (Bare v Small [2013] VSC 129) in a case concerning s 38 of the Charter. The Court was informed that the Court of Appeal is likely to determine the role of s 7(2) in s 38(1) in order to resolve the issues raised on that appeal. We were also informed the Court of Appeal is likely to need to determine another issue raised by the State of Victoria on this appeal: namely, who bears the onus of proving that any limit on human rights is justified within the terms of s 7(2).
6.4.3 The way the Charter issues were raised at trial and the primary judge’s findings
153 At [421] - [422] of his Honour’s reasons, the primary judge set out his understanding of the nature and scope of the applicants’ contentions concerning the Charter. In summary his Honour noted:
The applicants challenged the making of cll 2.11, 4.6 and 14.13 as an “act” to which s 38(1) of the Charter applied, and alleged the making of those provisions of the Local Law was incompatible with the rights in ss 15 and 16 of the Charter; and
The applicants also challenged the actions of Council officers taken under cl 14.13 as contravening s 38(1).
154 The primary judge also noted that the applicants accepted there could be no challenge to the making of the Regulations by reference to the Charter as they were made before the Charter commenced. However, other parts of his Honour’s reasons, and especially [67] - [69], suggest that his Honour understood there was also a challenge to two specific enforcement activities conducted pursuant to the Regulations, by reference to the Charter: namely the removal of a tent being “worn” by Ms Kerrison and the removal of an Occupy Melbourne banner from Flagstaff Gardens, although (as discussed below) these challenges do not appear to have been determined under the Charter. Finally, the primary judge noted a late amendment during closing submissions to rely on the second limb of s 38(1) — namely a failure to take the rights in ss 15 and 16 into account in deciding to undertake the enforcement activities. The primary judge refused leave to the applicants to make this amendment. That refusal was not pursued on appeal and need not be further considered.
155 The primary judge found (at [450]) the permitted restrictions on the rights contained in ss 15 and 16 of the Charter “are not relevantly different from the permitted limitations on the implied freedom of political communication”. Having reached that conclusion, the primary judge referred to his earlier reasoning as to why the Local Laws did not impermissibly burden the implied freedom, and adopted that reasoning in relation to the Charter. The appellant criticises this approach in this appeal, and we return to this issue below.
156 In the alternative, the primary judge stated that he accepted the submissions made by the respondents as to why s 38(1) did not apply to the making of the Local Law, having set those arguments out earlier in his reasons.
157 Finally, the primary judge dealt with some arguments that Victoria Police officers had contravened s 38(1) in arresting protestors and enforcing the notices to comply and the Regulations (including by removing the tent Ms Kerrison was “wearing” on 6 December 2011). The primary judge dismissed these claims on the basis they depended on the contention that the Local Law and the Regulations were invalid, which he had not upheld.
158 There are two omissions from the primary judge’s determination of the Charter issues. The first is the argument he had referred to at [422] of his reasons: namely, the actions of the Council officers in issuing and enforcing the notices to comply, and whether those actions were incompatible with the protestors’ rights under ss 15 and 16 of the Charter. Although his Honour considered and rejected the challenge under s 38(1) to the making of the Local Laws, he does not appear to have considered the actions of Council officers against s 38(1). This is ground 3(b) of the further amended notice of appeal.
159 The second omission is the alleged contravention of s 38(1) by the two “enforcement activities” taken by Council officers against, or involving, Ms Kerrison: namely, the removal of the tent she was “wearing” on 6 December 2011, and the removal of the Occupy Melbourne banner from where it was affixed in Flagstaff Gardens.
160 As we explain below, the appellant is correct to identify the second omission as an appealable error. Insofar as the primary judge erred in not dealing with this claim, we have considered the merits of this claim on the appeal for ourselves: see [210] to [243] below.
161 The first omission is explicable on other grounds, although the primary judge does not say this in his reasons. The appellant’s challenge to the actions of Council officers in issuing, threatening to act upon and enforcing all of the cl 14.13 notices (see paragraph 2 of the declaratory relief sought in the fourth further amended application) was not a challenge the primary judge found she (or Mr Muldoon) had standing to bring in respect of any notices except those issued against her: see reasons at [188] - [189]. At [189] the primary judge noted the principal basis on which the applicants sought to bring this challenge was in their representative capacity, but then found (referring to Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493):
there is no basis upon which the applicants can challenge the individual circumstances of these actions which were not directed to themselves.
162 His Honour then made this statement, about the structure of the remainder of his reasons, which in our opinion explains what otherwise may appear to be omissions from the section of his reasons dealing with the Charter grounds:
Consequently, these reasons for judgment will only consider the validity of the notices to comply issued and the individual enforcement action taken against the second applicant. For reasons which will be explained, the police action in arresting protesters will be considered but only at the general level of validity and not in relation to the circumstances of individual arrests.
163 Thus we reject the submission of the appellant that the primary judge was required but failed to deal with a substantial argument put at trial about the operation of s 38(1) of the Charter in relation to the actions of Council officers in reliance on the 150 notices to comply. His Honour did not need to deal with the substance of it because he had found there was no standing and because of his exercise of discretion under r 9.21 of the Federal Court Rules in relation to the continuation of the proceeding as a representative proceeding.
164 We have found (see [110] above) there was no error in the primary judge’s exercise of discretion under r 9.21. Ms Kerrison thus has no individual or representative standing to maintain the challenge articulated in ground 3(b) of the further amended notice of appeal to the actions of the Council officers in relation to the 150 notices to comply.
165 Since the ground of appeal in 3(b) was expressed in terms of all notices, it would not be appropriate for the Court to rewrite the ground so as to have it apply only to the notices issued to Ms Kerrison. Therefore, it would be inappropriate to consider ground 3(b) further and we do not do so.
6.4.4 What is raised about the Charter by the further amended notice of appeal?
166 There is also confusion in the further amended notice of appeal and submissions about the scope of grounds 2 and 3 of the further amended notice of appeal. On its face, ground 2 extends only to the enforcement provisions of the Local Law, and deals with “the making” of those provisions.
167 Ground 3(a) is directed to the primary judge’s findings about the “making” of the Local Law, without qualification as to the substantive or enforcement aspects of the Local Law. Ground 3(b) is expressly directed at a challenge to the conduct of Council officers in issuing the notices under cl 14.13, and we have already determined this ground cannot be pursued by the appellant in the appeal.
168 The Council’s submissions only address ground 3(b), and deal with the “making” of the enforcement provisions only under ground 2. The State’s submissions assert that both grounds 2 and 3 deal only with the enforcement provisions. The appellant’s submissions (at [45]) refer only to the enforcement provisions as unlawful by reason of s 38(1)). The declaratory relief sought in 3.3.2 of the further amended notice of appeal goes only to the making of cll 14.12 to 14.18 and 14.21 to 14.24: in other words, the enforcement provisions. Thus, despite the breadth of drafting of ground 3(a) in the further amended notice of appeal, all parties including the appellant accepted on appeal that the challenge under s 38(1) of the Charter was only to the making of the enforcement provisions.
169 The State does not address ground 4(c) at all, and the Council only briefly. However this ground is one which the Court must consider for itself, since the primary judge erroneously failed to do so.
6.4.5 Approach to section 38(1) and section 7(2)
170 During oral submissions at the hearing of the appeal, senior counsel for the appellant contended for the first time that her primary submission about the nature and scope of s 38(1) was that the phrase “incompatible with a human right” was not conditioned by s 7(2) of the Charter. On this argument the phrase “incompatible with a human right” is to be construed as involving only compatibility as between the impugned act and the terms and content of the rights conferred in ss 15 and 16, without any assessment of whether the way the impugned act limits those rights is demonstrably justified in accordance with s 7(2). This was the approach to s 32(1) taken by French CJ in Momcilovic 245 CLR 1; [2011] HCA 34 at [35]. Senior counsel submitted the appellant wished to preserve this argument for any appeal and, when pressed, submitted the appellant contended French CJ’s approach was the correct construction of ss 32(1), and 38(1).
