FEDERAL COURT OF AUSTRALIA

O’Flaherty v City of Sydney Council [2013] FCA 344

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 the High Court unanimously held that the Australian Constitution impliedly protects freedom of communication about government and political matters to the extent necessary for the effective operation of the system of representative and responsible government provided by the Constitution. Laws of the States or Commonwealth that infringe this implied freedom are invalid. Broadly speaking, the question in this case is whether a prohibition against staying overnight in a particular public place is such a law. The answer, in short, is that it is not.

2    On 15 October 2011 hundreds, if not thousands, of protesters identifying with the movement known as Occupy Sydney assembled in Martin Place in the heart of Sydney’s central business district. Their purpose was to demonstrate against social and economic inequality and the corruption of political systems. Their aim was to encourage greater community discussion of and engagement with economic, political and social justice issues. Martin Place is a pedestrian boulevard running between Macquarie Street to the east and George Street to the west. It is owned by the Crown but controlled and managed by the first respondent, the City of Sydney Council (“the City”). The protesters gathered in the easternmost section between Macquarie and Phillip Streets (stage 5). This is the section closest to the NSW Parliament. It is bordered on the southern side by the headquarters of the Reserve Bank of Australia and on the northern side by a branch of Westpac. It also houses access points to Martin Place railway station. In this section of Martin Place the Occupy Sydney demonstration peacefully continued, day and night (albeit in reduced numbers), until the early hours of the morning of 23 October 2011 when most of the protesters were forcibly removed by officers of the NSW Police Service after refusing to leave voluntarily. The applicant, Eamonn O’Flaherty, a 26 year old student and trainee massage therapist who had spent the night there, was one of those protesters.

3    Staying overnight (along with camping and various other activities) is prohibited by notice in Martin Place. At all relevant times 19 such notices were displayed from fixed poles in Martin Place, including four in the section occupied by the protesters.

4    Mr O’Flaherty was charged with the offence of failing to comply with the terms of a notice in a public place (by camping or staying overnight) contrary to s 632(1) of the Local Government Act 1993 (NSW). He was also charged with an offence under s 199(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) for refusing to comply, without reasonable excuse, with a police direction.

5    Mr O’Flaherty contends that it was beyond the powers of the City to issue the notice because it impermissibly burdens his freedom of communication about government and political matters and/or his freedom of association, by deterring him and others by threat of criminal sanctions from staying overnight in the area. He seeks declarations to the effect that the issue or publication of the City’s notices was ultra vires the powers conferred on an authorised officer under the Local Government Act or, in the alternative, that s 632(1) of the Act was invalid to the extent that it burdens either or both of those freedoms.

6    The application is made pursuant to s 39B(1A)(b) of the Judiciary Act 1993 (Cth) on the basis that it concerns a matter involving the interpretation of the Constitution.

The evidence

7    The application was supported by three affidavits from Mr O’Flaherty (affirmed on 5 March 2012, 2 August 2012 and 29 October 2012) in which he described his motivations for joining the protest, the events leading up to and surrounding his arrest, and the impact that the enforcement of the prohibition had on him. His evidence was supported by affidavits from Wenny Theresia and others who also participated in the protest.

8    Mr O’Flaherty joined the Occupy Sydney movement on 16 October 2011. He said he was inspired by Occupy Wall Street and the protests in the Middle East known as the Arab Spring. He said he wanted to be part of the global “Occupy” protest movement.

9    Mr O’Flaherty testified that his purpose was to play his part in a protest against a world “corrupted and despoiled by systematic greed and institutional short-sightedness” in which too much power is assigned to “wealth and the wealthy few”. He said he believed that by staying at the occupation site continuously, the protesters were powerfully demonstrating their commitment to the Occupy Sydney cause, communicating in a way that appeared more “intense” and “long-lasting” than a rally or protest march. He believed that the act of occupation demonstrated the protesters’ solidarity with other Occupy movements and that more people could be involved in a continuous protest. Drawing on the media interest in the Occupy movements in the United States, he considered that an occupation would also attract greater media and public attention.

10    Mr O’Flaherty said that he had intended to stay in Martin Place continuously and indefinitely as part of a public demonstration to highlight issues of social and economic inequality by enduring for himself the hardship of living on the street. He described the very act of occupation as an act of communication of political ideas.

11    Mr O’Flaherty stayed overnight in Martin Place on both 21 and 22 October 2011, sleeping in a sleeping bag laid on a yoga mat. He said that 40 to 50 others also stayed overnight. The police estimate was 60, Ms Theresia’s 90. While staying overnight, Mr O’Flaherty shared his concerns with other protesters and passers-by.

12    At about 5.00 am the next day the protesters were confronted by around 100 police, a spectacle that Ms Theresia and no doubt others found intimidating. Police asked the protesters to leave and remove their possessions. Some left voluntarily. Some were forcibly removed. Some, like Mr O’Flaherty, were arrested.

13    Mr O’Flaherty stayed overnight in Martin Place on one occasion since then (“from some time after [midnight]”). Fearing another arrest, however, he did not do so again.

14    A decision was taken to occupy a new site in Hyde Park near St James Station but those plans were thwarted when, shortly before midnight on 5 November 2011, police officers ordered the 40 or so protesters to move along or face arrest.

15    Ms Theresia pointed out that the occupation site attracted members of the public, international visitors, musicians, academics and students. She detailed a number of services that she and others provided to both protesters and members of the general public at the site, such as musical performances, film nights, and free yoga and meditation classes. She noted that (in spite of the police action) the protest has continued in Martin Place and festivities were held to mark the one year anniversary on 13 October 2012. Both Mr O’Flaherty and Ms Theresia emphasised that the organisers went to some lengths to ensure that the area was kept tidy and free of litter.

16    Similar evidence was given by Glenn Lockitch, a photojournalist and teacher.

17    Mr O’Flaherty also relied on video footage of the police presence at the site on 23 October 2011. The video footage depicts the removal of protesters, including Mr O’Flaherty. It was taken by Michail Triantafyllopoulos, a student, who was member of the Occupy Sydney Media team.

18    None of these witnesses was required for cross-examination. In the circumstances I accept their evidence where it is not in conflict. It is unnecessary to resolve the conflicts.

19    The City largely relied on evidence given by Garry Harding, its Director of City Operations and Samuel Gill, its Manager of Cleaning and Waste. Mr Harding’s evidence related to the levels of pedestrian traffic in Martin Place, details regarding signage, the City’s practices in relation to the regulation of public spaces, the use of Martin Place by various groups and organisations, and complaints about Occupy Sydney and the protesters who were staying at Martin Place. Mr Gill’s evidence was primarily concerned with the details of the cleaning roster and processes for Martin Place, the removal of rubbish from the protest site and organisational issues concerning the cleaning associated with the protest. Garbage is collected during the night. Between the hours of 10.00 pm and 6.00 am on Sundays to Thursdays and 4.00 am and 9.30 am on weekends, cleaning is carried out using a pressure hose to remove the build-up of dirt and stains. On Friday nights between 10.00 pm and 4.00 am crews on response trucks inspect Martin Place. Once a fortnight a detailed clean is conducted. The detailed clean also involves the use of a pressure hose to remove stubborn stains, dirt and graffiti.

20    The evidence indicated that despite the efforts of the protest’s organisers, rubbish accumulated on the site and stains appeared on the pavement – even after the arrests in October 2011. For example, an inspection of Martin Place conducted in April 2012 revealed chalk graffiti from Occupy Sydney, urine and “vomit throughout”. In January 2012 a proper steam clean was unable to be carried out because protest leaders refused to move some of their items. A powerful odour lingered and staining remained after about 20 minutes of steam cleaning. On other occasions the area was not steam cleaned at all because belongings were not removed.

21    The City also tendered evidence of complaints it had received about Occupy Sydney over an 11 month period. There were 10. None of them, however, related to protesters staying overnight in Martin Place.

22    A subpoena issued to the NSW Police Service by Mr O’Flaherty did not result in the production of any record of complaints to the police about the protest.

The impugned legislation

23    Section 632 of the Local Government Act relevantly provides:

632    Acting contrary to notices erected by councils

(1)    A person who, in a public place within the area of a council, fails to comply with the terms of a notice erected by the City is guilty of an offence.

Maximum penalty: 10 penalty units.

(2)    The terms of any such notice may relate to any one or more of the following:

(a)    the payment of a fee for entry to or the use of the place,

(b)    the taking of a vehicle into the place,

(b1) the driving, parking or use of a vehicle in the place,

(c)    the taking of any animal or thing into the place,

(d)    the use of any animal or thing in the place,

(e)    the doing of any thing in the place,

(f)    the use of the place or any part of the place.

(2A)    …

(2B)    …

(3)    The terms of a notice referred to in this section may:

(a)    apply generally or be limited in their application by reference to specified exceptions or factors, or

(b)    apply differently according to different factors of a specified kind,

or may do any combination of those things.

24    The notices in this case relevantly read as follows:

The following activities are prohibited in this area:

…

-    Camping or staying overnight

…

-    Any other act which may cause damage to the area

-    Any other act which may cause inconvenience or injury to others

Maximum penalty $550

The Local Government Act 1993 …

By order of the General Manager the City of Sydney.    

25    Other activities prohibited by the notice include the driving or parking of unauthorised motor vehicles, riding bicycles, using skateboards, consuming alcohol or bringing alcohol into the area, lighting a fire and littering.

26    The maximum penalty was increased from five penalty units ($550) to 10 ($1,100) on 1 April 2001. For this reason it is almost certainly the case that the notices had been in place for over ten years before Mr O’Flaherty was charged.

The issues

27    There is no dispute that Mr O’Flaherty has standing to bring this application. Nor is it disputed that this Court has jurisdiction to entertain it. The Court has original jurisdiction in any matter arising under the Constitution or involving its interpretation: Judiciary Act, s 39B(1A)(b); James v South Australia (1927) 40 CLR 1 at 40. Although the expression “staying overnight” is imprecise, no point was taken about any consequential uncertainty. The case is concerned with whether the notices prohibiting staying overnight are authorised by s 632(2) of the Local Government Act and if so, whether s 632(1), which makes it a criminal offence to fail to comply with a notice, is constitutionally valid.

28    The test for determining whether the implied freedom of political communication is impermissibly burdened is the test enunciated in Lange v Australian Broadcasting Corporation (“Lange”) and modified in Coleman v Power (2004) 220 CLR 1 (“Coleman v Power”) (at 31 [95]–[96] per McHugh J, Gummow and Hayne JJ agreeing at 57 [196] and Kirby J at 61–62 [211]–[212]). The test involves two limbs: first, whether the law effectively burdens freedom of communication about government or political matters either in its terms, operation or effect; and second, whether the law is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment for the informed decision of the people. Only if the answer to the first question is “yes” and the second “no” is the law invalid.

29    It is common ground that s 632(1) of the Local Government Act is subject to the constitutional limitation and so does not authorise the publication of a notice that would impermissibly burden the implied freedom of political communication. The respondents deny, however, that the prohibition in the notice against camping and staying overnight infringes the implied freedom. They also submit that if there is a “freedom of association” implied in the Constitution, it exists only as a corollary to the implied freedom of political communication and for this reason Mr O’Flaherty’s claims based on freedom of association add nothing to his primary contentions. They insist that the section is constitutionally valid.

30    The parties jointly identify the issues arising for consideration as follows:

(1)    Do the relevant notices erected by the City in Martin Place under s 632(2) of the Local Government Act, in so far as they prohibit camping or staying overnight at Martin Place, impermissibly infringe the implied constitutional freedom of political communication such that they are not validly authorised by s 632(2)? In particular:

(a)    Was Mr O’Flaherty engaged in communication about government or political matters?