171 As the respondents submitted, the competing contentions about the role of s 7(2) in s 32(1) and s 38(1) involve the proper construction, across the Charter, of the terms “compatible” and “incompatible”. The respondents’ submission is consistent with the reasoning of Gummow, Hayne, Heydon and Bell JJ in Momcilovic, and with the Victorian Supreme Court decisions in Sabet 20 VR 414; [2008] VSC 346 and Patrick’s case [2011] VSC 327. They submit the concepts of “compatible” and “incompatible” recognise that human rights are not absolute, need to be balanced against one another and may need to be limited. In Momcilovic 245 CLR 1; [2011] HCA 34, Bell J said (at [681]-[683]):
One reason for concluding that compatibility with human rights for the purposes of the Charter is to be understood as compatibility with the rights as reasonably limited under s 7(2) is the improbability that the Parliament intended to make unlawful the demonstrably justified acts of public authorities which happen to reasonably limit a Charter right. Contrary to the Centre’s submission, s 38(2) will not always be engaged to protect a public authority in such a case.
…The Centre acknowledged in its written submissions that “[n]one of this is to say that the rights are absolute; the scope of some of the rights is expressly limited and they must, in any event, be read together”. However, if s 7(2) does not inform the interpretive function, there is no mechanism for the court in interpreting statutory provisions in a rights compatible way to recognise the need for rights to be read together. As the Centre’s submission noted, some Charter rights are subject to express limitations. Consideration of whether a statutory provision is compatible with the right of freedom of expression must require determination of whether any apparent limitation is a reasonably necessary limitation within s 15(3) of the Charter. It is a task that may be thought to be of the same character as the determination of whether an apparent limitation on the right of peaceful assembly is demonstrably justified within s 7(2).
The Victorian Attorney-General’s submission that the question of justification in s 7(2) is part of, and inseparable from, the process of determining whether a possible interpretation of a statutory provision is compatible with human rights should be accepted. It is a construction that recognises the central place of s 7 in the statutory scheme and requires the court to give effect to the Charter’s recognition that rights are not absolute and may need to be balanced against one another. The point is made by Blanchard J in Hansen:
“It would surely be difficult to argue that many, if any, statutes can be read completely consistently with the full breadth of each and every right and freedom in the Bill of Rights. Accordingly, it is only those meanings that unjustifiably limit guaranteed rights or freedoms that s 6 requires the Court to discard, if the statutory language so permits.” (emphasis in original)
172 As we have observed, given Heydon J found the entire Charter to be invalid, his Honour’s endorsement of this approach cannot form part of the ratio of the decision as it was not a necessary conclusion to support the orders of the case, from which his Honour dissented: see Federal Insurance Ltd v Wasson (1987) 163 CLR 303 at 314 per Mason CJ, Wilson, Dawson and Toohey JJ. Thus, there is no majority of judges in Momcilovic who express a general rule of law about the relationship between ss 32 and 7(2) which can be characterised as the reason for the Court’s decision: see Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 4) (2010) 268 ALR 108; [2010] FCA 482 at [136]-[137] per Rares J and the authorities there referred to. We note further that, in any event, Momcilovic did not concern s 38 and it would be difficult to see how, even if the Court’s orders were supported by a majority in favour of a rule of law about the relationship between ss 7(2) and 38(1), there could be said to be anything binding on this, or other courts, about the construction of s 38(1).
173 Until oral submissions, there was no dispute between the parties that the approach outlined by Bell J was the correct construction of s 38(1), read taking into account the context and purpose of Part II of the Charter and the Charter as a whole. Ground 2 of the further amended notice of appeal is expressly premised on s 7(2) forming part of the assessment whether the Council’s acts were incompatible with the appellant’s human rights in ss 15 and 16. Further, in her written submissions on the appeal, the appellant submitted (at [48]):
An act is “incompatible” with a human right if it limits the right otherwise than in accordance with s 7(2) of the Charter.
174 The footnotes accompanying this submission referred to the judgment of Bell J in Momcilovic, as well as to the judgments of Gummow J (Hayne J agreeing) and Heydon J. The footnote then stated “Compare 43 [32] (French CJ).”
175 We agree with the respondents that the appellant should not now be able to rely on a construction about s 38 different to that put forward at trial, which the primary judge accepted and acted on, and from which she has not appealed. More than that, the appellant should not opportunistically be able to resile from the position adopted in her further amended notice of appeal and written submissions. In other words, the appeal should proceed on the basis agreed by all parties below and prior to the hearing of the appeal, namely that the term “incompatible” in s 38(1) is to be understood as a conclusion reached after the application of s 7(2) to the limits said to have been placed on the exercise of the human right.
176 Any other position places the Court in a difficult position, given full argument has been put in Bare before the Victorian Court of Appeal on the correct approach to s 38(1), and how the various analyses in Momcilovic (which was about s 32 of the Charter, not s 38) are to be applied to an analysis of s 38. Full argument was not addressed to the Court on this appeal, and certainly the Court did not have the benefit of submissions from, for example, the Victorian Human Rights and Equal Opportunity Commission. The Commission has a statutory right of intervention under s 25 of the Charter, but would not have been on notice that this construction issue was in dispute because, on the appellant’s material until the hearing of the appeal, it was not.
177 The whole approach of the primary judge to the Charter issues was informed by the parties’ agreement that s 7(2) formed part of the process of assessing whether an act was “incompatible” with human rights. It was the basis of his Honour’s finding, for example, that the exercise in relation to the implied freedom and the Charter were relevantly similar. That factor, combined with the other matters we have referred to in [173] - [174] above means it is not in the interests of the administration of justice to permit the appellant now to argue that the Court should adopt the approach of French CJ in Momcilovic and assess whether the making of the Local Law, and the conduct of the Council’s officers, limited her human rights as they are expressed in ss 15 and 16 of the Charter, without regard to whether those limits were justifiable in accordance with s 7(2). The principles in Coulton v Holcombe (1986) 162 CLR 1 at 7 - 8 are applicable.
6.4.6 Making of the Local Law
178 All parties accepted the Council was a “public authority”, within the meaning of s 4 of the Charter. In that sense, s 38 applies to a Council, and the constructional choice concerns the breadth of the verb “to act”.
179 The appellant’s argument was that on the “plain meaning” of the word “act” as a “thing done”, the making of a local law by a Council is within the term. The first textual observation to make about s 38(1) is that the word used is a verb, not a noun. The appellant’s construction incorrectly treats the words in s 38(1) as a noun and not a verb. The significance of this is discussed at [187] below. The appellant rejected the contentions of the respondents about any disconformity with other parts of the Charter (specifically, ss 32(3) and 36(5)), submitting that those provisions are “structurally distinct”, in the sense that Divs 1 and 3 of Part 3 (dealing with scrutiny of legislation and interpretation of laws) are quite separate from Div 4 which deals with obligations of public authorities. The appellant also submitted that the Council’s making of a local law is reviewable for lack of power and therefore within the terms of s 39 of the Charter. Senior counsel for the appellant submitted that s 32 of the Charter also applies to the construction of s 38 of the Charter itself, and that to give s 38(1) a construction which excluded from the operation of s 38 the most obvious activities of local Councils — making of local laws — would be to significantly cut down the scope and operation of s 38 in a way which would not be compatible with human rights.
180 The most obvious problem for the appellant with this ground is her failure to challenge the primary judge’s finding that s 38(1) did not apply to the making of cll 2.11 and 4.6. That finding was expressed at [451] of the primary judge’s reasons in the following terms:
It is therefore unnecessary to decide whether s 38 of the Charter applies to legislative acts of the Council. Were it necessary to do so I would accept the arguments of the Council and the Attorney-General that the section does not apply to such acts.