(b)    Does the prohibition in the notices against staying overnight in its terms, operation or effect, burden communication about government or political matters?

(c)    What are the legitimate ends of the prohibition? Are those ends compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

(d)    Is the prohibition reasonably appropriate and adapted to serve the identified legitimate ends (if any) in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

(2)    Do the relevant notices impermissibly infringe any implied freedom of political association in the Constitution such that they are not validly authorised by s 632(2)? In particular:

(a)    On the authorities, is there a freedom of political association implied in the Constitution?

(b)    If so, was Mr O’Flaherty engaged in political association within the purview of the implied freedom of political association when he was staying overnight in Martin Place?

(c)    Does the prohibition in the notices in its terms, operation or effect, burden the implied freedom of political association?

(d)    What are the legitimate ends of the prohibition? Are those ends compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

(e)    Is the prohibition reasonably appropriate and adapted to serve the identified legitimate ends (if any) in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

(3)    Is s 632(1) of the Local Government Act invalid in so far as it creates an offence for failing to comply with the prohibition in the notices against staying overnight in Martin Place by reason of impermissibly infringing either or both implied freedoms?

Does the prohibition in the notices effectively burden freedom of communication about government or political matters in its terms, operation or effect?

Was Mr O’Flaherty engaged in communication about government or political matters?

31    The source of the implied freedom of communication on government and political matters (which, for convenience, I shall continue to refer to as the implied freedom of political communication) is the form of representative and responsible government created by the Constitution, in particular ss 7, 24, 64 and 128 (Lange at 560-561). Consequently, the implied freedom only protects communications relating to the choices to be made by voters, and the communications must be political or governmental in nature.

32    The respondents admit that the protest was concerned with issues relating to government or political matters. They argue, however, that the act of staying overnight in Martin Place does not, of itself, constitute political communication. They point out that people may stay or sleep there overnight for any one of a number of reasons. It is not uncommon, for example, for homeless people to spend the night in Martin Place. But Mr O’Flaherty’s case does not rest on the mere act of staying overnight. Staying overnight was a symbolic gesture, the act itself a communication of a political idea. Part of that idea involved sharing the plight of the homeless as a means of exposing issues relating to homelessness and inequality. Indeed, Mr O’Flaherty said that the very act of occupation would send a symbolic message to the Australian public and to other Occupy movements around the world. In particular, he said:

I considered myself to be joining a protest that by example critiqued the operational form of Australian democracy and offered alternatives to it, such as through the forms of communication and association made possible by continuous occupation.

33    Ideas and opinions may be communicated through action (or, indeed, inaction) and in silence: Levy v The State of Victoria (1997) 189 CLR 579 (“Levy”) at 594 per Brennan CJ. The freedom of communication protected by the Constitution is not just freedom of speech. It may involve or include signs, symbols, gestures and images: Levy at 595 per Brennan CJ; at 613 per Toohey and Gummow JJ; and at 622-623 per McHugh J. Cf. Weisfeld v R [1995] 1 FC 68 at 10-11 [30]. History has shown that non-verbal protest can be a particularly potent method of political communication, whether it be chaining oneself to the gates of parliament, giving a Black Power salute, partaking in a candlelight vigil, sitting in front of a bulldozer, participating in a sit-in, taking part in a hunger strike, setting oneself on fire, occupying a seat in a restaurant, library or bus reserved for people of a different colour, or burning a flag or draft card. No-one would seriously suggest, for example, that Rosa Parks was not engaged in an act of political communication when in 1955 in Montgomery Alabama she defied an instruction by a bus driver to give up her seat on the bus to a white passenger, although the mere act of sitting on a bus or staying put when asked to leave does not of itself constitute political communication. At this point in the inquiry, the form the communication takes is immaterial.

34    As Brennan CJ put it in Levy at 595:

Televised protests by non-verbal conduct are today a commonplace of political expression. A law which simply denied an opportunity to make such a protest about an issue relevant to the government or politics of the Commonwealth would be as offensive to the constitutionally implied freedom as a law which banned political speech-making on that issue.

35    This analysis is consistent with and supported by the jurisprudence of the European Court of Human Rights, the United Kingdom, Canada and the United States of America. The following examples will suffice to illustrate the point.

36    In Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 (5 February 2009) by-laws preventing the maintenance of a long-standing, one weekend a month, women’s peace camp protesting against nuclear weapons on government-owned land were held to breach the protesters’ rights to freedom of expression under the European Convention on Human Rights (“the European Convention ”). Laws LJ cautioned (at [35]) that:

the supposed distinction between the essence of a protest and the manner and form of its exercise has to be treated with considerable care. In some cases it will be real, in others insubstantial. All depends on the particular facts; and it is worth remembering that the Strasbourg court has always been sensitive to factual nuance.

37    Whilst acknowledging that the relevant by-law, which prohibited camping in controlled areas, was not directed towards the suppression of free speech, his Lordship went on to point out (at [37]) that:

this “manner and form” may constitute the actual nature and quality of the protest; it may have acquired a symbolic force inseparable from the protesters’ message; it may be the very witness of their beliefs. It takes little imagination to perceive, as I would hold, that that is the case here. As I have said, the AWPC has been established for something like 23 years. Some of those involved may have been steadfast participants the whole time. Others will have come and gone. But the camp has borne consistent, long-standing, and peaceful witness to the convictions of the women who have belonged to it. To them, and (it may fairly be assumed) to many who support them, and indeed to others who disapprove and oppose them, the “manner and form” is the protest itself.

(Emphasis in original).

38    In City of London Corporation v Samede [2012] PTSR 1624; [2012] EWCA Civ 160 (22 February 2012) (the Occupy London case) the Court of Appeal for England and Wales held that the City of London Corporation was correct to concede that Article 10 of the European Convention (which protects freedom of expression save in certain defined circumstance) was engaged, though not infringed, where Occupy London protesters set up a protest camp in the churchyard of St Paul’s Cathedral. The camp consisted of a large number of tents used as overnight accommodation. The Court took into account that the movement’s aims were to propagate its views in order to educate the public, and to engage in dialogue with others about these views. The Court noted that this aim was sought to be achieved through the activities undertaken at the camp, “reinforced by its attendant publicity, which is partly attributable to its large size and prominent location” (at [28]). It was the maintenance of the camp itself that engaged Article 10 (and also Article 11, which relates to freedom of assembly and association).

39    In Brown v Louisiana 383 US 131 (1966) the US Supreme Court held (at 141–142) that the First Amendment right of free speech includes “the right in a peaceable and orderly manner to protest by silent and reproachful presence” and so protected five African-Americans from prosecution when they had merely “sat and stood in the room, quietly, as monuments of protest against the segregation of [a public] library” (139).

40    In US v Abney 534 F 2d 984 (1976) the US Court of Appeals (District of Columbia Circuit) overturned the convictions of a World War II veteran who had been sentenced to short gaol terms for repeatedly violating a regulation against sleeping in Lafayette Park. The veteran had been engaged in a 30-year dispute with the Veterans Administration over disability benefits and decided to take up a round-the-clock vigil in the park (across the street from the Administration’s headquarters). The Appeals Court held (at 985) that, in the unusual circumstances of the case, “sleeping must be taken to be sufficiently expressive in nature to implicate first amendment scrutiny in the first instance”.

41    In Community for Creative Non-Violence v Watt 703 F 2d 586 (1983) an action group concerned with the plight of the homeless was given a permit by the National Park Service to conduct a demonstration in Lafayette Park and the National Mall in Washington DC. The permit authorised the erection of two symbolic tent cities but not sleeping in the tents. The National Park Service relied on a regulation that permitted camping only in designated campgrounds. Neither Lafayette Park nor the National Mall was a designated campground. The US Court of Appeals held that sleeping in the tents was protected by the First Amendment, stating (at 593) that “the first amendment is not so rarefied that it cannot accommodate within its scope the conduct of these demonstrators who use their bodies to express the poignancy of [the] plight [of the homeless]”. The Supreme Court allowed an appeal but did not disturb this finding, the majority considering it unnecessary to express a view on it: Clark v Community for Creative Non-Violence 468 US 288 (1984) at 3068–3069. Thurgood Marshall J, however, (with whom Brennan J joined in dissent) made the following pertinent observations (at 3075) with which I respectfully agree:

It is true that we all go to sleep as part of our daily regimen and that, for the most part, sleep represents a physical necessity and not a vehicle for expression. But these characteristics need not prevent an activity that is normally devoid of expressive purpose from being used as a novel mode of communication. Sitting or standing in a library is a common-place activity necessary to facilitate ends usually having nothing to do with making a statement. Moreover, sitting or standing is not conduct that an observer would normally construe as expressive conduct. However, for Negroes to stand or sit in a “whites only” library in Louisiana in 1965 was powerfully expressive; in that particular context, those acts became “monuments of protest” against segregation.

42    In Batty v City of Toronto (2011) 342 DLR (4th) 129 (Ontario Superior Court of Justice) the Court held (at [70]) that the act of “camping out” in which the Occupy Toronto protesters participated was a mode of expression of their political message which engaged s 2(b) of the Canadian Charter of Rights and Freedoms (freedom of thought, belief, opinion and expression). Cf. Occupy Fort Myers v City of Fort Myers (MD Fla, 15 November 2011, No 2:11-cv-00608) and Occupy Minneapolis v County of Hennepin 866 F Supp 2d 1062 (D Minn, 2011) where the courts accepted that sleeping in a public park was protected speech. In the Fort Myers case, which was followed in Occupy Minneapolis, the court held that:

in the context of this case the tenting and sleeping in the park as described by plaintiffs’ counsel is symbolic conduct which is protected by the First Amendment. The conduct of tenting and sleeping in the park 24 hours a day to simulate an “occupation” is intended to be communicative and in context is reasonably understood by the viewer to be communicative. This expressive conduct relates to matters of public concern because it can be fairly considered as relating to matters of political, social, or other concern to the community and is a subject of general interest and of value and concern to the public.

43    There are, of course, differences between Australia’s constitutionally implied freedom and the freedom of speech or expression conferred by the European Convention, the Human Rights Act 1998 (UK), the First Amendment to the US Constitution and the Canadian Charter of Rights and Freedoms with which these authorities were concerned. The High Court has repeatedly emphasised that, in contradistinction to those rights or freedoms, the freedom protected by the Australian Constitution is not a freedom to communicate. Rather, it is a freedom from laws that effectively prevent members of the Australian community from communicating with each other about government and political matters relevant to the system of representative and responsible government provided for by the Constitution: Levy at 622 per McHugh J. It works as “a constraint upon legislative power in a particular sense”: Hogan v Hinch (2011) 243 CLR 506 at 554 [92] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Nevertheless, I see no reason why those differences require the question of whether the act of occupation can itself be a political communication to be approached any differently to the way it was approached in the overseas authorities to which I have referred.

44    The constitutional freedom may extend to conduct which is “a means of communicating a message within the scope of the freedom” (Levy at 613 per Toohey and Gummow JJ). The conduct in question in the present case is conduct of this kind. In Levy, where the High Court was satisfied that opponents of recreational duck shooting were engaged in political communication when they entered a hunting area, the protesters’ purpose was not disregarded. To the contrary, at least five members of the court took into account the protestors’ professed desire for maximum publicity to draw attention to their cause. Staying overnight in the course of a political occupation of Martin Place is no less an act of political communication than was the entry into the hunting area by those opposed to recreational duck shooting in Levy.