181 No distinction is made by the primary judge between the substantive and enforcement provisions and logically on this argument none could be. Either s 38(1) extends to the making of all parts of the Local Law or it does not. The primary judge held the latter and the appellant is not able on appeal to slice that finding into two parts and challenge only one of those parts.
182 If we are wrong in that approach, whether or not the challenge is to cll 2.1 and 4.6 as well as cll 14.13 - 14.21, we would in any event reject the appellant’s contention that s 38(1) extends to the making of by-laws by a Council pursuant to s 111 of the Local Government Act. In our opinion the making of a subordinate instrument by a public authority is not comprehended by the phrase “to act in a way” in s 38(1). The construction we adopt of s 38(1) applies not only to a Council as a public authority but to any other “public authority”, as that term is defined in s 4 of the Charter, which might be empowered to make a subordinate instrument. Central to that approach is the use throughout the Charter of the defined term “statutory provision”.
183 “Statutory provision” is defined in s 3 of the Charter to mean “an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter) or of a subordinate instrument”.
184 Local Laws made under s 111 of the Local Government Act are subordinate instruments for the purposes of the Interpretation of Legislation Act 1984 (Vic): see s 118 of the Local Government Act. They are not, however, legislative instruments for the purposes of the Subordinate Legislation Act 1994 (Vic): see s 3 of the Subordinate Legislation Act. Nor are they statutory rules for the purposes of the Subordinate Legislation Act: see s 3 again. The effect of s 3 of the Subordinate Legislation Act not including local laws in those two definitions is that the human rights compliance framework established by Parts 2 and 2A of the Subordinate Legislation Act does not apply to the making of local laws. To some extent this is a matter which might otherwise favour the appellant’s argument because the framework established by the Charter for assessing the human rights compatibility of legislative acts (whether through s 28 of the Charter or through Parts 2 and 2A of the Subordinate Legislation Act) does not apply to local laws. This seems however to be an express legislative choice by the Victorian Parliament, in exempting local laws from the operation of Parts 2 and 2A of the Subordinate Legislation Act.
185 In Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, the High Court identified (at [43]) the objective of statutory construction as
giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have. … The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.
186 In Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257; [2012] HCA 55 at [39], citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47], the High Court reiterated the modern approach to construction of statutes in pursuit of that objective:
“This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
187 Beginning with the text of s 38 itself, the use of the verb “to act”, in contradistinction to the use of the phrase “in making a decision”, suggests that the focus of s 38(1) is on conduct. The inclusive definition in s 3 (namely that “act” includes a failure to act and a proposal to act) supports a construction focused on conduct. Whether or not “to act” is also to be understood as including the making of a decision, so that the second limb of s 38 imposes an additional rather than independent requirement on decision-makers who are public authorities, is not a matter we need to decide for the purposes of the resolution of this appeal. Even if the second limb is seen as an additional requirement, the passage of a local law by a council, or the making of another kind of subordinate instrument by another kind of public authority, is also not aptly described as the “making of a decision”. The passage of a set of rules with a broad or general operation, to be applied in the future, is a function of a different nature: Commonwealth v Grunseit (1943) 67 CLR 58 at 82 per Latham CJ; Minister for Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325 at 331; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 634 - 636 per Gummow J; Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority (2012) 209 FCR 518; [2012] FCA 1205 at [65]-[66] per Kenny J.
188 Section 38(2) renders s 38(1) inapplicable in certain circumstances. Its terms are relevant to the construction issue under consideration. Subsection (2) provides:
Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
189 The terms of this subsection support the observation we make at [187] above that conduct engaged in pursuant to a local law is intended to be caught by s 38(1), rather than the making of the law itself. It is difficult to conceive of how subs (2) could apply to the making of a statutory provision itself, yet its role in the scheme is to create an exception from s 38(1). This context suggests s 38(1) is not intended to apply to a statutory provision itself. More importantly, what this subsection contemplates is that the law itself may be incompatible with a Part II human right or rights, and intended to be so (in the sense that no other construction consistent with its purpose is available under s 32 of the Charter). In that case, the Charter does not intend s 38(1) will operate: it preserves the authority of those who make the law to make laws incompatible with Part II human rights, provided the necessary transparency and clarity which the Charter, and the common law, otherwise requires is met. It is to those processes for transparency and clarity to which we now turn, for they also support the construction we adopt of s 38(1). For the moment it is important to note that s 38(2) uses the term “statutory provision”.
190 The Charter adopts the term “statutory provision” as its governing concept when it deals with the law itself, other than the common law. Where the Charter intends to encompass all sources of law, including but not limited to legislative sources, it simply uses the term “law”: see, eg, s 7(2) and the phrase “under law”, which includes statutory and common law.
191 There are two principal aspects of the Charter that deal with statutory provisions. One concerns the interpretation of statutory provisions: see Div 3 of Part 3, including s 32, the key interpretative obligation in the Charter. The other concerns the scrutiny of new legislation, and Parliament’s ability to make an “override declaration”: see Divs 1 and 2 of Part 3.
192 The mechanism chosen by the Charter to ensure there is transparency and accountability about the impact of Acts of Parliament on human rights is the requirement for statements of compatibility for Bills introduced to Parliament: see s 28. These statements allow for the possibility a Bill may be incompatible with human rights (again, we take the use of the terms “compatible” and “incompatible” to involve an assessment of whether any limits on rights are demonstrably justified in accordance with s 7(2) of the Charter). The member who introduces the Bill is to make a statement to that effect if that is her or his opinion, and state the nature and extent of any incompatibility: see s 28(3)(b). In terms repeated elsewhere in the Charter, s 29 provides that a failure to comply with s 28 “does not affect the validity, operation or enforcement of that Act or of any other statutory provision”. By s 30, together with s 21 of the Subordinate Legislation Act, all Bills and statutory rules are also subject to scrutiny and reporting by the Scrutiny of Acts and Regulations Committee in relation to their incompatibility with human rights. As we noted above at [184], this does not extend to local laws.
193 A more emphatic (but exceptional) tool available to Parliament is an “override declaration” under s 31. As the terms of its heading suggest, s 31 empowers the Victorian Parliament to declare that the Charter has no application to a particular Act, or a provision of an Act: see s 31(1) read with s 31(6). In those circumstances, the interpretative obligation in s 32 does not apply, nor does s 38(1).
194 Division 3 deals with interpretation. The interpretative obligation in s 32 operates on “all statutory provisions”, relevantly for the present proceeding including the Local Law. The terms of s 32(3) were relied on by all parties in argument. The subsection preserves the “validity” of an Act, a provision of an Act, a subordinate instrument and a provision of a subordinate instrument if it is incompatible with a human right. The Charter does not intend that such incompatibility, where a Court finds it, will go beyond the terms of s 36 of the Charter, which empowers the Supreme Court (and only that Court) to grant a declaration of inconsistent interpretation, putting Parliament and the executive on notice that it has concluded that a particular statutory provision cannot be interpreted consistently with a human right. Other courts and tribunals are given a referral power by s 33 of the Charter so that the Supreme Court can interpret a statutory provision where necessary and, if the occasion arises, issue a declaration under s 36. We note that s 36 was found by the High Court in Momcilovic to confer something other than judicial power and, although found valid by a majority of the Court (French CJ, Kiefel, Crennan and Bell JJ), is therefore not a power exercisable in federal jurisdiction.
195 For present purposes, s 32(3) is the first of two clear indications that this is not a legislative scheme intended to empower the Supreme Court (or any other Court) to invalidate a statutory provision because of an interpretative conclusion which renders the provision incompatible with a Part II human right.