45    In any event, Mr OFlaherty’s unchallenged evidence was that while staying overnight in Martin Place he spoke to members of the public and fellow protesters about issues of disparity in power and wealth in Australian society. In this respect, it is unarguable that when staying overnight he engaged in political discourse.

46    For these reasons I am satisfied that when staying overnight in Martin Place Mr O’Flaherty was engaging in political communication. His purpose was to send a political message. His conduct was “calculated to express and was capable of expressing” such a message (cf. Levy at 595 per Brennan CJ).

Does the prohibition in its terms, operation or effect burden communication about government or political matters?

47    The City submits that the prohibition imposes no effective or material burden on freedom of political communication. A burden which is not “meaningful” (that is, a real or actual burden on relevant communications) would fall outside the scope of the implied freedom: Wotton v Queensland (2012) 246 CLR 1 at 23-24 [54] per Heydon J.

48    While the prohibition does not in its terms burden political communication, it does place limits on the duration of the communication in the places covered by the notices. To the extent that the act of continuous occupation is itself the communication of a political message, it also burdens the manner in which the communication may take place. In Levy McHugh J held (at 625) that there was an effective burden on the protesters’ freedom of political communication because, by prohibiting their entry into the hunting area at the times they chose to be there, the impugned regulations prevented them from putting their message in a way they believed would have had the greatest impact on public opinion. In the same way, the prohibition against staying overnight prevented Mr O’Flaherty and the other Occupy Sydney protesters from putting their message in a way they believed would attract maximum public attention and media interest. In this way, their political message would reach out to the widest audience. By curtailing their means of doing so the prohibition effectively burdened their constitutional freedom.

49    I therefore accept that the burden imposed by the prohibition on freedom of political communication is a meaningful one.

50    I now turn to the questions involved in the second limb of the inquiry.

Is the prohibition reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

What are the legitimate ends of the prohibition? Are those ends compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

51    The respondents submitted that the prohibition serves the legitimate ends of maintaining public health, safety and amenity in a high use public area, and preserving the ability of all members of the public to use the area. Mr O’Flaherty did not concede that this was so, but advanced no argument to the contrary. I accept the respondents’ submission. An examination of the statute bears it out. The question of whether these ends are legitimate was not seriously disputed.

52    The task of determining the ends of the prohibition is an exercise in statutory interpretation. Any such exercise must begin with a consideration of the text of the relevant legislation (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]) and its context (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408).

53    The express purposes of the Local Government Act, articulated in s 7, include giving councils:

•    the ability to provide goods, services and facilities, and to carry out activities, appropriate to the current and future needs of local communities and of the wider public;

•    the responsibility for administering some regulatory systems under [the] Act; and

•    a role in the management, improvement and development of the resources of their areas.

54    Councils have a statutory charter to provide “adequate, equitable and appropriate services and facilities for the community and to ensure that those services and facilities are managed efficiently and effectively” and “to properly manage, develop, protect, restore, enhance and conserve the environment of the area for which it is responsible in a manner that is consistent with and promotes the principles of ecologically sustainable development”: Local Government Act, s 8(1).

55    The Act confers responsibilities on the City to protect the environment. See the Table in the note to s 23A. It would be inappropriate to take a narrow view of what is meant by environmental protection, especially in the light of the statutory charter.

56    Exceptions aside (see s 632(2A), which is presently irrelevant), s 632(1) entitles a council to erect a notice relating to the doing of anything in a public place or the use of the place or any part of it.

57    Section 632 appears in Pt 2 of Ch 16 of the Act. Chapter 16 creates offences. Pt 2 is concerned with offences in public places. Its evident purpose is to protect and preserve the public amenity in the interests of the whole community. Section 629 prohibits injury to or the removal of plants, animals, rocks and soil in or from a public place; s 630 prohibits breaking, throwing, placing or leaving bottles, glass or syringes in a public place; s 631 prohibits damaging, defacing or polluting public bathing places. Section 633(3) enables a council to erect notices relating to the conduct and dress of bathers, the use of public places for nude bathing and the use of “water-based recreational equipment” in those places. Section 633(1) makes it an offence in certain circumstances for a person to fail to comply with the terms of the notice.

58    The focus of these provisions is on activities that may cause damage to public places or inconvenience or injury to those who go there. So is the focus of the prohibition in question. Its end or purpose is to deter, if not prevent, activities which might cause damage to Martin Place, inconvenience or injury to those who go there, or which might otherwise detract from the use of the area as a public space accessible to and enjoyed by all. In this way, the prohibition aims to protect, enhance and conserve the public amenity in the interests and for the benefit of the entire community. Those ends are consistent with the City’s statutory responsibilities to provide equitable and appropriate facilities and services for the community, to ensure that they are managed efficiently and effectively, and to protect, enhance and conserve the environment of public places within its purview. Those ends are obviously compatible with the maintenance of our constitutionally prescribed system of representative and responsible government.

59    This brings me to the next question.

Is the prohibition reasonably appropriate and adapted to serve the identified legitimate ends (if any) in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

60    Mr O’Flaherty’s case is that the ends of the prohibition may be legitimate but the means by which the ends are achieved are not reasonably appropriate and adapted to serve those ends in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. He says that the arrests have had a chilling effect on the protesters’ activities, pointing to the dramatic reduction in the number of protestors prepared to stay overnight. He points out that of the 10 complaints made to the City about the protest, none of them related to staying overnight and none of them suggested inconvenience to the public. He also emphasises the absence of complaints to the police. He submits that there are other less drastic means by which the ends might have been achieved. He contends that the prescribed method – a total ban on staying overnight, punishable as a crime – is not reasonably necessary for that purpose. In other words, the means are disproportionate to the ends.

61    Mr O’Flaherty points out that, while not all the activities that carry a penalty under s 632(1) involve the exercise of the freedom of political communication, some do. He argues that an exception or defence could have been built into the prohibition to protect the implied freedom. He notes that s 632(3) of the Act expressly contemplates exceptions. He contrasts the prohibition with s 199 of the Law Enforcement (Powers and Responsibilities) Act 2007 (NSW) which makes it an offence to fail to comply with police directions but limits the exercise of the power by providing in s 200 that police officers are not authorised to give directions in relation to “an apparently genuine demonstration or protest”. He also points to the fact that new signs that the City has erected elsewhere in recent years do not ban staying overnight. They only prohibit camping.

62    In my opinion, the prohibition against staying overnight (and, for that matter, camping too) is reasonably appropriate and adapted to serve the legitimate ends of maintaining public health, safety and amenity in a high use public area and preserving the ability of all members of the public to use the area. Furthermore, it does so in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

63    There are several important points to note here.

64    First, neither the prohibition itself nor the law from which it derives its authority is one which in its character or object outlaws political communication. It is facially neutral. It is not directed to political communication or, for that matter, to communication of any kind. It does not target information or ideas. Nor is it aimed at suppressing symbolic expression (cf. Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525 at 554 [105] per Griffiths J). It simply regulates the time, manner and place of the communication as an aspect of regulating another activity. It does not have “as [its] direct operation, the denial of the exercise of the constitutional freedom in a significant respect” (Levy at 614 per Toohey and Gummow JJ). The effect of the law on freedom of political communication is incidental. It is also slight. It does not impede any form of communication for the greater part of the day and night. The prohibition does not ban or prevent communication, save in a limited and indirect respect. Nor does it prevent assembly or occupation of the site for hours on end throughout the day and into the night. What it does prevent is the use of a public place as a residence.

65    Secondly, the law is concerned with conduct, not words. In Levy Brennan CJ explained (at 595) that non-verbal expression may call for greater regulation than verbal communication:

[W]hile the speaking of words is not inherently dangerous or productive of a tangible effect that might warrant prohibition or control in the public interest, non-verbal conduct may, according to its nature and effect, demand legislative or executive prohibition or control even though it conveys a political message. Bonfires may have to be banned to prevent the outbreak of bushfires, and the lighting of a bonfire does not escape such a ban by the hoisting of a political effigy as its centrepiece. A law which prohibits non-verbal conduct for a legitimate purpose other than the suppressing of its political message is unaffected by the implied freedom if the prohibition is appropriate and adapted to the fulfilment of that purpose. Such a law prohibiting or controlling the non-verbal conduct, if it be reasonable in extent, does not offend the constitutional implication.

66    Thirdly, the attachment of a penalty is a significant consideration but it is not fatal: Levy at 614. Although it might be expected that the prohibition would deter people from staying overnight, it is doubtful whether it had any other impact on political communication. Numbers dwindled significantly in the first week of the protest with no police intervention.

67    Fourthly, the prohibition only applies in a discrete area. It does not preclude protest or any other form of political communication outside the area covered by the notices. Neither does it interfere with political communication in the chosen place for the greater part of the day, at night, or into the night. It would not prevent people from coming and going in Martin Place to express their views, even in the middle of the night if they so wished, provided that once they did so they departed.

68    Fifthly, it is beside the point that the new signs do not ban overnight stays. The new signs were not erected in Martin Place. There is no necessary reason why each public place should have the same restrictions on its use.

69    Sixthly, (camping aside) the prohibition applies during a limited period of time – a period during which pedestrian activity in the area is at its lowest and when it might reasonably be expected that the space would rarely be required for public assemblies of any kind, including political protests.

70    Martin Place is a popular precinct attracting a large amount of pedestrian traffic. No doubt that was one of the reasons the protesters decided to gather there. A survey of pedestrian use commissioned by the City shows that, between the hours of 8.00 am and midnight on a weekday in March 2007, more than 60,000 people passed through it and in July 2007, nearly 90,000. The prohibition facilitates and (the evidence indicates) is designed to accommodate cleaning at times when there is little pedestrian traffic and a negligible audience for any protest activities, minimising the impairment of any communication.

71    Seventhly, permitting protesters to stay overnight would detrimentally affect the City’s capacity to undertake the functions with which the Parliament entrusted it. At all events, it would interfere with the City’s capacity to do so efficiently, particularly if the protesters realised their ambition to occupy Martin Place indefinitely. It would also interfere with the rights of other members of the public to use the area. The fact that there were few complaints about Occupy Sydney from the public and that none of them concerned staying overnight is neither here nor there. Once the protesters were removed on 23 October 2011 very few stayed overnight again. In any case, whether the prohibition is constitutionally valid does not depend on how many complaints are made about the conduct it was designed to deter.

72    Mr O’Flaherty submitted that there was no rational basis for the respondents’ argument that staying overnight threatens to block access to Martin Place by members of the public not involved in the protest. He also submitted that there was no rational connection between the prohibition against staying overnight and the promotion of public health, safety and public amenity. I reject both submissions.

73    The more successful the protest, the more people are likely to be attracted to the cause and with this, the greater the interference with the rights of others wishing to use the space. What about those who needed to use it, for example, to gain access to Martin Place railway station from Macquarie Street or to leave the station to get to Macquarie Street?

74    The greater the number of people staying overnight, the greater the interference with the City’s capacity to carry out its maintenance responsibilities. On the evidence called by Mr O’Flaherty, the rally on 15 October 2011 attracted around 3,000 people. The police estimate at a given time was 600. Either way, the numbers are significant for the area. In theory, the protestors (or hundreds like them) could have stayed on the site for days, months, even years on end. That would have transformed Martin Place into an obstacle course, if not the private domain of the protesters, and made it extremely difficult (perhaps impossible) for the City to clean and conserve it. This would have had a deleterious effect on the environment and public health. It would also have deprived any other group (including those with a political message) of the use of the space. Mr O’Flaherty pointed to evidence elicited from Mr Harding that the Occupy Sydney protest had never impeded the City in hiring out or giving any other group access to Martin Place. But that evidence must be seen in the light of the enforcement of the prohibition on 23 October 2011.