196 The appellant submitted that s 32(3) was by the use of its introductory words “[t]his section” restricted to a qualification on the task in subs (1), and it preserved the applicability of s 38(1) to the making of statutory provisions. While its restricted operation can be accepted, in our opinion its purpose in preserving the validity of statutory provisions, read with the evidence of a similar purpose in other parts of the Charter, is what informs the construction of s 38(1). For the latter provision to be construed as rendering ineffective (to use a neutral term, avoiding the unlawfulness/invalidity debate for the moment) that which s 32(3) seeks to preserve would introduce a disconformity to the operation of the Charter.
197 Section 36 contains the second clear example of the Victorian Parliament’s intention that the operation of a statutory provision should not be affected by a finding of incompatibility with a Part II human right. Subsection 36(5) expressly provides that a declaration of inconsistent interpretation does not “affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made”. It should be noted that the sphere of express preservation extends here beyond validity to operation and enforcement. It thus encompasses the distinction drawn, for example, by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [100] between invalidity and unlawfulness, where the Court contemplated that “an act done in contravention” of a statutory provision could be a breach of the relevant statute and “therefore unlawful” (but not invalid), entitling a person affected to both declaratory and injunctive relief in an appropriate case. The purpose of s 36(5) is to preserve Parliament’s entitlement to make laws which are incompatible with Part II human rights, and its entitlement also to authorise (expressly or impliedly) the making of subordinate legislation which is incompatible with Part II human rights.
198 Through ss 28, 32 and 36 it can be seen the Charter intends to preserve the ability of lawmakers, at both primary and subordinate levels, to make laws which when properly construed (even through the prism of s 32) are incompatible, and operate incompatibly, with Part II human rights. That being one of the key purposes of the Charter, it would introduce disconformities and inconsistencies into the operation and effect of the Charter to construe s 38 as extending to the making of subordinate legislation. There would be no rational basis to confine that extension to local councils — it would apply to any individual or entity who fell within the definition of public authority and made a subordinate instrument, within the broad meaning of that term in s 38 of the Interpretation of Legislation Act.
199 This purposive consideration, together with the textual matters to which we have referred at [187]-[190] above, lead us to conclude that the making of a subordinate instrument by a public authority is not comprehended by the phrase “to act in a way” in s 38(1).
200 One of the contextual reasons we consider this construction correct is that it is consistent with the purpose of s 38(1) in regulating the way in which public authorities discharge their functions, by requiring they do so compatibly with human rights. Where, to take the current example, a Council officer engages in conduct pursuant to a local law, that officer’s conduct may still be caught by s 38(1) — as the issuing of notices under cl 14.13 is, the respondents accepted, “to act” within the meaning of s 38(1). We say “may” because there is a real question whether, if by reason of s 32(3)(b) the empowering legislation is construed as authorising the making of a subordinate instrument which is incompatible with a human right and that subordinate instrument is valid, s 38(1) can render conduct carried out in reliance on that subordinate instrument unlawful. The answer will lie in the terms of s 38(2), and the breadth of that exception. The State (but not the Council) fleetingly contended that s 38(2) applied to the conduct of the Council officers in issuing the notices to comply under the Local Law. The submission was not developed and we do not consider this matter further.
201 The appellants submitted that the construction of s 38(1) for which they contended was supported by two similar United Kingdom decisions. The State submitted there was no similarity at all. We agree with the State’s submissions.
202 Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700; [2013] UKSC 39 concerned measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by Bank Mellat, which was a major Iranian commercial bank. The measures were said by Treasury to be on the account of its alleged connection with Iran’s nuclear weapons and ballistic missile programs. The measures were imposed by way of an instrument made under the Counter-Terrorism Act 2008 (UK) c 28. The instrument in question was a statutory instrument embodying a Direction from the Treasury under s 62 and Sch 7 of the Counter-Terrorism Act. The object and effect of the Direction was to shut the bank out of the UK financial market. As Lord Sumption pointed out at [46], although in form a legislative instrument, in character this Direction was not legislative but rather a “command” and thus the application of a “discretionary legislative power to Bank Mellat and IRISL and nothing else”. The mechanism for review by the courts in Bank Mellat was s 63 of the Counter-Terrorism Act, which provided for judicial review of decisions made under that Act and empowered the Court to set aside a “decision of the Treasury”, which the Court held the Direction to be. Accordingly, the equivalent provision in the Human Rights Act 1998 (UK) c 42, s 6(1) and its requirements of proportionality, were considered applicable. The observations of Lord Sumption at [43] on which the appellant relied must be seen in that context.
203 Here, the Local Law is clearly legislative in character and that is the underlying reason we see it, being a “statutory provision” for the purposes of the Charter, as outside s 38(1).
204 The second comparative case relied on was Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23. This case involved a challenge to legality of para 7(2)(f) of the Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007. The following extracts from Lord Laws’ judgment in Tabernacle at [2]-[7] summarised the circumstances of that case:
The appellant is a long-time member of the Aldermaston Women’s Peace Camp (the AWPC). The AWPC protest against nuclear weapons. They do so in the vicinity of the Atomic Weapons Establishment at Aldermaston (the AWE). They have camped on land at Aldermaston, most recently in an area owned by the respondent Secretary of State within what the 2007 Byelaws call “the Controlled Areas”. Paragraph 7(2)(f) of the 2007 Byelaws prohibits camping in the Controlled Areas from which, therefore, it bans the AWPC. The question in the case is whether this prohibition violates the appellant’s right of free expression guaranteed by Article 10 of the European Convention on Human Rights (the ECHR).
…The camp has been going for some 23 years. The women assemble on the land for the second weekend of each month. They stay from Friday evening until Sunday morning. They hold vigils, meetings and demonstrations, and hand out leaflets. Their protest is and always has been entirely peaceful.
The land occupied by the AWE includes what are called the Protected Areas and the Controlled Areas. Public entry into the Protected Areas, where the actual Research Establishment is situated, is forbidden. However the public has free access to the Controlled Areas, and it is there, as I have indicated, that the AWPC foregathers each month. We were told that the Controlled Areas have been open to the public at least since 1986.
…Paragraph 7(2) of the 2007 Byelaws opens with the words “No person shall within the Controlled Areas …”, and there then follow twenty prohibited acts, listed under (a)-(t). I should read paragraph 7(2)(f), (g) and (j):
“(f) camp in tents, caravans, trees or otherwise; …”
205 At [11] Lord Laws stated:
It is of course common ground, having regard to s.6 of the Human Rights Act 1998 which I need not read, that in framing paragraph 7(2)(f) of the 2007 Byelaws the Secretary of State was obliged to respect the Article 10 rights of persons potentially affected by the prohibition thereby enacted. It is clear that paragraph 7(2)(f) constitutes in practice an interference with the rights of the AWPC pursuant to Article 10(1). So much is also common ground. The ultimate question in the appeal, therefore, is whether this byelaw is nevertheless justified by any of the considerations in Article 10(2).
206 The challenge to the by-law in Tabernacle succeeded, the Supreme Court finding that the limit it imposed on the protestors’ right to freedom of expression was not proportionate.
207 As the State pointed out there was no analysis in that case of how it was that s 6(1) was said to apply, but rather an assumption was made that it did. As the State also submitted, there is no equivalent in the Human Rights Act of s 32(3)(b) of the Charter, which specifically relates to subordinate instruments. The broad equivalent in the Human Rights Act to s 36(5) is s 4(6), but it is important to note that the whole of s 4 of the Human Rights Act only applies to “primary legislation”, which does not include subordinate instruments.
208 Ultimately, our view is based on a construction of the scheme of the Charter as a whole, and in particular the central concept of “statutory provision”. The limits we discern on s 38(1) arise from the Charter itself and the comparative decisions on s 6(1) of the UK Human Rights Act do not persuade us to the contrary, taking into account the textual differences and the finding in Bank Mellat about the nature of the Direction from Treasury.