75    I accept that the test is one of proportionality and that it is therefore relevant to consider whether there are less drastic alternatives but there are some important features of the test that Mr O’Flaherty’s submissions gloss over.

76    The first is that the alternative means must be means by which the objectives of the legislation could be achieved (cf.  Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 576 at [54] per McLachlin CJ and Monis v The Queen (2013) 87 ALJR 340; [2013] HCA 4 (“Monis”) at [280], [282], [347] per Crennan, Kiefel and Bell JJ). For the above reasons, the proposition that an exemption for political protest is a less drastic alternative must be rejected because it would not achieve the legislative objectives.

77    The second important feature is that the alternative means must be equally practicable and available (Attorney-General (SA) v Corporation of the City of Adelaide (2013) 87 ALJR 289 at 335-336; [2013] HCA 3 (“Corneloup”) at [206] per Crennan and Kiefel JJ). For the same reasons, providing an exception or defence for political protest would not be an equally practicable means of achieving the legitimate legislative ends. In supplementary submissions provided after the publication of the judgment in Courneloup, Mr O’Flaherty suggested as an alternative means a permit system, but did not indicate how such a system would operate. Presumably Occupy Sydney would seek permission to occupy Martin Place continuously for an unlimited period of time. A permit for such a purpose would be no more practicable than an exception for political protest.

78    Third, the inquiry into whether a law is reasonably appropriate and adapted to serve a legitimate end implies, as Heydon J pointed out in his dissent in Coleman v Power at 102-103 [328], that in a given case there may be a number of ways of achieving that end and that reasonable minds may differ about which is the most appropriate. The question of whether the means used go further than is reasonably necessary to achieve the legitimate end is not intended to signify that the selected means must be unavoidable, indispensable or essential (Mulholland v Australian Electoral Commission (2004) 220 CLR 181 (“Mulholland”) at 200 [39]–[40] per Gleeson CJ; Hogan v Hinch at [72] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; The State of Victoria v Sportsbet (2012) 207 FCR 8 (“Sportsbet”) at 84 [320] per Kenny and Middleton JJ, cf. Emmett J at [76]). Otherwise the word “reasonably” would be redundant. As Kenny and Middleton JJ pointed out in Sportsbet at 64 [233] (albeit in a different context), the concept of “reasonable necessity” has been used “substantially interchangeably” with the reasonably and appropriately adapted criterion. Crennan, Kiefel and Bell JJ explained in Monis at [347] that:

[w]here there are other, less drastic means of achieving a legitimate object, the relationship with the legislative purpose may not be said to be proportionate, at least where those means are equally practicable and available. Given the proper role of the courts in assessing legislation for validity, such a conclusion would only be reached where the alternative means were obvious and compelling … In such circumstances the means could not be said to be reasonably necessary to achieve the end and are therefore not proportionate.

79    Here, the alternative means are neither obvious nor compelling.

80    The legislature gave some latitude to councils to determine the content of the notices and to decide for themselves whether there should be exceptions, limitations or differential applications (see s 632(3)), no doubt because it could not envisage all the circumstances that might call for the councils’ attention. It may well be that some other means could have been deployed to achieve the legislative ends in this case. But the Court must give weight to the legislative judgment (Australian Capital Television Pty Ltd v The Commonwealth of Australia (1992) 177 CLR 106 at 144 per Mason CJ) and may not substitute its own opinion as to the best or most appropriate means of doing so (Rann v Olsen (2000) 76 SASR 450 at 483 per Doyle CJ, cited with approval by the Full Court of the Federal Court in Mulholland v Australian Electoral Commission (2003) 128 FCR 523 at 535 [34] and the High Court in Mulholland at 192 [32] per Gleeson CJ; Levy at 598 per Brennan CJ).

81    Mr O’Flaherty sought to draw parallels between this case and Coleman v Power in which legislation making it an offence to use insulting words in a public place was read down so as to exclude political communication and Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334 (“Adelaide v Corneloup”) in which a council by-law was held to be invalid for impermissibly burdening the implied freedom of political communication.

82    But in Coleman v Power the impugned legislation was targeted at communication, including political communication. Further, unlike the prohibition in the present case, the impugned legislation in Coleman v Power was not limited in its operation. It applied with respect to conduct in or within the hearing of all Queensland public places, at all times. But Adelaide v Corneloup was overturned on appeal to the High Court. In any event, it was never a good analogy. As in Coleman v Power the impugned legislation was directed at communication. It prohibited (amongst other things) unauthorised preaching, canvassing, haranguing and distributing publications. As French CJ observed in the appeal (at [67]), these are all activities of a kind that might be undertaken to communicate to members of the public matters which may be directly or indirectly relevant to politics or government at the Commonwealth level.

83    Levy is a better analogy. Like the impugned provision in the present case, Levy was concerned with a provision that had the effect, but not the purpose, of limiting the implied freedom. In that case the plaintiff, Mr Levy, was charged with the offence of entering land proclaimed as a permitted hunting area during prohibited times (duck hunting season) without holding a valid game licence, contrary to reg 5(1) of the Wildlife (Game) (Hunting Season) Regulations 1994 (Vic). Mr Levy claimed that the regulation was invalid and inoperative as beyond the powers of the Victorian Parliament because it infringed the implied freedom of political communication. His purpose was to protest against the Victorian hunting laws. An express objective of the Regulations was to ensure a greater degree of safety for people in hunting areas during the open season for ducks. Like Mr O’Flaherty, Mr Levy argued that by imposing a blanket prohibition to which criminal sanctions were attached, reg 5 was disproportionate to the legitimate purpose of protecting public safety. The inevitable result of the prohibition, he contended, was that it excluded first-hand observers and any accompanying media coverage to communicate the protesters’ political message in the most persuasive way. The Court rejected the argument. It was unanimously of the view that the regulation was appropriate and adapted to the fulfilment of the legitimate objective. As Kirby J pointed out at 648, no prohibition was imposed on Mr Levy or his fellow protesters during the time specified in reg 5, so long as it was outside the designated area. The duration of the prohibition was relatively short. The places were confined. Although some of the effectiveness of the protest would be lost because of the prohibition, the inhibition was not such as to render the regulation invalid. The same is true of the prohibition in the present case.