209 Grounds 2 and 3(a) must fail. As we have already found, ground 3(b) is not available to the appellant because she has no standing, and this proceeding is no longer a representative proceeding. Further, it is inappropriate for the Court to redraft ground 3(b) so as to apply only to the actions of the Council officers against Ms Kerrison in relation to the nine notices issued to her. As the Council submitted, there is no separate and identifiable evidence about the actions of the Council officers on those nine notices and the asserted impact on Ms Kerrison’s ss 15 and 16 human rights.
6.4.7 Enforcement under the Regulations
210 Therefore, the only other Charter issue arising on appeal is what was called in the fourth further amended application the “enforcement activities” in Flagstaff Gardens. This is the matter which we accept the primary judge should have dealt with, but did not.
211 Declaratory relief was sought in relation to “conduct described in paragraphs 93 to 99 of the affidavit of the Appellant affirmed on 14 December 2011 and paragraphs 34 and 60 of the affidavit of the Appellant on affirmed on 6 March 2012”. The identified paragraphs deal with two events. The paragraphs in the 2011 affidavit and paragraph 60 in the 2012 affidavit deal with an event on 6 December 2011, where a tent in which Ms Kerrison had slept, but then, in protest, modified so she could move around in it and “wear” it, was removed from her by police officers, with Council officers giving directions. Paragraph 34 in the 2012 affidavit deals with directions given to Ms Kerrison to remove an Occupy Melbourne banner which was tied to some railings in Flagstaff Gardens. Senior counsel for the appellant submitted that specific incidents were selected and then a “line in the sand” was drawn about the number of individual incidents to be challenged. Whatever the explanation for the forensic judgment made, the fact is that this aspect of the proceeding, and the Charter issues raised by it, concerned only those two incidents.
212 Both of these events occurred in Flagstaff Gardens, in circumstances where, all parties agreed, it was no longer the Local Law that was being enforced, but rather the provisions of the Regulations and in particular regs 18 and 21. It will be recalled that reg 33 imposes an obligation on a person to comply with “any reasonable direction of an Appointed Officer” and reg 34(3) authorises an Appointed Officer to remove, or cause to be removed, amongst other things a tent or “other structure” which has been placed on a reserve without consent. The provision for the seeking of consent or approval is set out in reg 32. No consent or approval was sought under the Regulations by the protestors.
213 The respondents accepted that the giving of directions pursuant to regs 18 and 33 was within the meaning of the phrase “to act in a way” in s 38(1) of the Charter. The appellant did not rely on the second limb of s 38(1) (the making of a decision and the associated considerations requirement). Rather, ground 4(c) of the further amended notice of appeal alleged the primary judge had erred in failing to find that these two “enforcement activities” were incompatible with the human rights in ss 15(2), 16(1) and 16(2).
214 Given the conclusions we have reached about the representative proceeding issue, and the refusal of leave to amend the notice of appeal to challenge the primary judge’s findings about standing, the ground of appeal can refer only to whether those enforcement activities limited, disproportionately, Ms Kerrison’s human rights in ss 15(2), 16(1) and 16(2).
215 It is also not necessary to resolve the contentious issue of onus in relation to the operation of s 7(2) of the Charter. The State submitted, as it has in Bare currently reserved before the Court of Appeal, that the person alleging conduct limits human rights bears the burden of showing those limits are disproportionate in accordance with s 7(2). The State relied on Vines v Djordjevitch (1955) 91 CLR 512 at 519 - 520 to support this argument. The State’s argument is contrary to single judge decisions in the Supreme Court of Victoria such as Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [147] per Warren CJ, and Patrick’s case [2011] VSC 327 at [310] per Bell J. It is also contrary to the weight of comparative decisions on proportionality approaches in other bills of rights: see, eg, R v Oakes [1986] 1 SCR 103 at 139; Bank Mellat [2014] AC 700; [2013] UKSC 39 at [73] - [74] per Lord Reed. Lord Reed was in dissent on the outcome in Bank Mellat, but the other Lords agreed with him on this point, demonstrating this proposition is well-established in the UK: see at [20] per Lord Sumption (with whom Baroness Hale, Lord Kerr and Lord Clarke agreed), at [166] per Lord Neuberger. See also Nicklinson v Ministry of Justice [2014] 3 WLR 200; [2014] UKSC 38 at [167] - [168] per Lord Mance); Schubert v Wanganui District Council [2011] NZAR 233; [2011] NZHC 48 at [106] per Clifford J; Hansen v The Queen [2007] 3 NZLR 1; [2007] NZSC 7 at [103] per Tipping J.
216 Whether it is described as the Council discharging the burden of demonstrating the actions of the council officers were proportionate (as the appellant would have it), or as Ms Kerrison failing to discharge the burden of showing the actions were disproportionate (as the State would have it), when the Court is examining on appeal the evidence as it existed at trial and considering the arguments now put about that evidence, the matter can be resolved without resort to questions of onus or burden. In our opinion where an important legal issue under the Charter is currently reserved before the Victorian Court of Appeal, unless it were necessary to determine the matter in order to decide an issue on the appeal, this Court should refrain from expressing any opinion on it.
217 The focus in argument on the appeal was on the first incident involving Ms Kerrison and the tent. The appellant invited the Court to watch the video of this incident which was exhibited to Ms Kerrison’s affidavit and the Court did so. It is fair to say the manner in which the power in reg 34(3) was exercised to remove the tent from Ms Kerrison does not reflect well on the Council or Victoria Police. The choice to exercise the power conferred by the Regulations in those circumstances may not have been the most appropriate choice. Those observations say nothing about the lawfulness of the Council and police conduct but simply reflect what we consider might be the reaction of many members of the community on seeing that video.
218 At trial, the appellant expressly elected to discontinue any allegations against the police officers involved in the removal of the tent from her person. It was never clarified in argument on the appeal whether the appellant alleged it was Victoria Police officers who removed the tent and the Council officers “caused” it be removed, or whether she alleged it was Council officers who removed the tent directly, or a combination. Rather it was generally asserted that the removal for the purposes of reg 34(3) meant Council officers acted in a way which was incompatible with Ms Kerrison’s human rights under ss 15(2), 16(1) and 16(2) of the Charter.
219 It is possible to read the primary judge’s summary conclusion at [78](7) as also covering these arguments. The primary judge expressly refers to the relief sought under ground 4A of the 4th further amended application, and the evidentiary basis relied on, at [67] of his reasons. He briefly refers to the removal of the tent from Ms Kerrison at [63] and [68] of his reasons. He also briefly refers to the removal of the banner at [69] of his reasons. Unlike the other Charter matters, however, there is nothing in that part of the primary judge’s reasons where he considers the Charter arguments ([450] - [453]) about this claim, or about enforcement under the Regulations. The primary judge deals only with the Local Law in this part of his reasons. That focus is also apparent in the preceding sections where the primary judge recites the parties’ submissions about the Local Law only. There is one part of the primary judge’s reasons where he notes (at [424]) the applicants’ concession that the Charter could not apply to the making of the Regulations as they were enacted prior to the Charter. It is possible this caused his Honour to overlook the applicants’ separate argument about the Charter based on the Council officers’ conduct.
220 Whatever the explanation, the appellant is correct to submit that the primary judge did not deal with an argument she had made and maintained at trial. Unlike the notices arguments, the respondents accepted that the appellant had made and maintained a Charter argument about these two incidents at trial in the same terms as she put the argument on appeal. The State did not deal with this argument in written submissions, and the Council simply submitted that
the appellant’s evidence concerning the particular enforcement actions in Flagstaff Gardens was also vague and incomplete. The appellant failed to discharge her burden to prove: the relevant enforcement actions; the relevant circumstances of the enforcement action and whether the enforcement action imposed any limitations upon her rights under the Charter, and those who she sought to represent.
221 The appellant’s invitation to the Court to watch the video meant there was an increased focus in argument on the appeal on this incident. However in common with other aspects of the appeal, there was a lack of detail in the submissions about the evidence the appellant sought to have the Court rely on to make the findings she sought on the appeal. The Council produced, towards the end of the appeal and in consultation with the appellant and the State, a bundle said by all parties to represent the evidence available at trial about this incident.
222 That exercise having been undertaken, and the Court having identified error in the primary judge’s judgment (by his failure to reach any conclusion on this argument), this Court is in as good a position as the primary judge to make findings on the appellant’s claim under s 38(1) of the Charter. We do so on the basis (as we have earlier stated) that s 7(2) informs the Court’s assessment of when a public authority acts in a way which is incompatible with a human right.
223 We make the following findings based on that evidence. Much of this account is drawn from the affidavit evidence of Peter Anthony O’Neill sworn 17 February 2012. At the time, he held the rank of Superintendent within Victoria Police, and was not cross-examined at trial.
224 In the afternoon of 4 December 2011 (that is, two days before the incident relied upon), Council officers and police observed three tents had been erected in Flagstaff Gardens. Protestors were observed to be inside the tents with holes cut out to enable their heads, arms and legs to protrude. They started to run around the Council and police officers displaying a banner. No action was taken against them on this occasion. The following morning, and after receiving legal advice that they could proceed by way of directions under the Regulations rather than by notices to comply under the Local Law, Council officers agreed with Victoria Police that Council officers would adopt the approach of requesting removal of the tents and structures and, if not removed within a reasonable time (for example 10 minutes for a standard tent), Council officers would take action and confiscate the property. The role of Victoria Police was to support Council officers in exercising their powers under the Regulations, to ensure safety and keep the peace, although it was contemplated arrests may need to be made to achieve these objectives.
225 In the afternoon of 5 December 2011, 15 protestors were observed in Flagstaff Gardens with six tents erected, three of which were being “worn” by three protestors. None were secured to the ground. Council officers served a notice to comply under cl 14.13 and at least one tent was removed without incident. Police did not physically assist the Council officers in that removal.
226 A little later, there were some protestors still “wearing” tents. Council officers informed them the tents would be seized. A Victoria Police officer spoke to Ms Kerrison, who was also “wearing” one of the tents at this time. Superintendent O’Neill’s evidence was:
At the time of 5 December 2011, Sergeant Hinton spoke to Ms Sara Kerrison who was wearing a ‘tent costume’ at the time and who claimed she was naked underneath. Ms Kerrison told Sergeant Hinton that if an attempt was made to remove her ‘clothes’, she would claim she had been sexually assaulted and would be represented by her solicitor, Megan Fitzgerald.
227 Legal advice was sought about Ms Kerrison’s claim, and then throughout the evening of 5 December 2011 various discussions occurred between the police, Council officers and protestors (including Ms Kerrison). Ms Kerrison claimed to be homeless and have no clothes. She (and other protestors who made the same claim) were offered clothes, blankets, and transport to the Salvation Army premises to collect clothing. It appears none of the invitations were accepted. Ms Kerrison and the other protestors were warned throughout the evening that the tents they were “wearing” would be removed as having a tent in the gardens without consent was not allowed. Ms Kerrison and the other protestors refused to remove the tents.
228 In the early hours of 6 December 2011 (around 1am) Council officers enforced the removal of a tent in relation to a male protestor who was sleeping in it and refused to get out of it: indeed, he zipped himself inside the tent. He was arrested and the tent removed. By around 7.30am there were four dome tents erected in the gardens. Council and police officers approached the area where the tents were erected, read out a statement that they were under a legal obligation to remove the tents. After 10 minutes, when the tents were not removed, Council officers seized two empty tents without incident. A third, in which a man was sleeping, was seized after he voluntarily left the tent.
229 That left the dome tent in which Ms Kerrison had been sleeping. She stood up through an opening in the top of the tent, shouted that the tent was her clothes, she did not consent to being undressed, and that this was sexual assault. She refused to leave the tent, or to remove it. On the basis she had asserted she was not wearing anything underneath the tent, she was asked to put on a set of blue police overalls. She refused. Police and Council officers then encircled her and two female police officers removed the tent which, because of the practical difficulties in doing so, involved using a knife to cut some of the knots holding the tent around Ms Kerrison. Once the tent was removed it was confiscated. Ms Kerrison remained on the ground, with her sleeping bag around her, the unused police overalls next to her, shouting she had been sexually assaulted.
230 In cross-examination, Ms Kerrison agreed she had remained many nights in the gardens without a tent. She also said it was “impossible to be there without tents when it was pouring down rain”. She admitted laying down in the tent, and spending the night in it, on the night of 5 December 2011, and said she had a blanket. She said she didn’t sleep the entire night because of the patrols by Council officers, and the fact she and other protestors stood up and walked around the gardens with the tent “every 20 minutes” during the night. She insisted she did not classify the tent as a tent: “I was wearing a costume so to me it was being asked to hand over my clothes”. In re-examination she said the wearing of the tent was intended in the beginning to be a commentary on the fact that “Occupy Melbourne as a protest was being told what it could and what it wasn’t or what was acceptable as a form of protest. And so I thought that that, the tent monster costume, was a particularly engaging channel that I could kind of — I could express that idea to the general public”.
231 Mr Schwartz, who was the responsible officer from the Council to whom we have earlier referred, on being shown the video during cross-examination, accepted that the intent of reg 21 of the Regulations was not “what we see on the TV. If I was there I would have advised the officers just to stand down and observe…. My direction was that clause 21 was to do with camping and tents brought in for the purpose of camping and I don’t think that that’s what we saw on the TV”.
232 The Council’s submission to which we have referred at [220] above should be rejected. In our opinion, Ms Kerrison’s evidence establishes that by wearing the tent she was using it as a form of protest: as she said, to highlight the fact that the Occupy Melbourne protestors were having the mode and manner of their political protests curtailed by the very authorities against whose power, at least in part, they were protesting. When she was walking around wearing the dome tent she was, in our opinion, exercising her right under s 15(2) to impart information and ideas about how the Occupy Melbourne protests were being constrained.
233 The direction to her to remove the tent, although lawful, limited her right under s 15(2) because it precluded her from imparting her ideas about the constraints on the Occupy protestors in the way she had decided was most effective. Objectively, it can be appreciated as an effective visual form of protest against the restrictions on tents and camping in tents in the gardens. Whether the manner in which the tent was removed was lawful at common law, or under reg 34(3), is not in issue before us on appeal. We assume, in the absence of any continuing challenge, the manner in which the tent was removed was lawful in that sense. If it was not, it would have been unlikely to be found to be proportionate.
234 We turn then to consider the proportionality of the limits imposed on Ms Kerrison’s freedom of expression right by the actions of the Council officers in removing the tent, or causing it to be removed.
235 The respondents relevantly accepted the right to freedom of expression is undoubtedly important, being at the heart of an open and democratic society. The existence and nature of the implied freedom of political communication in the Constitution reinforces the importance of this right. Yet there is obviously a need to ensure that the valid substantive prohibitions in the Regulations can be enforced in a way which is capable of achieving the preservation, care and maintenance of the gardens and their equitable use. The gardens have historic, cultural, environmental and social significance to the Victorian community, and to those who visit Victoria. The freedom of all people to use the gardens lawfully in the way they wish to — whether for exercise, celebrations or quiet contemplation — is important. The horticultural preservation and care of the gardens is an ongoing task, all aspects of which may not be readily apparent to casual users of the gardens. For example, damage caused by some uses may not be immediately apparent, and there is a place for cautious approaches to the preservation of living things such as gardens.
236 Giving people directions to remove items they are prohibited from having or using in the gardens, and removing those items if the person does not comply with the direction, is a demonstrably justifiable method of seeking to preserve and maintain the gardens and their equitable use. The giving of a direction provides a person with an opportunity to comply with the law, without any further interference. The law in question is not one directed at limiting freedom of expression — it is a law about bringing things into the gardens which may cause damage or interfere with equitable use. The effect on freedom of expression is in that sense incidental. These observations all apply to the directions given to Ms Kerrison, especially since she had been warned over at least two days that her tent, and the tents of others, needed to be removed from the gardens.