84    In summary, the prohibition is not targeted at political communication. Any restriction on political communication is confined in time, manner and place. The prohibition is reasonably appropriate and adapted to serve the legitimate ends of protecting public health, safety and amenity and preserving the ability of all members of the public to use the area. I am satisfied that it does so in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The prohibition strikes the necessary balance between the competing interests of political communication and the protection of the area for the benefit of all. Cf. Corneloup per Hayne J at [141].

Do the relevant notices impermissibly infringe any implied freedom of political association in the Constitution such that they are not validly authorised by s 632(2)?

85    In Kruger v The Commonwealth (1997) 190 CLR 1 Toohey, Gaudron and McHugh JJ each recognised an implied constitutional freedom of association. In Mulholland Kirby J did too. In the same case Gummow and Hayne JJ (at 229 [148]) accepted that “a freedom of association to some degree may be a corollary of the freedom of communication” but held that it was not a free-standing right to be implied from the Constitution and the test of infringement and validity is no different. Cf. Gleeson CJ at 196 [42]. This now seems to be the prevailing view of the Court: Wainohu v State of New South Wales (2011) 243 CLR 181 at 230 [112] Gummow, Hayne, Crennan and Bell JJ.

86    Thus, Mr O’Flaherty’s contentions based on an implied freedom of political association add nothing to his claims based on the implied freedom of political communication. Assuming the existence of an implied freedom of association and assuming it has been effectively burdened by the prohibition, for the above reasons the prohibition is reasonably appropriate and adapted to serve the legitimate ends of the legislation in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

87    In these circumstances it is unnecessary to consider whether there is an implied freedom of association or whether it has been infringed. For this reason the Court should not do so: ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 at [141]. See also Crosby v Kelly (2012) 203 FCR 451 at [46].

Is s 632(1) invalid?

88    Mr O’Flaherty submits that if the prohibition in the notice is not invalid, then s 632(1), which creates an offence for disobeying the notice, is. The reason he gave was that the section was over-drawn and could have provided for a defence that protected political communication or association. The point was not developed in oral argument. In my opinion, it is unpersuasive.

89    As the City submitted, if the prohibition is constitutionally permissible, then it must follow that the section authorising the prohibition is valid, for s 632(1) simply creates a means of enforcing the prohibition made under s 632(2). A person cannot commit the offence unless the relevant prohibition in the notice is within the power conferred by the section.

90    In any event, as I indicated earlier, the absence of exceptions directed to protecting political communications is neither here nor there. The fact that some laws provide for exceptions does not mean that those which do not are invalid. In our system of representative democracy the Court will not strike down a law restricting conduct which incidentally burdens freedom of political communication merely because some more limited restriction could suffice to achieve the legitimate legislative purpose: Coleman v Power at [31] per Gleeson CJ. As Brennan CJ put it in Levy at 598:

Under our Constitution, the courts do not assume the power to determine that some more limited restriction than that imposed by an impugned law could suffice to achieve a legitimate purpose.

91    The jurisdiction reserved to the courts is a jurisdiction only “to determine whether the means adopted could reasonably be considered to be appropriate and adapted to the fulfilment of that purpose”: Levy at 598 per Brennan CJ.

92    In Coleman v Power McHugh J (at [100]) explained that the reasonably appropriate and adapted test gives legislatures “a margin of choice”, sometimes referred to as “a margin of appreciation”, about how a legitimate end may be achieved, at least where the law does not impose a total ban on communications. He continued:

The constitutional test does not call for nice judgments as to whether one course is slightly preferable to another. But the Constitution’s tolerance of the legislative judgment ends once it is apparent that the selected course unreasonably burdens the communication given the availability of other alternatives. The communication will not remain free in the relevant sense if the burden is unreasonably greater than is achievable by other means.

93    The mere availability of other alternatives does not make the burden unreasonable.

94    In the present case, the burden is not unreasonably greater than is achievable by other means. Put another way, the means used to achieve the valid legislative objects are proportionate to those objects (cf. Courneloup per Crennan and Kiefel JJ at [202], Bell J agreeing at [224]).

Conclusion

95    I would therefore answer the questions posed by the parties in this way:

(1)    Do the relevant notices erected by the City in Martin Place under s 632(2) of the Local Government Act 1993 (NSW), in so far as they prohibit camping or staying overnight at Martin Place in the Sydney central business district, impermissibly infringe the implied constitutional freedom of political communication such that they are not validly authorised by s 632(2)? In particular:

(a)    Was Mr O’Flaherty engaged in communication about government or political matters?

    Yes.

(b)    Does the prohibition in the notices against staying overnight in its terms, operation or effect burden communication about government or political matters?

    Not in its terms, but in its operation or effect.

(c)    What are the legitimate ends of the prohibition? Are those ends compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

    The legitimate ends of the prohibition are maintaining public health, safety and amenity in a high use public area and preserving the ability of all members of the public to use the area. Those ends are compatible with the maintenance of the constitutionally prescribed system of government.

(d)    Is the prohibition reasonably appropriate and adapted to serve the identified legitimate ends in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

    Yes.

(2)    Do the relevant notices impermissibly infringe any implied freedom of political association in the Constitution such that they are not validly authorised by s 632(2)?

Unnecessary to answer.

(3)    Is s 632(1) of the Local Government Act invalid in so far as it creates an offence for failing to comply with the prohibition in the notices against staying overnight in Martin Place by reason of impermissibly infringing either or both implied freedoms?

No.

96    Consequently, the application must be dismissed. There is no reason why costs should not follow the event. I will make orders to that effect.

Associate:

Dated:    15 April 2013