237 There is a clear relationship between giving a direction to remove and actually removing a prohibited item from the gardens, and the purpose of the enforcement provisions. Especially where what the laws are seeking to do is maintain continuous equitable use of the gardens, and continuous preservation of them, enforcement actions which have immediate effect are critical.
238 On the evidence, an important factor in our opinion is that Ms Kerrison had been using the tent to stay in overnight: that is, she had been camping in the tent and indeed asserted that she needed it to be able to stay overnight in the gardens. She had been using it as a place to stay, not simply as a costume designed as a form of political protest. In other words, she wanted to be able, and intended, to use it for the very conduct which the (valid) Regulations prohibited. The enforcement action was directed at precluding her from doing this. It was not directed at stopping people walking around wearing tents they had brought into the gardens only so they could walk around in them as part of the Occupy Melbourne protest.
239 In our opinion, the second critical aspect of proportionality on the evidence is whether there were less restrictive means which were reasonably available to the Council officers. This is the aspect which has troubled us, because of the manner in which the video evidence in particular shows the tent was removed from Ms Kerrison. She was no doubt genuinely embarrassed, upset and perhaps humiliated in having the tent removed when she had little clothing on underneath. On the evidence, however, this was a consequence she undertook to risk. She had placed herself in the same position the day before, by also standing up into the tent and walking around, proclaiming she had no clothes on underneath and that removing her tent would be sexual assault. In our opinion this evidence demonstrates she knew there was a risk the prohibition of which she had been informed would be enforced against her and she was attempting to challenge the Council officers not to enforce it because she had elected not to wear any clothes underneath the tent. On both days she was offered clothes and refused them. On 5 December 2011 no action was taken to remove the tent, but she continued to contravene the Regulations again that night by staying all night in the tent, using it for shelter, and then again ensuring she had no clothes on underneath the tent when she stood up and started walking around in it the following day, again in effect challenging the officers not to remove it because she was not wearing anything but a bra and pants underneath.
240 Other protestors had complied with the direction to remove the tents they had slept in from the gardens. If the officers did not act to remove Ms Kerrison’s tent, then it was a rational and reasonable inference she would again use it for shelter and stay in it overnight on 6 December 2011, in direct and knowing contravention of the prohibitions. The Regulations like the Local Law have a permission scheme built in, although in this case permission had not been sought. Perhaps there was an error of judgment in removing the tent by force while Ms Kerrison was wearing it rather than while she was staying in it overnight: with hindsight, these assessments are generally easier. The officers were in a tense situation where there was apprehended to be potential damage to the gardens and their equitable use, and protestors like Ms Kerrison were expressly refusing to comply with reasonable directions, and deliberately contravening a law they regarded as at least unfair and perhaps unlawful but which at that time had not successfully been impugned.
241 It is not possible to conclude that less restrictive means to enforce the prohibition were available on 6 December 2011. Certainly, on that day, the Council officers could have chosen not to enforce the prohibition at all, as they had done on 5 December 2011. This assumes that the only proportionate way in which the Council officers could act was by permitting continued contravention of the prohibition. The appellant did not meaningfully develop her argument to this effect and thus it was not dealt with by the respondents. We doubt that the argument can withstand scrutiny given the assumption on which it is based.
242 We find the Council officers did not act incompatibly with Ms Kerrison’s human right to freedom of expression by removing the tent she was “wearing” on 6 December 2011.
243 In relation to the action of the Council officers in removing the Occupy Melbourne banner, there was no attention at all paid to this in oral argument. In those circumstances the appellant has not discharged her (agreed) burden of persuading this Court, considering the matter for itself, as to how and why the actions of the Council officers limited her human rights under ss 15 and 16. To take one example, we were not taken to any evidence to identify what the connection was between Ms Kerrison and the banner: that is, whether it was her banner, or whether she was prevented from erecting it.
6.5 The notices issue (ground 5)
244 The notices to comply with which ground 5 is concerned were each addressed to and served on the appellant. The first notice, issued on 30 November 2011, records that:
You have been served this notice because an Authorised Officer of the Council reasonably believes that you are in breach of the Activities Local Law 2009.
245 Under a section headed “Details of breach” in the first notice a reference to cl 4.6 of the Local Law, and the text of that provision, has been struck through by hand. There follows a reference to cl 2.11 in these terms:
Clause 2.11 – Camping in Public places,
Unless;
In accordance with a permit, a person must not camp in or on any public place in a vehicle, tent, caravan or any type of temporary or provisional form of accommodation.
246 The first notice continues:
You are directed to:
Comply with the Activities Local Law 2009 and
√ Stop the conduct which breaches the Activities Local Law 2009 by:
…
247 The first notice then states:
To comply with the direction in this Notice you should:
(specify what action is required)
Light blue tarp removed from any public place
You are served with this notice and you must comply with its directions. Failure to comply is an offence and penalties may apply.
248 The first notice is signed by an authorised officer of the Council whom the evidence did not identify. The second notice, issued on 1 December 2011, is in the same terms but for the time and date of issue and compliance and the specification of the action required. In the latter respect, the second notice is in these terms:
To comply with the direction in this Notice you should:
(specify what action is required)
To remove items/things, namely Dome tent & associated items from any public place.
249 The third notice, dated 2 December 2011, is also in the same terms but for the time and date of issue and compliance and the specification of the action required. In the latter respect, the third notice is in these terms:
(specify what action is required)
Remove Blue Dome tent & associated items from any public place
250 Insofar as the appellant’s challenge to the validity of the notices depends on the construction of cl 4.6 and reliance in any notice on cl 4.6, it is apparent that no such challenge can be mounted against the notices to the appellant in issue in ground 5. None of those notices referred to or relied upon cl 4.6 of the Local Law.
251 The appellant otherwise submitted that the notices to the appellant were bad on their face because: (i) the notices did not direct the appellant to stop any conduct in breach of the Local Law but, rather, directed the removal of items, (ii) amongst other items the notices required to be removed were “associated items” when cl 2.11 prohibited only, relevantly, camping in tents, (iii) accordingly, the notices are only explicable on the basis that the authorised officer considered that cl 2.11 prohibited camping per se when, in fact, it prohibited camping in a form of accommodation, and (iv) the primary judge erred in concluding at [228] that other items such as mattresses, pillows and sleeping bags could be required to be removed because they were used in the conduct of camping.
252 None of these submissions withstand scrutiny.
253 First, the notices directed the appellant in terms to stop conduct identified as being in breach of cl 2.11 of the Local Law, namely, to not unless in accordance with a permit, camp in or on any public place in a vehicle, tent, caravan or any type of temporary or provisional form of accommodation. The directions to remove items specified the action required to comply with the Local Law.
254 Second, cl 2.11 of the Local Law prohibited, relevantly, camping in tents. There is no dispute on the evidence that the appellant was camping in a tent. In order to camp in a tent, associated items such as pegs, ropes, groundsheets and the like are commonly used. There is no evidence from which it might be inferred that the “associated items” referred to in the notices to the appellant did not contemplate the removal of items such as pegs, ropes and the like. Accordingly, it cannot be concluded that the notices are bad on their face for this reason. Clause 2.11 is not to be construed so narrowly that items necessary to enable camping in a tent, such as pegs, ropes, groundsheets and the like, are beyond its reach. Such a construction has nothing to commend it.
255 Third, and as a result of the second proposition, it cannot be said that the notices are only explicable on the basis that the authorised officer considered that cl 2.11 prohibited camping per se. The authorised officers who issued the notices to the appellant are unidentified. On their face, each notice refers to a form of accommodation, being the tarp or a tent. The “associated items” are identified as associated with the identified form of accommodation. If any inference is capable of being drawn about what each authorised officer considered from the face of the notices, which we doubt, the inference that would be drawn is that each officer correctly understood the terms of cl 2.11 as set out in full in the notice.
256 Fourth, we can see no error in the primary judge’s reasoning at [228]. Camping in a tent or any other form of accommodation necessarily involves the use of more than the tent and the accommodation itself. It involves sleeping, eating and other activities of daily life. The facilities a person uses to enable these activities to be conducted, such as mattresses, sleeping bags and pillows, are integral to the conduct of camping in a form of accommodation. As such, the prohibition in cl 2.11 extends to such items if, in fact, they are so used. The appellant’s submissions on this issue miss the point. It is no doubt true that the appellant could have camped in the areas in question without contravening cl 2.11. In so doing, she could have used a mattress, sleeping bag and pillow (subject to such other provisions of the Local Laws which might have been engaged by that conduct). That is not, however, what the appellant did. She camped in a tent. The prohibition in cl 2.11 was thus engaged and extended to all items in fact used by the appellant to facilitate her activity of camping in a tent.
257 Ground 5 of the appeal thus fails.
6.6 The cl 4.6 notices issue (ground 7)
258 Ground 7 depends on the appellant having succeeded in respect of the representative proceeding issue (ground 6). The appellant did not succeed on the representative proceeding issue. Accordingly, ground 7 does not arise for consideration. The appellant did not have standing to challenge the 67 notices issued to other people in sole reliance on cl 4.6. Nor did she represent those other people. Nor, for that matter, did the appellant seek any relief referable to ground 7 of the further amended notice of appeal.
259 For these reasons ground 7 does not arise and will not be considered further.
6.7 The cl 4.6 construction issue (ground 8)
260 The Council’s contention that the proper construction of cl 4.6 does not arise on the appeal is correct. The appellant succeeded in having the notices served on her in sole reliance on cl 4.6 declared invalid. The Council did not appeal against that declaration. The appellant has not been permitted to argue the standing issue and has failed in her appeal on the representative proceeding issue. Accordingly, there is no ground of appeal which requires consideration of the proper construction of cl 4.6.
261 Nor do we consider it appropriate to succumb to the temptation to opine about a matter such as this when it is not in issue other than to say that the only construction proposed by the appellant to the primary judge, that “other things” should be construed ejusdem generis with the phrase “advertising signs”, or the suggestion in oral submissions during the appeal that things involving political comment should be read as excluded from “other things”, have nothing to commend them: the first, for the reasons given by the primary judge at [232] to [234] and the second, because nothing in the text or context of cl 4.6 in the Local Law would support such a reading.
262 Ground 8, accordingly, must fail.
6.8 The arrest issue (ground 10)
263 In written submissions the appellant made two points about ground 10 as follows:
First, … properly construed, there is no power to arrest if there is no valid law which could have given rise to the relevant “offence” referred to in ss 458(1) and 462 of the Crimes Act. The result is that, if cll 14.1, 14.13 and 14.16 are unlawful, invalid or inoperative, there is no power to arrest. The arrests of the protesters for “offences” against cl 14.1 were therefore not authorised by s 458(1).
Secondly, if “offence” in s 458(1) and 462 of the Crimes Act (in the context of s 228(4) of the Local Government Act) is ascribed a meaning by which it picks up offences against a law which law is invalid by reason of the implied freedom, then those sections are invalid. That was the conclusion reached by McHugh J in Coleman at [142] and it should be followed. The underlying reasoning is similar to that set out above. Sections 458(1) and 462 effectively burden the freedom in a similar, but additional, way to the underlying prohibitions in the Local Law and they are no more proportionate to a compatible end. If the underlying prohibitions are invalid, it is a fortiori that ss 458(1) and 462 are invalid to that extent.
264 Ground 10, however, does not refer to s 462 of the Crimes Act. It refers to s 458(1) of the Crimes Act and s 224(8) of the Local Government Act. We take “s 228(4)” in the submissions to be a typographical error.
265 Section 224(8) of the Local Government Act provides that a person is guilty of an offence if the person, amongst other things, obstructs or hinders an authorised officer while performing his or her duty. The appellant used s 224(8) as an example of an “offence” to which s 458(1) could apply in the circumstances of this case.
266 Section 458(1) of the Crimes Act provides that a police officer may arrest a person the officer finds committing any offence. Section 462 defines “finds committing”. In addition to these provisions, the appellant’s written submissions in reply refer to s 461(1) of the Crimes Act (discussed further below), a provision mentioned in neither the further amended notice of appeal nor the appellant’s written submissions in chief, but which first appears in a notice given by the appellant on 1 August 2014 under s 78B of the Judiciary Act 1903 (Cth).
267 In answer to the appellant’s case, the State (the police rather than the Council being responsible for the arrests) made these points:
1. The appellant was not arrested and did not have standing to challenge the arrests. For that reason, the primary judge held that it was “not necessary to consider the lawfulness of the actions of the police”: at [454]. That conclusion was correct.
2. Even if the Court were to conclude that the enforcement provisions in the Local Law and Regulations were invalid, the actions of the police officers under s 458(1) of the Crimes Act were nevertheless lawful. This is because the reasoning of the majority in Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [27]-[28] should be preferred to the reasoning of McHugh J in Coleman 220 CLR 1; [2004] HCA 39 at [142].
3. Section 461(1) of the Crimes Act, which was not in play in the enactment considered in Coleman, supports this, as it provides that:
Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 … the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged.
4. The appellant should not be permitted to advance the argument that ss 458(1) and 461 are invalid. As the State put it:
No declaration of invalidity of ss 458(1), 461 or 462 of the Crimes Act was sought before North J, nor is there any ground of appeal contending that North J erred in failing to hold that those sections were invalid. Further, when the appellant’s senior counsel (in his reply) started to “stray” into this area, the respondents objected and senior counsel for the appellant disavowed any such constitutional challenge (as is recorded by North J at [465]). In those circumstances – and in a factual context where the issue is peripheral given that the appellant was never arrested – it is not in the interests of justice that the appellant be permitted to raise a new argument on appeal. She should be bound by the conduct of her case below.
268 The appellant contended in written submissions in reply that she should be permitted to challenge s 461(1) of the Crimes Act because:
The argument is legal, not factual: no prejudice is identified. In any event, the issue arises on the appeal and, unlike the position below, the requisite s 78B notices were given on 1 August 2014.
269 The State’s first and fourth contentions are compelling. The appellant should not be permitted to raise these issues in the appeal. Neither the other parties nor the Court should have been burdened by consideration of these issues in the circumstances which the State has identified. In any event, we have not concluded that the enforcement provisions were invalid. Accordingly, the necessary premise for the appellant’s argument in ground 10 does not arise. Given that the appellant does not have standing to challenge the arrests of other people, does not have leave to raise the issue of standing in the appeal, has failed in respect of the constitutional and Charter issues, failed to seek any declaration of invalidity of ss 458(1), 461 or 462 below, and failed to include in the further amended notice of appeal any complaint about the primary judge not having found the now impugned sections to be invalid, any temptation to consider the substance of ground 10 should be resisted. To yield to this temptation would be to treat the hearing before the primary judge as a “preliminary skirmish” (Coulton 162 CLR 1 at 7), and the further amended notice of appeal and case management procedures of this Court as meaningless. No matter how interesting the issue, the Court should not be inveigled into giving opinions about issues not properly before it, particularly not those which involve hypotheses that multiple other conclusions are incorrect before the issue could arise even if properly raised.
270 Ground 10 should be rejected for these reasons.
7. CONCLUSION
271 The appeal should be dismissed. The appellant should pay the respondents’ costs of and incidental to the appeal.
| I certify that the preceding two hundred and seventy-one (271) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick, Jagot & Mortimer. |
Associate:
