Muldoon v Melbourne City Council [2013] FCA 994
| IN THE FEDERAL COURT OF AUSTRALIA | |
| First Applicant SARA LOUISE KERRISON Second Applicant | |
| AND: | First Respondent KEN LAY CHIEF COMMISSIONER OF POLICE Second Respondent STATE OF VICTORIA Third Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT DECLARES THAT:
The notice to comply issued by the first respondent under the Melbourne City Council Activities Local Law 2009 (the Local Law) to the second applicant on 18 November 2011 and the two notices to comply also issued by the first respondent under the Local Law to the second applicant on 28 November 2011 are invalid.
AND THE COURT ORDERS THAT:
1. The proceeding not continue as a representative proceeding.
2. The application to amend the Fourth Further Amended Originating Application by adding [2(c)] and [6(c)] is refused.
3. The application is otherwise dismissed.
4. Costs are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 1224 of 2011 |
| BETWEEN: | JAMES MULDOON First Applicant SARA LOUISE KERRISON Second Applicant |
| AND: | MELBOURNE CITY COUNCIL First Respondent KEN LAY CHIEF COMMISSIONER OF POLICE Second Respondent STATE OF VICTORIA Third Respondent |
| JUDGE: | NORTH J |
| DATE: | 1 october 2013 |
| PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
1 This proceeding arises out of the occupation of public gardens close to the centre of the City of Melbourne by a group called Occupy Melbourne and out of the response by the authorities to those actions. In November 2011 the group occupied Treasury Gardens, and briefly, Gordon Reserve. In December 2011 the group occupied Flagstaff Gardens.
2 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 world wide movement which shares the same philosophy and method of protest.
3 The applicants are involved with Occupy Melbourne and have been present for most of the time when the actions of the authorities were taken against the protesters. They seek to sue in a representative capacity. The first applicant seeks to represent the people who participated in the protest gatherings. The second applicant seeks to represent protesters against whom action was taken by the authorities.
4 The Melbourne City Council, the first respondent (the Council) is the local authority responsible for the administration of the public spaces in the City of Melbourne. Delegated legislation made by the Council under statutory powers restricted camping in tents, including in Treasury Gardens, Gordon Reserve and Flagstaff Gardens, restricted what items might be brought into the gardens, and provided mechanisms for the enforcement of the provisions. In respect of Flagstaff Gardens, the Council and the Minister for Conservation and Environment, as trustee, also made regulations in respect of similar matters.
5 The applicants claim that the enforcement of these provisions by the Council against the protesters was the main reason that the protest had to be called off. They contend that the statutory scheme and the enforcement action taken under it were unlawful. They seek declarations that the authorising statutes, the delegated legislation made under them, and the enforcement actions were unlawful, and they further seek injunctions restraining the Council from using the provisions against the protesters.
6 The Chief Commissioner of Police, the second respondent (the Chief Commissioner) commands the Victorian Police. The applicants asserted that Victoria Police assisted the Council in its enforcement of the provisions.
7 The State of Victoria is the third respondent. It has an interest in the proceeding because the delegated legislation which was enforced against the protesters was made under the authority of statutes made by the Parliament of Victoria.
8 The Attorney-General for the State of Victoria, (the Attorney-General), appeared as an intervener in response to service by the applicants of a notice under s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act) notifying that the proceeding involves a matter arising under the Constitution or involving its interpretation. The Attorney-General also intervened pursuant to s 34 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) which provides that the Attorney-General may intervene in any proceeding in which a question of law arises that relates to the application of the Charter.
9 The legislation and delegated legislation governing the use of the gardens is of central importance to the issues raised in the proceeding.
10 Section 111(1) of the Local Government Act 1989 (Vic) (the Local Government Act) provides:
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.
11 Pursuant to that statutory power the Council made the Melbourne City Council Activities Local Law 2009 (the Local Law) which applies to Treasury and Flagstaff Gardens and the Gordon Reserve and relevantly includes:
2.11 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.
4.1 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.
[Emphasis added]
12 Advertising sign is defined in cl 1.11 as including:
[A]ny 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.
[Emphasis added]
13 Clause 13.1 provides:
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.
14 Clause 13.2 provides:
The Council may grant a permit subject to such conditions as it thinks fit.
15 One method of enforcement provided by the Local Law is for the giving of a direction as follows:
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.
16 Another method of enforcement provided by the Local Law is for the issue of a notice to comply. The relevant clauses applicable to this procedure are as follows:
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.
[Emphasis added]
17 Clauses 14.19 to 14.24 then provide:
14.19 Any authorised officer may in urgent circumstances arising as a result of a failure to comply with this Local Law, take action to remove, remedy or rectify a situation without the necessity to serve a Notice to Comply provided:
(a) he or she considered the circumstances or situation to be sufficiently urgent and that the time involved or difficulties associated with the serving of a Notice to Comply, may place a person, animal, property or thing at risk or in danger; and
(b) details of the circumstances and remedying action are forwarded as soon as practicable to the person on whose behalf the action was taken.
14.20 The action taken by an authorised officer under 14.19 must not extend beyond what is necessary to cause the immediate abatement of or to minimise the risk or danger involved.
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.
14.22 If an authorised officer has confiscated anything in accordance with this Local Law, the Council may refuse to release it until the appropriate fee or charge for its release has been paid to the Council.
14.23 As soon as it is reasonably practicable to do so, the authorised officer must serve a written notice in a form that is prescribed by the Council from time to time on the owner or person responsible for the confiscated item setting out the fees and charges payable and time by which the item must be retrieved.
14.24 If after the time required in a notice a confiscated item is not retrieved, an authorised officer may take action to dispose of the confiscated item according to the following principles:
(a) where the item has no saleable value, it may be disposed of in the most economical way; and
(b) where the item has some saleable value the item may be disposed of either by tender, public auction or private sale but failing sale may be treated as in sub-clause (a);
(c) where the owner has advised the Council in writing that the Council may dispose of the goods because he or she does not intend to retrieve them, the Council may dispose of them by the method identified in sub-clauses (a) and (b).
18 Most of the discussion concerning the Local Law in these reasons for judgment relate to cll 2.11, 4.6 and 14.13 of the Local Law. These provisions together will be referred to as the impugned Local Laws.
19 Flagstaff Gardens are not only subject to the statutory power in the Local Government Act, but also to the statutory power contained in the Crown Land (Reserves) Act 1978 (Vic) (the Crown Land Reserves Act). A general regulation making power is provided in s 13(1)(a) as follows:
(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-
[a series of items about which no point is taken in this case]
20 On 12 January 1995, the Minister for Conservation and Environment and the Council, as trustee, with the approval of the Governor on the advice of the Executive Council, made the Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations (1994) (Vic) (the Regulations) which applied to Flagstaff Gardens and which included prohibitions on camping with tents and ancillary provisions as follows:
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. (3) 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.
…
(6) In the case of property removed in accordance with this regulation the Committee or an Appointed Officer must within 48 hours –
(a) contact the owner, if known, and make arrangements for him or her to claim that property; or
(b) if the owner is not known, display a notice at a suitable location at or near where the property was found detailing –
(i) the name of the Appointed Officer responsible for the removal of the property; and
(ii) a contact telephone number for the Appointed Officer; and
(iii) reference to the relevant Regulations; and
(iv) a period of time, not less than 7 days, from the date of the notice for the owner to claim and remove the property.
[Emphasis added]
21 Most of the discussion in these reasons for judgment concerning the Regulations relate to cl 21 and cl 34 of the Regulations. These provisions together will be referred to as the impugned Regulations.
22 The final form of the claims made by the applicants appear in the Fourth Further Amended Originating Application as set out below. There is an outstanding application for leave to amend by adding [2(c)] and [6(c)]. The applicants claim:
1. A declaration that the issue of each Notice was ultra vires the powers conferred on an authorised officer under the Local Law, by reason that the authorised officer could not lawfully or reasonably have suspected the conduct described in the Notice to be prohibited by cll 2.11 and/or 4.6 of the Local Law;
2. Declarations that the issue, the threat to act upon, and the enforcement of each notice to comply contained in Annexure SK-2 and SK-3 to the affidavit of Sara Louise Kerrison affirmed 14 December 2011 was ultra vires the powers conferred on an authorised officer under the Local Law, by reason that:
(a) cll 2.11, 4.6 and/or 14.12 to 14.24 of the Local Law, insofar as they apply to the Protest [which 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 indentified by the persons participating in them as, the Occupy Melbourne movement] and to the Protesters [which was defined to mean each person who has been a participant in one or more of the various assemblies constituting the Protest] , impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution;
(b) such actions were incompatible with one or both of the Charter rights [the right to freedom of expression and the right to peaceful assembly and freedom of association described in ss 15(2) and 16 respectively of the Charter]; and
(c) the decisions to issue and act upon the said notices to comply were made without proper consideration of the Charter rights as required by s 38 of the Charter.
3. Declarations that the making of each of cll 2.11 and 4.6 of the Local Law and/or 14.12 to 14.24 of the Local Law, insofar as they apply to the Protest and the Protesters, was ultra vires the powers conferred on the First Respondent under s 111 of the Local Government Act 1989 (Vic), by reason that:
(a) the clauses impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution; and
(b) such action was incompatible with one or both of the Charter rights.
3A. A declaration that s 111 of the Local Government Act 1989 (Vic) is invalid to the extent that:
(a) cll 2.11 and 4.6 and cll 14.12 to 14.24 of the Local Law apply to the Protest and the Protesters; and
(b) the Local Law contains those clauses.
4A. A declaration that the enforcement activities undertaken in the Applicable Area [Flagstaff Gardens] by the First Respondent and/or its Relevant Persons [Council officers] purportedly pursuant to or in reliance upon the Regulations, being the conduct described in paragraphs 93 to 99 of the affidavit of Sara Kerrison affirmed on 14 December 2011 and paragraphs 34 and 60 of the affidavit of Sara Kerrison affirmed on 6 March 2012, were unlawful, by reason that the Regulations were not in force at the times that those enforcement activities were undertaken.
5. Declarations that the enforcement activities undertaken by the First Respondent and its Relevant Persons in the Applicable area and described in paragraph 4A above were ultra vires the powers conferred on Appointed Officers under the Regulations, by reason that:
(a) regs 18, 21 and/or 33 and 34(3) of the Regulations, insofar as they apply to the Protest and to the Protesters, impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution; and
(b) such activities were incompatible with one or both of the Charter rights.
6. Declarations that the making of regs 18, 21, 33 and 34(3) of the Regulations, insofar as they apply to the Protest and the Protesters, was ultra vires the powers conferred on the First Respondent under s 13 of the Crown Land (Reserves) Act 1978 (Vic), by reason that:
(a) the clauses impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution;
(b) such action was incompatible with one or both of the Charter rights; and
(c) the decisions to engage in the enforcement activities were made without proper consideration of the Charter rights as required by s 38 of the Charter.
6A. A declaration that s 13 of the Crown Land (Reserves) Act 1978 (Vic) is invalid to the extent that:
(a) cll 18, 21 and/or 33 and 34(3) of the Regulations apply to the Protest and the Protesters; and
(b) the Regulations contains those clauses.
6B. Declarations that:
(a) in purportedly issuing the Notices, and/or the other notices contained in Annexure SK-2 and SK-3 to the affidavit of Sara Kerrison affirmed on 14 December 2011, and in conducting activities purportedly to enforce the said notices, officers of the First Respondent were not performing their duties within the meaning of s 224(8) of the Local Government Act 1989 (Vic); and
(b) in engaging in certain activities in the Applicable area, purportedly to enforce the Regulations – as described at paragraph 93 to 99 of the affidavit of Sara Kerrison affirmed on 14 December 2011 and paragraphs 34 and 60 of the affidavit of Sara Kerrison affirmed on 6 March 2012, officers of the First Respondent were not performing their duties within the meaning of s 224(8) of the Local Government Act 1989 (Vic).
(c) s 458(1) of the Crimes Act 1958 (Vic) did not authorise Victorian police officers to apprehend protesters in reliance upon s 224(8) of the Local Government Act 1989 (Vic) in relation to the notices and activities set out in sub-paragraphs 6B(a) and (b) above.
Injunctions
7. An injunction restraining the First Respondent and its Relevant Persons from acting under or pursuant to cll 2.11 and 4.6 of the Local Law insofar as those provisions apply to the Protest and the Protesters.
8. An injunction restraining the First Respondent and its Relevant Persons from acting under or pursuant to cll 14.12 to 14.24 of the Local Law, insofar as those provisions apply to cll 2.11 and 4.6 of the Local Law in relation to the Protest and the Protesters.
9. In the alternative, an injunction restraining the First Respondent and its Relevant Persons from acting under or pursuant to cll 14.12 to 14.24 of the Local Law, insofar as those provisions apply to cll 2.11 and 4.6 of the Local Law in relation to the Protest and the Protesters.
10. An injunction restraining the First Respondent and its Relevant Persons from acting under or pursuant to regs 18, 21, 33 and 34(3) of the Regulations, insofar as those regulations apply to the Protest and the Protesters.
23 The applicants relied on the affidavits of James Muldoon, the first applicant, affirmed on 12 December 2011 and 6 March 2012, and the affidavits of Sara Louise Kerrison, the second applicant, affirmed 14 December 2011 and 6 March 2012. Both applicants were cross-examined. The applicants also relied on the affidavit of Jeffrey Ronald Reinten affirmed 12 December 2011. He was not cross-examined.
24 The first applicant gave evidence principally about the ideas behind the Occupy Movement, and some evidence about the events which made up the protest and the response by the Council. The second applicant gave more detailed evidence about how the protest was conducted and the way the Council acted which brought the protest to an end. Mr Reinten's affidavit concerned some of the events of the protest, and the way the actions of the Council interfered with the protest.
25 The Council relied on the affidavit of Samuel Benjamin Schwarz, the Manager of Parking and Traffic of the Council, affirmed on 20 February 2012. Mr Schwarz was cross-examined. The evidence of Mr Schwarz mainly concerned the enforcement of the provisions by the Council. The Council also relied on the affidavits of Ian Gordon Shears, the Manager of Urban Landscapes Branch of the Council, affirmed on 17 February 2012, and 16 March 2012. Mr Shears' affidavits described the functions of the Council and its strategies and policies applicable to the protection, preservation and regulation of the equitable use of the gardens. Mr Shears was not cross examined.
26 The Chief Commissioner relied on the affidavits of Peter Anthony O'Neill, sworn on 17 February 2012 and 15 March 2012. Superintendent O'Neill was in charge of the police operation. He gave a detailed account of the preparations for the police support of the Council officers in the enforcement of the provisions. He also chronicled the observations made by officers of Victoria Police of the actions of the protesters. He was not cross-examined.
The philosophy of the Occupy Movement
27 The Occupy Melbourne protest was inspired by the Occupy Wall Street protest which commenced in September 2011. The New York protest sparked many similar protests in cities throughout the world including, in the United Kingdom in London, in Canada in Toronto, Vancouver, and Calgary, in New Zealand in Auckland, and in the United States, in Boise, Augusta, Columbia, Minneapolis and Fort Myers.
28 Occupy Melbourne is a protest against economic inequality that exists within Australian society and the world. It is 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 follow Occupy Melbourne believe that the Australian democratic processes are ineffective and need to be reformed. Occupy Melbourne intends to build a functional grassroots democratic form of governance in Australia.
The mode of protest of Occupy Melbourne
29 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.
30 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 it 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.
31 Occupy Melbourne had working groups which performed functions relevant to the organisation including media, logistics, kitchen, education, first aid and care, womens' group, facilitation and community outreach.
32 Occupy Melbourne has a presence in social media and on the internet. For instance, on 7 December 2011, 13,335 people indicated on Facebook that they liked the Occupy Melbourne Facebook page, and 2,141 indicated they were talking about the page. On the same day 6,061 people indicated that they followed Occupy Melbourne on Twitter. Up to that day the Occupy Melbourne website had been visited 251,721 times. On 6 December 2011 alone it was visited 4,776 times.
33 Although the events with which this proceeding is concerned commenced on 2 November 2011, it is useful to record the lead up to those events to show the context in which they occurred.
34 On 10 October 2011, Victoria Police learned of the plan for an Occupy Melbourne rally to be held at City Square on 15 October 2011 and they commenced preparations for that event. The rally was attended by about 400 people. The City Square protest continued for six days. There were about 100 to 150 people present at the protest during the day and 50 people at night. A kitchen was established and generators were brought to the site.
35 On 20 October 2011, the Council formally requested Victoria Police to evict the protesters from the City Square. Late in the afternoon on 20 October 2011, Inspector Bernie Jackson of Victoria Police addressed the general assembly of Occupy Melbourne. He told them of the decision of the Council that the protesters were to be evicted from the City Square if they did not leave, and that Victoria Police would assist the Council.
36 The next morning the Council officers served a number of notices to comply which required the removal of tents and other structures within about an hour. The protesters then numbering about 80 to 100 commenced preparations to resist by building barricades out of milk crates and by collecting rocks and bottles filled with white or yellow liquid. Through the morning Council officers removed tents and equipment. Victoria Police gave the protesters further directions to leave. At about 12.40 pm the protesters were forcibly removed. Then, about 250 protesters sat on the roadway at the intersection of Swanston and Collins Streets. At 1.30 pm the police forcibly removed the protesters from the intersection because they were causing major traffic disruption and the police were concerned that the situation might escalate because members of the public were becoming irate at the traffic jams. The protesters, then numbering about 300, assembled about 50 metres further along Swanston Street in front of Melbourne Town Hall. The police directed the protesters to leave and some protesters were arrested. They again regrouped at the intersection of Bourke and Swanston Streets and blocked traffic by linking arms. About 105 protesters were arrested at this point. Negotiations were then conducted which resulted in the protesters, then numbering about 200, agreeing to leave and march to the State Library.
37 On 29 October 2011, the protesters gathered at the State Library, moved to City Square, and then onto Treasury Gardens. There were about 400 to 500 protesters at Treasury Gardens. In the afternoon the protesters left Treasury Gardens and marched down Spring Street. By then there were about 1000 protesters marching.
38 The protest continued over the next few days in the City of Melbourne and commenced at Treasury Gardens again on 2 November 2011. It is at this time that the events with which the proceeding is concerned commenced.
39 Occupy Melbourne made a number of applications to the Council for permission to occupy the gardens. Although the applications were first made shortly after the start of the occupation of Treasury Gardens, it is convenient to refer to them now before describing that occupation.
40 On 4 November 2011, Occupy Melbourne lodged two applications for a permit apparently under cll 2.11 and 4.6 of the Local Law. These were superseded by an application lodged on 8 November 2011.
41 The application lodged on 8 November 2011 was refused on 11 November 2011.
42 Then Occupy Melbourne lodged a further application on 17 November 2011, which was refused on 24 November 2011.
43 The way in which the applications were made and determined is relevant to the practical effect and operation of cll 2.11 and 4.6 of the Local Law. The application dated 8 November 2011 was determined on 11 November 2011 by Mr Cutter who was the Director of City Business.
44 The application sought a permit from 8 November 2011 until 31 December 2011 with an indication that it may need to be extended for the continuation of the protest. The application stated in part:
Estimated numbers: Occupy Melbourne has a fluctuating community based membership. It tends to be larger on weekends, at general assemblies, and at special marches organised to publicise the key messages of Occupy Melbourne. Between 30 and 100 people have maintained an overnight presence as a part of Occupy Melbourne; however this number is subject to change according to the changes in the social movement. General Assemblies, which last approximately 2 hours, have seen numbers swell to approximately 500 people. This number is also subject to change, however the General Assemblies have a far lesser potential impact on the environment, being as they are, for such a finite period of time. The Logistics Working Group also works to mitigate any impact that the increased numbers at General Assemblies may have on the gardens or the public's use of them.
…
4. EVENT LOCATION
Location: Presently the Occupy Melbourne protest is based at Treasury Gardens. From time to time the protesters conduct marches through the city and hold meetings at City Square; however the majority of activities will be held at Treasury Gardens where protesters will be situated.
5. PROPOSED EVENT INFRASTRUCTURE
We need to feed people at the protest and run a communal kitchen for people at the protest and people who would like to eat with us also. We will require a marquee to cover the kitchen and food preparation area, permission for a small generator or access to electricity to assist us with refrigeration, access to taps for hygiene, recycling and intractable waste collection. Other marquees will be necessary for provision of shelter to protect the occupiers and the public amenities that serve them – for example first aid and information.
We can assist City of Melbourne by maintaining cleanliness and ensuring our presence does not negatively impact on the environment through communication with protesters and our Working Groups.
We need to provide protection from the elements for protesters (sun and wind and rain) as they maintain their continuous presence. We are able to co-ordinate regular rotations of any items that may otherwise impact on grass or other aspects of the environment to ensure the impacts are minimized.
45 The application then proffered a number of ways the organisers could work cooperatively with the Council to address concerns which the Council might have.
46 Mr Cutter responded with a written refusal of the permit which included the following:
From your application it appears you are seeking a permit to camp under clause 2.11 of the Councils Activities Local Law 2009 (local law) and to place objects / things under 4.6 of the local law.
…
In considering the application I have taken into account and weighed up a number of factors including:
• The application relates to a protest, which I assume will engage the human right to freedom of expression under section 15 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) and the right to peaceful assembly and association under section 16 of the Charter;
• The constitutional right protecting political communication;
• The proposal relates to a period of the onset of summer, which is historically a time that the Gardens need additional care and attention;
• The potential impact of the application on the Treasury Gardens and their use, including:
Ο The potential to obstruct other users of the Gardens. For example a number of other applications and existing bookings exist in respect of the area requested including six weddings, four corporate Christmas parties and two community events;
Ο The limited facilities in and around the Gardens in respect to matters such as water, toilets, food, lighting;
Ο Public health, safety and hygiene issues involved in food preparation including the risks of fire and cooking;
Ο The potential impact of the activities including the proposed tent and marquees on the heritage gardens and the flora and fauna in the gardens including irrigation / watering;
Ο The extended period of time sought would exacerbate the above impacts and, in my view, lead to significant damage to the Gardens requiring reinstatement and associated costs;
Ο The nature of the event is not in line with the Council's Sustainability Guidelines for Parks and Gardens;
Ο Noise emanating from the activities and its impact on surrounding residents.
• The application does not provide for any insurance including public liability insurance and I am of the view that the applicant would not be able to obtain adequate and appropriate insurance to protect the Council's interest.
In balancing the above matters I have formed the view that the potential impact of the activities subject to the permit is unacceptable.
I have also formed the view that if the permit application is unsuccessful this will not impose either a burden on political communication or limit your charter rights noting that people would still be able to use the Gardens for the purpose of protest.
As a result I have determined to refuse your application.
[Emphasis added]
47 The later application was in a similar form although it sought separate permits for each of six items, namely, general information and first aid marquee, political signs, communal sleeping marquee, Indigenous marquee, kitchen marquee and shade cloth. This application was refused for the same reasons except in relation to signs. In relation to that application Mr Cutter responded as follows:
Application 2
In relation to Application 2 (political signs) I note that you have indicated:
1. You are seeking permission on behalf of other protestors to use their own signs.
2. Permission is not sought for the signs to be affixed in any way on or between any part of a building, plant, pole, post, or other structure;
3. The signs will be affixed to any marquees that are permitted, or placed on the ground or held by protestors.
4. Any permission that is granted can be subject to any reasonable conditions considered necessary to protect the amenity of the Gardens;
5. A condition may be imposed that the content of the signs is not to contravene any law.
I note that insofar as a permit is sought to have signs held by you or other protestors, it is not necessary to seek a permit from Council under the local law. Council does not regulate the use of hand held political signs under the local law. I also note that you have indicated that signs will not be affixed to any structure or asset other than a marquee (if permitted). The only aspect of your permit application that I need to consider, therefore, is the placing of signs on the Gardens.
In relation to Part 1 of Application 2 "general political signs", I have determined that your application in relation to the placement on the ground of the four signs listed in your application (the signs) is accepted, subject to the following conditions, which I consider are reasonably necessary to protect the amenity of the Gardens;
• The depth of each of the signs must be minimal (having regard to likely impact of the signs on the Gardens);
• You must ensure the signs are placed clear of the automatic irrigation system when in operation;
• The signs must not be staked into the ground;
• The signs must be secured with appropriate weighting to ensure safety of people in the vicinity;
• Having regard to the weighting of the signs you must ensure that the signs location is rotated on a daily basis ensuring that each space used by a sign is left to rest for not less than a day after each 24 hour of use;
• In the event that an Authorised Officer notifies you that s/he has reasonable concerns that a sign is causing an unacceptable loss of amenity to the Gardens, you must ensure the reasonable directions of the Authorised Officer are complied with within the time given by the Authorised Officer;
• You must agree to indemnify Council for remediation costs incurred by Council in the event of damage occurring to the Gardens by the placement of the signs.
I have formed the view that the conditions imposed in relation to Part 1 of the Application 2 will not impose either an unreasonable burden on political communication or limit your Charter rights.
In relation to Part 2 of the Application 2, I assume that the protest signs that you refer to will be hand held, in those circumstances no permit is required.
[Emphasis added]
The protest at Treasury Gardens
48 During November 2011 when the occupation of Treasury Gardens was underway the protesters publicised their protest by gatherings in other parts of the city. They also used chalk drawings on the footpaths and signs around Treasury Gardens. A notice to comply was issued in respect of each of two signs and there was some dispute about whether the Council tolerated other signs. The Council also took no action against protesters who slept in Treasury Gardens in sleeping bags without tents.
49 Things at Treasury Gardens were relatively quiet in the first two weeks of November. There were usually around 20 protesters in the gardens, sometimes down to 15 and other times up to 60. Generally assemblies attracted larger numbers but these were usually held in City Square.
50 By 15 November 2011, the occupation, which had begun to increase in size, caused Mr Schwarz to become concerned about the potential damage to the gardens. On that day he saw large tarpaulins with mattresses, sleeping bags and other personal belongings, crates, boxes of food and cooking utensils stored on them. Mr Schwarz served four notices to comply in respect of this situation.
51 Then, on 16 November 2011, Mr Schwarz again visited the site. He observed a marquee in which a person was sleeping. He also observed eight personal tents used for sleeping and about six large tarpaulins with personal belongings on them. He estimated that about 20 to 25 people were sleeping or awake in tents. He had a conversation with one of the organisers who asked what items could be left and what items removed. Mr Schwarz described the conversation thus:
I informed him that if the site reverted back to the way it had been previously that that would be acceptable. By that I meant that if people were sleeping overnight in sleeping bags, but not with any structures, and during the day putting their gear on a small tarp and moving it during the day, or as directed by Local Law officers, we could definitely tolerate that. I told him that we definitely would not allow tents or tent like structures to remain. I told him I was concerned about the volume of materials. I wanted to give Manu [one of the organisers] some time to discuss these issues with the group. I told him that I would come back with Local Law officers within the next half hour and we would issue notices if we took issue with anything we saw.
As the items were not removed Mr Schwarz issued five notices to comply in relation to them.
52 About an hour later Mr Schwarz returned. Eighty police also attended and a marquee and several personal tents were removed. The marquee was draped with Aboriginal flags and signs reading "Treaty Now". It was used as a centre for communication about Indigenous issues. The protesters physically resisted the removal of the marquee. Mr Schwarz said that he had observed a person sleeping in this marquee. The affidavit of the second applicant affirmed on 6 March 2012 gave a detailed response to Mr Schwarz's affidavit but did not contest this evidence. Mr Schwarz's evidence that the marquee was used for sleeping should be accepted.
53 By 18 November 2011, Mr Schwarz had become more concerned about the volume of materials potentially causing damage to the gardens. Fifteen notices to comply were issued that day. Late in the evening there were 20 to 30 protesters present. They set up a seven by three metre tarpaulin supported by one to 1.5 metre tent poles as a communal sleeping structure. Six protesters linked arms and resisted Council officers who dismantled the structure. Eighty police attended to maintain public order. The protesters remained in the gardens overnight. There was a storm and a good deal of rain. The protesters could not sleep. Without shelter the protesters and their sleeping materials got wet. As a result on the following day the protesters were exhausted and demoralised.
54 For the balance of November there were usually 30 to 50 protesters in Treasury Gardens. They generally had five or six, but up to 15, small tents, some large tarpaulins with gear on top, and several larger tents or marquees. The Council issued notices to comply on most days as follows: 21 November – 4; 23 November – 12; 25 November – 6; 26 November – 13; 27 November – 12; 28 November – 16; 29 November – 8; and 30 November – 11.
55 The protesters sometimes removed the items which were the subject of the notices to comply, and on other occasions Council officers removed the items. Police attended to ensure the maintenance of public order. On a couple of occasions when Council officers removed tents and tarpaulins there were up to 35 police present, but generally a much smaller number. The protesters also had kitchen, first aid, and communication marquees.
56 The protesters briefly moved to Gordon Reserve on 28 November. Then, on 30 November 2011, the protesters relocated to Flagstaff Gardens.
The protest at Flagstaff Gardens
57 On 1 December 2011 there were nine small dome tents and two gazebo structures erected in Flagstaff Gardens by the protesters.
58 From 1 to 7 December 2011, the police positioned a mobile van as a 24 hour, seven day per week command post at the corner of La Trobe and William Streets about 20 to 30 metres from the protesters.
59 On 5 December 2011, the Council commenced a 24 hour presence at Flagstaff Gardens to deter the erection of more tents and structures. Two Council officers remained in a car parked near the protesters.
60 Between 1 and 5 December 2011, the protesters continued to erect tents. There were usually about 15 protesters and six tents during these days. The Council issued notices to comply generally directed to the removal of tents and other associated items as follows: 1 December – 11; 2 December – 7; and 4 December – 7.
61 On 4 December 2011, some of the protesters began using tents in a different way. Instead of erecting them in the gardens, they cut holes for head, arms and legs in the tent fabric and then utilised the tent as a garment. The protesters called these garments tent costumes.
62 On 5 December 2011, the Council determined that it would no longer use the notice to comply procedure at Flagstaff Gardens. The Regulations applied to these gardens and did not require the service of such a notice. In future at Flagstaff Gardens the Council officers would ask protesters to remove tents or other structures or items. If the protesters did not do so, the Council officers would remove the tents, structures and other items after a short time. The Council and the police told the protesters that the Council would no longer rely on notices to comply. They also said that the tent costumes were not permitted in Flagstaff Gardens because the protesters were using the tents for camping in breach of the Regulations. The protesters were told that the tent costumes would be removed.
63 On 6 and 7 December 2011, the second applicant and another protester respectively refused to remove the tent costumes they were wearing. Council officers, and later with the assistance of police, then removed the tent costumes from the two protesters.
64 For the remainder of December 2011 in Flagstaff Gardens, Superintendent O'Neill reported that there continued to be about 15 to 30 protesters. Sometimes they erected small tents, but removed them when asked by Council officers. They slept on tarpaulins in sleeping bags.
65 Two of the notices to comply related to signs. One notice was issued on 14 November 2011 in relation to a notice which stated "Occupy Melbourne Discussion Group Occupy Movement Civil Rights – Human Rights". The notice was issued as soon as the sign was placed on the ground. Mr Schwarz did not issue the notice, and thought that it was a mistake to do so.
66 The other notice to comply in relation to a sign was issued on 25 November 2011. The sign was erected in Treasury Gardens and consisted of words written on cardboard boxes. Mr Schwarz said that there were many other signs in and around Treasury Gardens but notices were issued only in relation to these two. The second applicant disputed this evidence. She said that other notices to comply were issued in relation to signs, particularly in February 2012, and that on numerous occasions the Council officers directed that signs be taken down. The notices to comply issued in February 2012 were produced by the second applicant.
The enforcement activities under the Regulations
67 In addition to the relief sought in respect of the notices to comply, the Fourth Further Amended Originating Application sought a number of declarations including in [4A] that the enforcement activities of the Council under the impugned Regulations were unlawful. These activities were defined as the conduct described in [93] to [99] of the second applicant's affidavit affirmed on 14 December 2011, and in [34] and [60] of the second applicant's affidavit affirmed on 6 March 2012.
68 The conduct referred to in the affidavit affirmed on 14 December 2011 and in [60] of the affidavit affirmed on 6 March 2012, related to the incident referred to in [63] of these reasons for judgment when the Council officers, assisted by the police, removed the tent costume from the second applicant.
69 The conduct referred to in [34] of the affidavit affirmed on 6 March 2012 related to an Occupy Melbourne banner which identified the protests at Flagstaff Gardens. The second applicant said that this was removed by the protesters as a result of verbal directions by Council officers in order to avoid having it confiscated by the Council.
The reason for the Council's actions
70 Mr Shears' affidavit explained that public open spaces are set aside primarily for recreation, nature conservation, passive outdoor enjoyment and public gatherings. The Council has 132 sites covering 442 hectares of public open space under its control and management. It seeks to manage these spaces in a fair and equitable manner which often involves balancing competing interests particularly in relation to gardens close to the central business district like Treasury and Flagstaff Gardens. At the time of the last survey in 2000 there were over 10 million visitors to the Council's parks and gardens each year. One of the most frequently visited parks was Flagstaff Gardens with over 1.7 million visitors per year.
71 Mr Shears also explained that the Council has an urban forest strategy. The parks and gardens, especially the older gardens like Treasury and Flagstaff Gardens, need to be carefully managed because they contain a dominance of elm and plane trees. Those trees are coming to the end of their lives and have been adversely impacted by drought in recent times.
72 The Council has impact guidelines which govern the use of the gardens for events so that the number and size of events do not exceed the capacity of the gardens. A high impact event lasts for more than five days and/or has more than 10,000 people. A medium impact event last between two and five days and/or has between 1,000 and 10,000 people. A low impact event lasts not more than a day and/or has not more than 1,000 people. The Council has assessed that Treasury and Flagstaff Gardens should not have any high impact events, may have four medium impact events per month, and 25 low impact events per month. Mr Shears said that the gardens are not designed to accommodate short or long term living.
73 He also explained that both Treasury and Flagstaff Gardens are historically and horticulturally significant. Both are recognised by listings by Heritage Victoria and the National Trust. In both cases a large number of trees have a life expectancy limit of one to 10 or 11 to 20 years.
74 Mr Shears expressed concern about people seeking to occupy these gardens for lengthy or indefinite periods. Under the impact guidelines this type of occupation would be a high impact event and should not be permitted in either of the gardens in issue.
75 Mr Shears considered the impact on other people of an indefinite occupation of Treasury and Flagstaff Gardens. The occupation would be unfair on others who already hold permits to have weddings, festivals, parties, sporting events, rallies or personal training. These events are of limited duration and do not substantially impact on other uses.
76 An indefinite or lengthy period of occupation presented a danger of damage to lawn areas and trees, and of interference with the Council's maintenance activities of the gardens. Furthermore, the gardens do not have the infrastructure, such as toilets or showers, for such an occupation.
77 Mr Schwarz said that the Council had significant concerns about damage to the lawns and trees particularly when he observed an increase in the number of tents and equipment being used in the gardens. He said that he observed areas of lawn dying because items had been placed on the lawns. The second applicant responded that she had not seen any substantial damage to the lawns and trees. She said that the protest was moved several times to minimise the impact of the protest on the gardens.
78 These reasons for judgment address the following major issues and come to the conclusions indicated.
1. Whether the challenges to the Local Government Act and the Crown Land Reserves Act and the impugned Local Laws and the impugned Regulations made under them respectively are matters arising under the Constitution or involving its interpretation such that the Court has jurisdiction under s 39B(1A)(b) of the Judiciary Act.
The Court accepts the applicants' argument that the Court has jurisdiction.
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.
The subject matter of the proceeding
79 The applicants contended that the Court has jurisdiction under s 39B(1A)(b) of the Judiciary Act which provides:
The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
…
(b) arising under the Constitution, or involving its interpretation;
80 In order to determine whether the Court has jurisdiction it is necessary to identify the controversy which the Court is asked to address. The way in which the case developed pre-trial gave rise to some confusion whether the applicants challenged the validity of s 111 of the Local Government Act and s 13 of the Crown Land Reserves Act or whether they challenged the validity of the impugned Local Laws and Regulations made respectively under the Acts. It is necessary to explain the way the confusion arose.
81 The proceeding was commenced by an application supported by affidavits. The parties agreed to proceed by way of written submissions rather than by way of pleadings.
82 The applicants filed their written submissions on 8 March 2012. At this time the then current application namely the Third Further Amended Originating Application relevantly claimed:
3. Declarations that the making of each of cll 2.11 and 4.6 of the Local Law and/or 14.12 to 14.24 of the Local Law, insofar as they apply to the Protest and the Protesters, was ultra vires the powers conferred on the First Respondent under s 111 of the Local Government Act 1989 (Vic), by reason that:
(a) the clauses impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution; and
(b) such action was incompatible with one or both of the Charter rights.
…
6. Declarations that the making of each of regs 18 and 21 of the Regulations and/or reg 34 of the Regulation, insofar as they apply to the Protest and the Protesters, was ultra vires the powers conferred on the First Respondent under s 13 of the Crown Land (Reserves) Act 1978 (Vic), by reason that:
(a) the clauses impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution; and
(b) such action was incompatible with one or both of the Charter rights.
[Emphasis added]
83 The issue concerning the impugned Local Laws and the Regulations was described in the applicants' written submissions as follows:
Are any one or more of cll 2.11, 4.6 and 14.13 of the Local Law and regs 21 and 34 of the Regulations cumulatively or separately invalid insofar as those provisions purport to apply to the Protest and the Protesters, by reason that the clauses impermissibly burden the implied freedoms of political communication and association under the Constitution?
84 The issue of jurisdiction was dealt with briefly as follows:
The Application invokes the Court's jurisdiction under s 39B(1A)(b) of the Judiciary Act 1903 (Cth) (the Judiciary Act) – the matter is one arising under the Constitution or involving its interpretation. The Application also invokes the jurisdiction of the Court under s 32 of the Federal Court of Australia Act 1976 (Cth). In any event, the jurisdiction conferred on the Court by s 39B of the Judiciary Act is sufficient to authorise the Court to determine all of the claims – federal and non-federal – which are involved in the controversy.
85 The applicants relied on Evans v New South Wales (2008) 168 FCR 576; [2008] FCAFC 130 (Evans). In Evans, the applicants similarly challenged regulations on the basis that they impermissibly burdened the implied freedom of political communication and the applicants invoked the Court's jurisdiction under s 39B(1A)(b). The claim for relief in the present case mirrored the claims for relief in that case.
86 On 29 February 2012, the High Court delivered judgment in Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 (Wotton). The respondents and the Attorney-General filed their written submissions on 19 March 2012. The hearing of this case commenced a few days later on 21 March 2012. The respondents and the Attorney-General then, for the first time, raised a challenge to jurisdiction based on the recent judgment in Wotton. In essence they submitted that the applicants' challenge was that the impugned Local Laws and Regulations were beyond the power of the enabling statutes and this claim did not arise under the Constitution or involve its interpretation, but rather, arose under the statutes. Consequently, so they argued, the case did not fall within s 39B(1A)(b) and the Court had no jurisdiction to hear and determine it.
87 In response, on the first day of the hearing, the applicants applied to file an amended application, the Fourth Further Amended Originating Application, which included claims for:
3A. A declaration that s 111 of the Local Government Act 1989 (Vic) is invalid to the extent that:
(a) cll 2.11 and 4.6 and cll 14.12 to 14.24 of the Local Law apply to the Protest and the Protesters; and
(b) the Local Law contains those clauses.
…
6A. A declaration that s 13 of the Crown Land (Reserves) Act 1978 (Vic) is invalid to the extent that:
(a) cll 18, 21 and/or 33 and 34(3) of the Regulations apply to the Protest and the Protesters; and
(b) the Regulations contains those clauses.
88 After referring to the receipt by the applicants of the respondents' written submissions challenging jurisdiction, Mr Merkel QC, who appeared with Mr E Nekvapil, Mr N Wood and Mr R Watters as counsel for the applicants, explained the purpose of the amendments thus:
…there was a simple answer and that was to make explicit which was implicit – merely to say that the head sections didn't authorise the laws – and to the extent they impermissibly burdened, they were beyond constitutional power of the state parliament.
89 The Council did not oppose that amendment, but argued that the amendment did not answer the challenge to jurisdiction. The Attorney-General, as an intervener, did not see it as his role to put a position on the application to amend, but also said that the amendment did not achieve the purpose. The Chief Commissioner did not oppose the amendments on the basis that they did not relate to any relief sought against him.
The submissions in chief of the applicants
90 In support of the contention that the Court has jurisdiction to hear and determine this proceeding, the applicants relied on Evans.
91 In that case, s 58(2) of the World Youth Day Act 2006 (NSW) (WYD Act) authorised the making of regulations for or with respect to "regulating the use by the public of, and the conduct of the public on, World Youth Day venues and facilities".
92 Clause 7(1)(b) of the World Youth Day Regulation 2008 (NSW) (WYD Regulation) provided that an authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that causes annoyance or inconvenience to participants in a World Youth Day event.
93 Section 46(3) of the WYD Act provided that a person must not sell or distribute a prescribed article during the sales control period in a World Youth Day Coordination Authority controlled area without the approval of the Authority. Clause 4 of the regulations prescribed various classes of articles for the purpose of s 46(3).
94 The applicants claimed relief including the following:
1. A declaration that subsection 46(3) of the World Youth Day Act 2006 (NSW) ("the Act") is invalid and of no effect as it impermissibly burdens the implied freedom of communication on matters of government or politics arising under the Commonwealth Constitution.
2. A declaration that clause 4 of the World Youth Day Regulation 2008 (NSW) as amended ("the Regulation") is invalid and of no effect as it:
(a) impermissibly burdens the implied freedom of communication on matters of government or politics arising under the Commonwealth Constitution; and/or
(b) is ultra vires the Act.
3. A declaration that clause 7 of the Regulation is invalid and of no effect as it:
(a) impermissibly burdens the implied freedom of communication on matters of government or politics arising under the Commonwealth Constitution; and/or
(b) is ultra vires the Act.
[Emphasis added]
95 The Court at [36] defined the issues for determination as follows:
1. Whether s 46(3) of the WYD Act, read with cl 4 of the Regulation, impermissibly burdens the implied freedom of political communication under the Constitution.
2. Whether cl 4 of the Regulation is within the scope of the power conferred by the WYD Act to prescribe items for the purposes of s 46(3).
3. Whether items of a kind that the applicants propose to distribute are within a valid prohibition effected by cl 4 of the Regulation.
4. Whether cl 7 of the Regulation impermissibly burdens the implied freedom of political communication.
5. Whether cl 7 of the Regulation is within the regulation making power conferred by s 58 of the WYD Act.
[Emphasis added]
96 The Court then explained the nature of the issues before it and the basis of its jurisdiction to hear and determine the proceeding as follows:
37. The applicants seek declarations of the invalidity of s 46(3) and cll 4 and 7 of the Regulation as infringing the implied freedom of political communication. In the alternative, they seek declarations that cll 4 and 7 of the Regulation are outside statutory power.
38 The first basis upon which the declarations are sought invokes the jurisdiction of the Court in matters arising under the Constitution and involving its interpretation. There is no contention that the jurisdiction of the Court is not properly invoked. The alternative challenge to the validity of cll 4 and 7 relies upon the contention that they fall outside the regulation making power conferred by the WYD Act. That challenge arises entirely under the law of New South Wales and ordinarily would not be within the jurisdiction of this Court. It is, however, clearly a part of the matter in which the constitutional challenge is brought and so falls within the "accrued jurisdiction" of the Court.
39 Although the constitutional challenge underpinned the primary relief sought in the application, the question whether s 46(3) or cll 4 and 7 in any respect infringe the implied freedom of political communication depends upon their proper construction and, in the case of the Regulation, whether they are valid under the WYD Act. If either of the clauses of the Regulation is not valid because it is not authorised by the WYD Act, then the question of constitutional validity falls away.
[Emphasis added]
97 The Court concluded that s 46(3) read together with cl 4 did not impermissibly burden the freedom of political communication in this case because none of the articles which the applicants wished to distribute were prescribed by cl 4. The Court said at [59] "[t]hat is sufficient to dispose of the constitutional challenge to s 46(3) within the framework of the case presented to the Court". In relation to cl 7(1)(b), insofar as it related to annoyance, the Court determined at [83] that:
"annoyance" may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive in the sense traditionally used in State criminal statutes. Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed.
98 In relation to inconvenience, the Court determined at [84] that it is:
a term which can reasonably be construed as limited to matters susceptible of objective judgment. The term does not reach so far as to impair expression of opinions with which people might disagree or which they might find troubling. In our opinion that aspect of cl 7(1)(b) does not spell invalidity.
99 The applicants submitted that the challenge to s 46(3) read together with cl 4 of the WYD Regulation and s 58 read together with cl 7 of the WYD Regulation was analogous to the challenge in the present case to s 111 of the Local Government Act read together with the impugned Local Laws and to s 13 of the Crown Land Reserves Act read together with the impugned Regulations. Just as the Court in Evans accepted that such a challenge was a matter arising under the Constitution or involving its interpretation within s 39B(1A)(b) of the Judiciary Act, so the present challenge falls within s 39B(1A)(b).
Submissions of the respondents and the Attorney-General
100 The Council was represented by Mr Niall SC, who appeared with Mr Attiwill. The Attorney-General was represented by Dr Donaghue SC, who appeared with Mr Pound and Ms Davidson. The Chief Commissioner and the State of Victoria were represented by Mr Holdenson QC, who appeared with Mr Gipp.
101 The arguments that the Court lacked jurisdiction came down to three points.
102 First it was contended that the applicants' challenge was directed to the impugned Local Laws and Regulations. The applicants' case was that these provisions impermissibly burdened the freedom of political communication and association. This meant that the applicants did not challenge the validity of the statutes under which the provisions were made. They did not contend that the enabling statutes impermissibly burdened the freedom of political communication or association. The case for the applicants was that the impugned provisions exceeded the legislative power under which they were purportedly made. The matter before the Court, therefore, did not arise under the Constitution. The applicants' argument arose solely under the statutes, and required a determination whether the challenged provisions were a valid exercise of the statutory power to make delegated legislation. Such a case was not within s 39B(1A)(b).
103 The next point arose out of the amended [3A] and [6A] of the Fourth Further Amended Originating Application. By the amendments the applicants directed an express challenge to the validity of the enabling statutes. Dr Donaghue, whose argument on this issue was adopted by the respondents, did not concede that the amendments amounted to a challenge to the validity of the enabling statutes, but contended that in any event any such direct challenge would not avail the applicants. This was because:
[I]f the power is susceptible to exercise consistently with the Constitution, that's how you read it, and a power that is expressed in very general terms, which as a matter of just plain language could authorise some things within power and some things without, is, as a matter of construction, read only as authorising the things within power.
104 Dr Donaghue frankly explained that these arguments "had not occurred for those acting for the Attorney-General before seeing the way that the High Court analysed the point in" Wotton. Before turning to that authority, mention should be made of the third point, although it is minor in the scheme of things.
105 That point was that the applicants, so it was said, had not claimed that the case fell within the second part of s 39B(1A)(b) as a matter involving the interpretation of the Constitution, and hence it was unnecessary for the respondents or the Attorney-General to respond to any such argument.
106 Wotton came before the High Court as a Special Case. Mr Wotton had been convicted of offences arising from a riot on Palm Island which responded to the death in police custody of an Aboriginal man, Mr Mulrunji Doomadgee. The circumstances of the riot were controversial and were a matter of wide public discussion. Mr Wotton was released on parole and wanted to speak publicly about the events. The Parole Board imposed conditions on his release on parole which prohibited him from attending public meetings on Palm Island without prior approval (condition t), and prohibited him from receiving any payment or benefit from the media (condition v).
107 Section 132(1)(a) of the Corrective Services Act 2006 (Qld) (the Corrective Services Act) made it an offence to "interview a prisoner or obtain a written or recorded statement from a prisoner". No offence was committed if the person had the approval of the chief executive (s 132(2)(d)). Mr Wotton unsuccessfully challenged this section as impermissibly burdening the freedom of political communication. The reasons for this conclusion will be examined later in this judgment. For now, the judgment is addressed for its relevance to the arguments on jurisdiction.
108 Section 200(2) of the Corrective Services Act provided that a parole order granted by a Parole Board may also contain conditions which the Parole Board reasonably considers necessary to ensure the prisoner's good conduct or stop the prisoner committing an offence.
109 Relevant particularly to the consideration of the validity of s 200(2), the majority comprising French CJ, Gummow, Hayne, Crennan and Bell JJ said at [9]:
It is important for the present case to note that s 9(1) of the Acts Interpretation Act 1954 (Qld) (the Interpretation Act) requires that the Corrective Services Act be interpreted to the full extent of, but not to exceed, the legislative power of the State legislature. The Corrective Services Act confers various discretionary powers which are expressed in broad terms. However, in accordance with general principles, these powers must be understood with regard to the subject matter, scope and purpose of the statute and must be exercised on application. Further, the discretionary powers must be exercised in accordance with any applicable law, including the Constitution itself.
110 Later their Honours said at [21] to [24]:
21 As remarked earlier in these reasons, with particular reference to what was said by Brennan J in Miller, while the exercise of legislative power may involve the conferral of authority upon an administrative body such as the Parole Board, the conferral by statute of a power or discretion upon such a body will be constrained by the constitutional restrictions upon the legislative power, with the result that in this particular respect the administrative body must not act ultra vires.
22 The Commonwealth submitted that: (i) where a putative burden on political communication has its source in statute, the issue presented is one of a limitation upon legislative power; (ii) whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law; (iii) rather, the question is whether the repository of the power has complied with the statutory limits; (iv) if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case, such as that in this litigation concerning the conditions attached to the Parole Order, does not raise a constitutional question, as distinct from a question of the exercise of statutory power. These submissions, which were supported by Victoria, should be accepted.
23 The Commonwealth further, and correctly, developed these points by emphasising in oral submissions that if the power or discretion be susceptible of exercise in accordance with the constitutional restriction upon legislative power, then the legislation conferring that power or discretion is effective in those terms. No question arises of severance or reading down of the legislation. There then would be no occasion presented for application of the principle explained as follows by Dixon J in Shrimpton v The Commonwealth:
"[F]inality, in the sense of complete freedom from legal control, is a quality which cannot, I think, be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force. An exercise of a power, whether legislative or administrative, cannot rise higher than its source, viz, the power itself, and an attempt under the power to make unexaminable what is done in ostensible pursuance of a further delegation of authority must, to that extent, fail."
24 Accordingly, this litigation turns upon the restraint imposed by the Constitution upon the legislative power of the Queensland legislature. It is no part of this dispute to canvass any question whether conditions (t) and (v) of the Parole Order should not have been included. That would be for agitation in other proceedings, in particular, proceedings under the Judicial Review Act.
[Emphasis added]
111 The Court held that s 200(2) was valid. The section did not impermissibly burden the freedom of political communication. The majority said at [32]:
Again, it would be incumbent upon the Parole Board to have regard to what was constitutionally permissible, and the reasoned decision of the Parole Board is judicially examinable under the Judicial Review Act.
112 And at [33]:
With respect to conditions (t) and (v) of the Parole Order, their validity then depends on whether, in implementing them, the Parole Board exceeded the authority conferred upon it by the valid statutory provision made by s 200(2). That would be a question for determination by the Supreme Court of Queensland on an application made under the Judicial Review Act.
113 In the result, in relation to s 200(2) the High Court stated the question and answered it as follows:
Questions 2 and 3 should be answered together.
Question 2: Is s 200(2) of the Corrective Services Act 2006 (Qld) invalid to the extent it authorises the imposition of conditions (t) and (v) of the plaintiff's Parole Order?
Question 3: If s 200(2) of the Corrective Services Act 2006 (Qld) is construed so that the power it confers must be exercised in conformity with the freedom of communication with the government and political matters provided for under the Commonwealth Constitution, are conditions (t) and (v) of the plaintiff's Parole Order invalid because they impermissibly burden that freedom?
Answer: Section 200(2), in its application to prisoners on parole, is not invalid for impermissibly burdening the freedom of communication about government and political matters and the question of the validity of conditions (t) and (v) of the plaintiff's Parole Order does not arise in this proceeding.
114 The respondents and the Attorney-General argued that Wotton applied to the circumstances of the present case. The general statutory powers to make the impugned Local Laws and Regulations were susceptible of exercise in accordance with the constitutional restriction on legislative power and hence the statutory provisions are valid. Whether the exercise of the power to make the impugned Local Laws and Regulations was valid depends on whether the regulations made fell within the statutory mandate. That is not a matter which arises under the Constitution or involves its interpretation and hence the Court does not have jurisdiction under s 39B(1A)(b).
115 The respondents and the Attorney-General then contended that Evans was not an analogous case to the present case. The challenge in Evans to s 46(3) was a challenge to a statutory power prohibiting a person from selling or distributing articles in a particular place and at a particular time. That prohibition was not, so it was argued, capable of being read down to comply with the constitutional limitation. In that regard s 46(3) contrasts with s 111 of the Local Government Act and s 13 of the Crown Land Reserves Act which are regulation making powers in general terms and capable of being read as subject to the constitutional limitation.
The submissions in reply of the applicants
116 In reply the applicants submitted that Wotton held that where a statute conferred power on an administrative body to make a decision, then a challenge to the exercise of that power, that is to say, a challenge to the making of the decision by the administrative body, is not a matter of constitutional law but rather a matter of judicial review.
117 The present case concerns statutes which confer powers to make regulations. Wotton was not concerned with a challenge to the exercise of the power to make delegated legislation. Nothing in Wotton suggests that the challenge to the making of the regulations on the grounds that they impermissibly burden the freedom of political communication is not a matter arising under the Constitution or involving its interpretation.
118 On the other hand, Evans was a case which challenged the making of delegated legislation. Both cll 4 and 7(1)(b) were challenged for impermissibly burdening the freedom of political communication. It was accepted in Evans that the Court had jurisdiction under s 39B(1A)(b) to determine whether they infringed the Constitution.
119 The applicants contended that the present challenge arose under the Constitution and involved its interpretation. Both limbs of s 39B(1A)(b) were engaged. The expression used in the section was a compound expression and it was not to the point that counsel in submissions in chief referred only to the first phrase in the expression. The notices served under s 78B of the Judiciary Act referred to the entire expression. Hence, the parties were alerted to the basis upon which the argument was to be put.
120 If the terms of cll 2.11 and 4.6 were included in statute so that the statute prohibited camping in tents in the gardens and bringing certain items into the gardens, and if the statute had been challenged as impermissibly burdening the implied freedom of political communication, there would have been no doubt that the matter would have arisen under the Constitution and would have involved its interpretation. Does it make any difference to the application of s 39B(1A)(b) of the Judiciary Act that the provisions appear in delegated legislation made under a general power to make regulations?
121 Where the regulation making power is in general terms, the underlying question which arises in a challenge to the regulation is the same question as arises when the provision is found in statute. In the present case that question is whether the provision impermissibly burdens the implied freedom of political communication. For a statutory provision in the same terms as the impugned provisions the question would be whether the statute impermissibly burdens the implied freedom of political communication. For the delegated legislation the question is whether a provision in the same terms impermissibly burdens the implied freedom of political communication. In such circumstances it would be artificial to see the controversy under the statutory provision as a matter arising under the Constitution or involving its interpretation but to see the controversy under the regulation as a matter arising under the statute alone.
122 Not only is the question about the meaning of the constitutional limitation the same question, but in both cases the question arises in the context of the adjudication of the limitation on legislative power. Both the making of the statute and the making of the delegated legislation are subject to the implied restriction on legislative power.
123 In Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31 (Levy) the High Court accepted that it had jurisdiction under s 30(a) of the Judiciary Act, which is in the same terms as s 39B(1A)(b), to determine whether subordinate legislation was invalid because it imposed an impermissible burden on the implied freedom of political communication.
124 In that case, the plaintiff was charged with three offences under regulations which restricted entry into an area designated for hunting game birds. Mr Levy went into such an area to protest against the practice. He challenged the regulations on the ground that they infringed the implied freedom of political communication.
125 Kirby J at 635 said that it was not disputed that:
The plaintiff did not challenge the validity of reg 5 as an exercise of the regulation making power except upon constitutional grounds.
126 On the question of jurisdiction, Toohey and Gummow JJ at 609 stated:
The original jurisdiction of this Court is attracted by s 30(a) of the Judiciary Act 1903 (Cth), the action being a matter arising under the Constitution or involving its interpretation.
127 The jurisdiction of this Court conferred by s 39B(1A)(b) of the Judiciary Act is equivalent to the jurisdiction conferred on the High Court by s 30(a) of the Judiciary Act.
128 In the critical [21] and [22] in Wotton relied upon by the respondents and the Attorney-General, their Honours in the joint judgment considered two contrasting circumstances in which the implied freedom of political communication might be raised. One circumstance was where the source of the burden was a statute, and the other was where the burden arose from an administrative decision made under a statute.
129 Their Honours held that where the burden has its source in a statute, the issue is one of a limitation on statutory power. That is a matter of constitutional law. Where the challenge is to an administrative decision the question is whether the body has complied with the statutory limits on its power to decide. That is not a matter of constitutional law.
130 The purpose of this discussion in the joint judgment was to isolate the issues before the Court and separate them from other issues concerning the decision of the Parole Board to place conditions on the parole orders which were not under consideration by the High Court. Thus, the distinction drawn was between matters of legislative competence which were before the Court, and matters of administrative law concerning the process by which the parole decision was made. These latter were issues outside the inquiry by the Court but which could arise in judicial review proceedings.
131 Although the Court was not addressing the terminology of s 39B(1A)(b) of the Judiciary Act, the reasoning can be applied to the operation of that section because, it seems, that the Court was exercising its jurisdiction under s 30(a) of the Judiciary Act which is in the same terms. By that reasoning, where it is alleged that a challenge to a statutory provision impermissibly burdens the freedom of political communication, a matter of constitutional law is raised. Then the matter falls within s 39B(1A)(b) because it arises under the Constitution or involves its interpretation. But, where a power is conferred by a statute on an administrative body, a challenge to a decision made by that administrative body does not raise a matter of constitutional law.
132 Wotton did not deal with the exercise of power to make delegated legislation. However, the respondents and the Attorney-General contended that the reasoning in Wotton applies equally to the exercise of power to make delegated legislation as it does to the exercise of power to make an administrative decision where that power is conferred by statute. In neither case is the challenge a matter that arises under the Constitution or involves its interpretation.
133 However, the reasoning in Wotton on this subject is confined to a consideration of the exercise of administrative power. That was the issue before the High Court. The implied freedom of political communication is a limitation on legislative power. It thus applies equally to the making of legislation and to the making of delegated legislation. That explains why the Court in Evans accepted that a challenge to ss 46(3) and 58 together with cll 4 and 7 of the WYD Regulation fell within s 39B(1A)(b) of the Judiciary Act.
134 The applicants' arguments that the Court has jurisdiction under s 39B(1A)(b) in respect of the challenge to the impugned Local Laws and Regulations as reflected in the relief sought in [3], [3A], [6] and [6A] of the Fourth Further Amended Originating Application should be accepted.
135 It was not contended by the respondents and the Attorney-General that, if the Court has jurisdiction under s 39(1A)(b) in respect of the constitutional challenges, it does not have jurisdiction over the other matters raised by the applicants.
representative capacity and standing
Introduction
136 The application was originally filed on 8 November 2011. At that time the first applicant was the only applicant. He sued in a representative capacity on behalf of the protesters. At that time only one notice to comply had been served. The application related only to that notice and to the validity of the impugned Local Laws under which it was given.
137 The written submissions of the Council filed on 19 March 2012, two days before the hearing commenced, argued that the application was not properly constituted as a representative proceeding.
138 On 21 March 2012, the first day of the hearing, leave was granted to join the second applicant as an applicant. Leave was also granted to amend the application in the form of the Fourth Further Amended Originating Application. In part, the amendments sought to address the arguments of the Council concerning the representative nature of the proceeding. The Council did not oppose the amendments but contended that they did not answer its objections and reserved the right to argue that the application was not properly constituted as a representative proceeding.
139 Rule 9.21(1) of the Federal Court Rules 2011 (Cth) (the Rules) provides the authority to sue in a representative capacity as follows:
(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.
[Emphasis added]
140 If the applicants and the represented persons "have a community of interest in the determination of some substantial issue of law or fact in the action, they have the same interest within the meaning of the rule": Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398; [1995] HCA 9 (Carnie) per McHugh J at 430.
141 The Fourth Further Amended Originating Application asserted the basis for the representative nature of the proceedings as follows:
REPRESENTATIVE ACTION
The First Applicant sues on his own behalf and in a representative capacity under r 9.21 of the Federal Court Rules 2011 (Cth) on behalf of the Protesters.
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.
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.
144 In order to determine whether the same interest existed between the parties sought to be represented it is necessary to examine the relief sought by the applicants in the Fourth Further Amended Originating Application.
145 The application principally sought declaratory and injunctive relief in relation to actions taken by the Council under the impugned Local Laws ([1] – [3] and [7] – [9]) and under the Regulations ([4A] – [6] and [10]).
146 It was alleged that the impugned Local Laws and Regulations and the enabling Acts under which they were made were invalid because they impermissibly burdened the implied freedom of political communication and were incompatible with the applicants' Charter rights.
147 It was further alleged that the impugned Local Laws and Regulations were ultra vires the enabling Acts under which they were purportedly made.
148 In relation to the Regulations it was alleged that they had expired at the time of the protest by operation of sunset provisions in the Crown Land Reserves Act.
149 In relation to cll 2.11 and 4.6 of the Local Law it was alleged that the Council officers acted beyond power because the wording of the notices to comply demonstrated that the notices had been issued in circumstances not covered by cl 2.11 or cl 4.6.
150 The applicants contended that the protesters as defined had the same interest in the resolution of the validity of the impugned Local Laws and Regulations and the enabling Acts under which they were made.
151 The second applicant submitted she had the same interest in the construction of cll 2.11 and 4.6 of the Local Law relied upon by the Council to take action against the protesters issued with the notices to comply. She also had the same interest in the construction of cl 21 of the Regulations as those who were subject to enforcement activities under the Regulations.
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.
Consideration
155 All of the protesters were entitled to challenge the enabling Acts and the Local Law and Regulations on constitutional and Charter grounds and to challenge whether the Regulations survived the sunset provisions.
156 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.
157 The first applicant was not served with a notice to comply, was not the subject of the enforcement actions and was not arrested. Many of the protesters were in the same position.
158 Council officers served 150 notices to comply on the protesters between 29 October 2011 and 4 December 2011. These notices to comply were listed in a schedule to the Fourth Further Amended Originating Application. The list showed that 114 notices to comply were in contention. The applicants accepted that if the impugned Local Laws were otherwise valid, the balance of 36 notices to comply were validly issued.
159 Of the 114 notices, 21 were addressed as a recipient described as "Unknown", and a further approximately 19 notices were addressed to people who obviously used false names such as "Batman", "Margaret Thatcher" and "J F Kennedy". Although no argument was addressed to the question, it may be doubted whether notices so addressed were valid notices.
160 The identity of the recipients of the remaining approximately 74 notices to comply is known. Nine notices to comply were issued to the second applicant and eight of them were in contention. The second applicant deposed in her 3 May 2012 affidavit that she had been in contact with 28 recipients of 64 notices to comply.
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.
164 The Council argued that the same interest must exist when the action was commenced on 8 November 2011. It was submitted that the first time a notice to comply was served on an individual was 12 November 2011. Consequently, so the Council argued, when the proceeding was started there was no community of interest in relation to the determination of the validity of the notices to comply.
165 The Council submitted that the circumstances of the present case were governed by Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386; [2006] HCA 41 (Fostif). Fostif was a litigation funder. It filed an action against a tobacco wholesaler for refunds of licence fees paid by retailers which fees had been found by the High Court in earlier proceedings to be an invalid excise. The action did not name any retailer as plaintiff but provided for an opt-in procedure. Gummow, Hayne and Crennan JJ in a joint judgment held that the representative proceeding rule had not been engaged. Their Honours distinguished the circumstances in Carnie and said at [58]:
At the time the summons was issued to commence the Fostif proceedings, there were no persons, other than Fostif, who had an interest in the proceedings which were instituted, as distinct from an interest in knowing which way the issues raised in those proceedings were decided. No other person had an interest in those proceedings because no order made or judgment given in the proceedings would bind that other person. No grant of declaratory relief was sought to resolve or determine any question common to the "numerous persons" alleged to have "the same interest in the proceedings". The summons is thus to be distinguished from the statement of claim in Carnie, where the plaintiffs claimed declarations for the common benefit of "the represented debtors". No doubt it was hoped that the procedures for "opting-in", which the summonses contemplated would be followed after the proceedings had been instituted, would lead to there being numerous persons with the same interest, but that was a hope or expectation about future events.
166 In Carnie, the plaintiffs borrowed money from Esanda. They contended that they were not bound to pay credit charges under the contracts of loan as a result of non-disclosure. They claimed to sue on behalf of all borrowers who had entered into contracts of loan with the same characteristics as their transaction. They sought declarations that no representative party was liable to pay the credit charges to Esanda. Toohey and Gaudron JJ said at 421 with Mason CJ, Deane and Dawson JJ agreeing:
There are many persons who have entered into variation agreements with the respondent. They have the "same interest" in testing those agreements against the Act to see if the method of calculating the amount owed was correct. If that method was not in accordance with the Act, then those persons have a common interest in obtaining the relief of being released from liability for the credit charges. That is, they have the same interest in these proceedings in the sense that there is a significant question common to all members of the class and they stand to be equally affected by the declaratory relief which the appellants seek.
167 In distinguishing Carnie, the joint judgment in Fostif stated at [59]:
It may readily be accepted that, when the proceedings in Carnie were issued, it may have been difficult to list all of the persons whom the plaintiffs represented. And some who met the relevant criteria may later have sought exclusion from representation. In that sense, one could not say at the time the proceedings in Carnie were issued who the plaintiffs represented. But it was clear that there were numerous persons who were represented. By contrast, in the Fostif proceedings, where it was sought to represent only those from within the class of represented retailers who actively chose to be bound, it could not be said that there was any person, let alone numerous persons, whom the plaintiff would represent.
168 When this proceeding was instituted on 8 November 2011 only one of the notices to comply which are in contention had been issued, and no action had yet been taken under the Regulations at Flagstaff Gardens.
169 On 21 March 2012, the Court granted leave to amend in the form of the Fourth Further Amended Originating Application. By that time the Council had issued the balance of the notices to comply arising from the protest at Treasury Gardens, and had taken action at Flagstaff Gardens under the Regulations. The relief based on the construction of the impugned Local Laws, and the validity of the impugned Regulations was claimed in that application. As in Carnie, at that time the application sought declarations on behalf of a large number of people interested in testing the validity and construction of the impugned Local Laws and the validity of the impugned Regulations to establish whether the conduct of the Council taken against them was lawful. In that respect, the circumstances are analogous to the circumstances in Carnie, rather than to the unusual circumstances in Fostif.
170 The remaining question is whether the time of the filing of the Fourth Further Amended Originating Application is the time when the proceeding was started for the purpose of r 9.21(1) of the Rules.
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.
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.
187 As explained earlier in these reasons for judgment, in its written submissions the Council challenged the standing of the first applicant. The applicants responded by seeking to commence the application as a representative proceeding. That application has been refused. Consequently, the question of standing arises for determination.
188 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.
189 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.
190 The Council correctly accepted that the applicants are entitled to challenge the validity of the impugned Local Laws and Regulations and the enabling Acts under which they were made.
191 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.
192 Section 5(1) of the Subordinate Legislation Act provides for the automatic revocation of certain types of delegated legislation as follows:
5 Automatic revocation of statutory rules
(1) … unless sooner revoked, a statutory rule is revoked by virtue of this section on the day which is the tenth anniversary of the making of the statutory rule.
[Emphasis added]
193 Statutory rule is defined in s 3 as:
(a) a regulation -
(i) made by the Governor in Council; or
(ii) made with the consent or approval of the Governor in Council; or
(iii) which the Governor in Council has power to disallow-
other than a regulation made by a local authority or by a person or body with jurisdiction limited to a district or locality;
[Emphasis added]
194 The applicants contended that the Regulations are a statutory rule within the meaning of s 3(a) of the Subordinate Legislation Act. Consequently, they argued, s 5(1) applies and the Regulations were automatically revoked on 24 October 2004, that date being 10 years after they were made on 25 October 1994. Hence, the Regulations were not in force when the Council sought to utilise them against the protesters.
195 The respondents and the Attorney-General argued that the Regulations fell within the exception to the definition of statutory rule. They contended that the Regulations were either made by a person or body with jurisdiction limited to a locality, or were made by a local authority. Consequently, the Regulations were not subject to the automatic revocation effected by s 5(1) of the Subordinate Legislation Act and remained in force at the time of the protest.
196 These contentions turned on the capacity in which the Minister for Conservation and Environment (the Minister) acted in making the Regulations. The power to make the Regulations is conferred by s 13(1) of the Crown Land Reserves Act as follows:
13 Regulations
(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; or
(b) where the land has not been granted to trustees, the Minister—
may make regulations for and with respect to—
(i) the proceedings of any committee of management;
(ii) the care protection and management of the land;
(iii) the preservation of good order and decency on the land;
(iv) the provision of services and facilities on the land and the conditions under which any services or facilities so provided shall be available to or be used by any person;
(v) the carrying out of works and improvements;
(vi) the safety of persons on the land or occupying or using any structure or building or any part of any structure or building on the land;
(vii) issuing permits and licences and entering into agreements in relation to the land;
(viii) the inspection and approval by a committee of management (if any) of plans and specifications for buildings structures or other works or extensions of buildings structures or other works required or permitted to be erected on such land;
(ix) the removal of any buildings structures or other works which do not comply with the requirements of the committee of management or in respect of which a permit, licence or agreement has expired or has been cancelled;
(x) the imposition collection and receipt of tolls fees rents or other charges for or in respect of—
entry upon such land (including any waters thereon) or any specified part thereof by any persons animals vehicles boats or aircraft; or
any improvement services or facilities thereon (including carparks); and
(xi) the fixing and collection of charges or royalties, whether in advance or otherwise, for the taking of any stone within the meaning of the Mineral Resources (Sustainable Development) Act 1990 from such land;
(xii) extending or applying all or any of the regulations made under this subsection in respect of any land referred to in paragraph (b) to any other such land where the body or persons comprising the committee of management of the first-mentioned land is or are also appointed to be the committee of management of such other land or where there is no committee of management for the land in respect of which the regulations were made or for the land to which they are to be extended or applied.
[Emphasis added]
197 It was common ground that at relevant times the Council and the Minister held Flagstaff Gardens by succession under a Crown Grant dated 13 June 1873.
198 The respondents and the Attorney-General submitted that s 13(1)(a) of the Crown Land Reserves Act which enabled the Minister and the Council to make the Regulations limited their power to do so to the land in question, and, in this case, to Flagstaff Gardens. Their jurisdiction to make the Regulations was limited to the locality for the purposes of s 3(a) of the Subordinate Legislation Act.
199 The applicants argued that s 13(1)(a) draws a distinction between the Minister acting as trustee and the Minister acting in his capacity as Minister. The basis for the distinction is the capacity in which each is acting. The Minister acts as Minister rather than as one of the trustees. The fact that he is also a trustee, so it was argued, is not relevant for the purpose of s 13(1)(a). In his capacity as Minister, his power is not limited to the locality. For instance, the Minister may acquire land for reservation either by agreement or compulsorily, and may exercise various powers such as the power to appoint committees of management over reserved land. Examples of bodies with limited territorial jurisdiction are local councils under the Local Government Act, authorities under the Water Act 1989 (Vic) and the Melbourne Market Authority under the Melbourne Market Authority Act 1977 (Vic). The powers, functions and objects of these bodies are tied to specific areas of land.
200 Further, the applicants contended that s 13(1)(a) gives regulation making power to the trustees on the one hand, and to the Minister and the trustees on the other hand. If the power was conferred on the Minister as trustee he would fall within the first part of the expression. There would be no need for the separate reference to the Minister in the second part of the expression. The reference to both the Minister and the trustees together would be redundant. Only if the reference to the Minister in that expression is read as a reference to the Minister acting as Minister rather than the Minister acting as a trustee is the expression "the Minister and the trustees" given any work to do.
201 Finally, the applicants submitted that s 32(1) of the Charter supports their construction. The regulation of conduct in the gardens may affect human rights such as freedom of movement (s 12); freedom of expression (s 15); taking part in public life (s 18); and the right to liberty and security (s 21). The Subordinate Legislation Act establishes a procedure to ensure that a proposed statutory rule does not limit any of the human rights set out in the Charter (s 12A). That scrutiny would not apply if the Regulations were not statutory rules. This aspect was particularly emphasised by Mr Merkel in oral submissions when he said:
[I]n the end your Honour, there's a very short answer to this whole dilemma. If you read our submissions, and you read our learned friend's submissions, you could come to the view that there are two views open on this.
There is undoubtedly at least some room for ambiguity. Nothing can be clearer than that the charter, section 32, between the two views, requires the court to prefer a view consistent with giving effect to human rights. The whole point of this new scrutiny regime, your Honour, is to make these regulations subject to scrutiny in respect of human rights.
Consideration
202 The terms of s 13(1)(a) of the Crown Land Reserves Act give the Minister power to make regulations with respect to a limited geographical area. The geographical extent of the power of the Minister is the only matter of concern for the operation of the exception to the definition of statutory rule in s 3(a) of the Subordinate Legislation Act. Whether the Minister has other powers is not a matter addressed by the exception. Thus, to ask whether the Minister, as Minister, has powers additional to the power granted by s 13(1)(a) is to raise a false issue. What is clear from s 13(1)(a) is that the Minister does have power under that section to make regulations limited to a geographical area. That is the end of the necessary inquiry for the purposes of the exception to the definition in the Subordinate Legislation Act.
203 The use of the two distinct expressions, namely, "trustees" and "the Minister and the trustees", in s 13(1)(a) of the Crown Land Reserves Act, and indeed elsewhere in that Act, does not assist the applicants. The express reference to the Minister in the one expression simply reflects the fact that he is one of the trustees. By spelling out that the Minister is included in the expression, any argument about whether the term "trustees" includes the Minister or not, is foreclosed. The same technique is used in the exception to the definition of statutory rule. There was no need to refer separately to a local authority because such authority would be a body with jurisdiction limited to a district or locality.
204 The drafting technique used in the exception to the definition of statutory rule is somewhat indirect. One can understand why the draftsperson used the expression "regulation made by a local authority". A regulation made by such a body will necessarily be limited to a local area. That part of the exception throws light on what was intended to be caught by the second limb of the exception, namely, a regulation limited in its operation to a local area made by a body other than a local authority. The draftsperson selected the scope of the power of the body as the criterion on which the exception was to operate. It would have been more direct to have selected the scope of the resulting regulation as the criterion on which the exception was to operate. Nonetheless, the sense of the exception read in context is to ensure that a regulation which operates only in local areas is not within the definition of regulation.
205 The applicants relied on the fact that the Subordinate Legislation Act provides an elaborate system for the scrutiny of statutory rules as a matter favouring the inclusion of the Regulations as a statutory rule. In fact, the nature of the statutory scrutiny system tells against this local provision falling within the definition of statutory rule.
206 The system of scrutiny of statutory rules is comprehensive and detailed. The Minister may make guidelines for the preparation of statutory rules which include a wide range of matters as set out in schedule 1 (s 26). Where the guidelines require consultation with other ministers or the public, the Minster must ensure that the consultation occurs and must issue a certificate of consultation to that effect (s 6).
207 A regulatory impact statement must be prepared (s 7). That statement must state the objects of the statutory rule, an assessment of the costs and benefits, and why other means of achieving the objects are not appropriate (s 10). The regulatory impact statement must be published in the Government Gazette and in a daily newspaper circulating generally in Victoria. The advertisement must invite public comment and submissions, and the Minister must ensure that these are considered (s 11). There is provision for an exemption certificate to be issued by either the Minister or the Premier relieving the need to provide a regulatory impact statement in defined circumstances. Reasons must be given for the exemption. Where a regulatory impact statement has been prepared the Minister must ensure that notice advising of a decision to make or not make the proposed statutory rule is published in the Government Gazette and in a daily newspaper circulating in Victoria (s 12).
208 The Minister must prepare a human rights certificate which certifies whether the proposed statutory rule does or does not limit any human rights set out in the Charter (s 12A). In specified circumstances the Minister is not obliged to prepare a human rights certificate, but must certify that the specified circumstances apply (s 12A(3)).
209 If the statutory rule is to be made by or with the consent or approval of the Governor in Council, it must be submitted to the Chief Parliamentary Counsel for the issue of a certificate specifying whether the proposed statutory rule complies with specified legal requirements such as whether it falls within the power conferred by the authorising act, and whether it is inconsistent with the principles of justice and fairness (s 13). The proposed statutory rule together with the necessary certificates are then placed before the Governor (s 14). It must be printed and published by the Government Printer and notice of the making of the statutory rule and where copies may be obtained must be given in the Government Gazette (s 17). The Government Printer must make every effort to ensure that the public can buy a copy of the statutory rule from a prescribed bookshop (s 20).
210 After notice of the making of the statutory rule is given, a copy must be laid before each House of Parliament (s 15), and a copy sent to the Scrutiny Committee (s 15A). The Scrutiny Committee may review the statutory rule on very wide grounds and may recommend that it may be disallowed or amended (s 21) and whether its operation should be suspended pending consideration by Parliament (s 22). Parliament may disallow the statutory rule (s 23).
211 These extensive requirements are directed to instruments which have significance throughout Victoria. Hence, the obligation to publish a notice in a newspaper circulating throughout the State. Contrary to the applicants' arguments, these requirements might be regarded as overly elaborate for instruments concerned only with local matters such as the management of a local garden. One purpose of the exception in the definition of statutory rule is to distinguish between those instruments which are of sufficiently wide application and importance to the population of Victoria generally, and those of local application where the elaborate process of scrutiny is unnecessary and would be burdensome. The fact that the Minister must be party to the making of the regulations provides a different form of scrutiny through the Minister's responsibility to answer to the public in Parliament.
212 The need for some limitation on the type of instruments subject to the scrutiny process can be seen from the 1993 report to Parliament of the inquiry into the operation of the Subordinate Legislation Act 1962 (Vic) which led to the introduction of the 1994 Act. Although the report is many years old, it stated that at the time:
The number of sets of regulations applying to Crown land reserves is estimated at well over 1,000 and approximately 50 additional sets are made each year.
213 Thus, the elaborate system of scrutiny provided by the Subordinate Legislation Act does not assist the applicants because the system is based on a distinction between local regulations which are not subject to that system and regulations with wider import which are subject to that system.
214 Finally, although not determinative of the proper construction of the exception, recent action by Parliament is confirmatory of the construction adopted in these reasons for judgment. In 2010, the Subordinate Legislation Act was amended to extend it to "legislative instruments". The definition of legislative instruments excluded statutory rules as defined in the Act. Regulations made under the Subordinate Legislation Act exempted regulations made under s 13 of the Crown Land Reserves Act from the rules concerning legislative instruments (reg 7, Sch 3 of the Subordinate Legislation (Legislative Instruments) Regulations 2011 (Vic)). This was unnecessary if the regulations were statutory rules and not legislative instruments.
215 In the result, the Regulations are within the exception to the definition of statutory rule in s 3(a) of the Subordinate Legislation Act. Consequently, s 5(1) of that Act did not operate to revoke the Regulations.
The construction of clause 2.11 and clause 4.6 of the local law
216 The second applicant challenged the validity of the notices to comply served on her on the ground that the Council officers who served the notices misconstrued the meaning of cl 2.11 and/or cl 4.6 of the Local Law pursuant to which the notices were issued.
217 It was common ground that if officers of the Council formed their suspicion of breaches of cl 2.11 or cl 4.6 on an erroneous view of the construction of these provisions then they had failed to exercise their jurisdiction and the notice was invalid. As Latham CJ said in R v Connell: Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430; [1944] HCA 42:
Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.
218 The Council served eight notices to comply which are in contention on the second applicant. Three of these notices to comply relied on cl 2.11, three relied on cl 4.6, and two relied on both cl 2.11 and cl 4.6.
219 The three notices to comply served on the second applicant which relied on cl 2.11 fell into two categories. In the first category was a single notice issued on 30 November 2011 which directed the second applicant to remove a light blue tarpaulin.
220 The second applicant contended that cl 2.11 prohibits conduct which has two main characteristics. The conduct must be camping, that is, living temporarily in a public place and it must be in a tent or a tent like structure. This notice did not refer to tents or that the tarpaulin was being used for camping. The second applicant submitted that the notice did not specify that it was issued for camping but rather it was issued for the existence of a tarpaulin in the gardens, which is not conduct prohibited by cl 2.11. It was implicit in this contention, and correct, that if the items referred to were in fact used for camping in tents the notices were validly issued.
221 The evidence established that there were regularly a number of tents erected at the protest sites. There were up to 15 tents at Treasury Gardens and otherwise around six tents. Some of the photos and the DVDs in evidence also showed large tarpaulins erected with poles. The evidence established that such structures were used for communal sleeping and accommodated up to 15 people. The second applicant also described a marquee set up as a kitchen. Indeed, the applicants did not dispute the validity of notices to comply which only required the removal of tents. The whole point of the protest was to occupy, that is to say, to establish a continuing presence in the gardens. It is thus clear, and not disputed, that the protest involved camping in tents within the meaning of cl 2.11.
222 Although there was no specific evidence about the circumstances in which the single notice was issued on 30 November 2011 to the second applicant, there was evidence which bears upon the way the description in the notice should be viewed. Mr Schwarz was responsible for the management of the enforcement process by the Council. He had access to and utilised internal legal advisers in the course of the protests. There were 15 officers and three managers operating under him. Directions were given to staff concerning the conduct which fell within the impugned Local Laws.
223 Mr Schwarz gave answers in cross-examination which disclosed his understanding of the meaning of cl 2.11. He said that camping under cl 2.11 involved sleeping or sleeping and eating in a tent or tent like accommodation. He further understood that using a tent but not for camping was not prohibited by cl 2.11. Camping under a tarpaulin resting on top of sleeping protesters was not camping in a tent. But if the tarpaulin was raised on poles and the poles were braced and secured by pegs in the ground, the protesters sleeping under such a structure were camping within the meaning of cl 2.11. Mr Schwarz himself issued a significant number of the notices.
224 The question then is whether the notice to comply requiring the removal of the light blue tarpaulin which might be used for camping in tents was a valid notice even though it did not refer to camping in a tent or other structure.
225 The evidence established that there was camping in tents and under tarpaulins raised on poles above the ground. The item referred to in the notice was an item which might be used for camping. Mr Schwarz knew that cl 2.11 was only engaged if the tents or tent like structures were used for camping. The Council officer who issued the notice was given directions about the requirements of cl 2.11. From these facts I infer that the notice purporting to have been issued under cl 2.11 which did not direct the removal of a tent for camping, but only items which might be used for camping in tents or other structures was issued in respect of camping in tents or other structures, and was validly issued under cl 2.11.
226 The notices to comply in the second category of cl 2.11 notices did direct the removal of a tent, but also directed the removal of associated items. In this second category was a notice issued to the second applicant on 1 December 2011, and another on 2 December 2011. Both directed the second applicant to remove a blue dome tent and associated items.
227 The applicants contended that the notices in this category described the items so vaguely that it was not possible for the recipients to know what was to be removed. They also argued, as it was put by Mr Wood:
[N]one of those notices is conduct identified in the notice. Each notice is in the form that a person is directed to stop the conduct which constitutes a breach of the local law. No conduct is explained. They then said that they can stop that conduct by removing certain items. None of those items, on any view, could conceivably be covered by 2.11, because they aren't tents, your Honour, and a table can't be used for accommodation.
228 Clause 2.11 prohibits camping in various forms of accommodation. But it is not limited to prohibiting the forms of accommodation. The clause is directed to the conduct of camping. It was open to Council officers to direct the protesters who were using tents for camping to remove not only the tents, but also to remove those items which constituted the activity of camping. Where items were contained within a tent there was an obvious connection between the use of the tent for camping and the use of those items. On this basis Council officers could direct the removal of the contents of tents used for camping such as mattresses, pillows, and sleeping bags. Items found outside the tents which were used for camping in the tents also could be the subject of a notice to comply for the same reason. It is unlikely that the protesters were puzzled by the description of such items in the notices. The notices set out the terms of cl 2.11. It was clear that the items referred to were targeted because they were used in the conduct of camping. Again, these two notices were valid in this regard.
229 One of the three notices issued under cl 4.6 was issued on 18 November 2011, and the remaining two notices were issued on 28 November 2011. They required the second applicant respectively to remove a blue tarpaulin and all items underneath and a green tarpaulin and all boxes with food and other kitchen things, a blue tent with silver sides, and a grey four person tent.
230 Clause 4.6 is in Part 4 of the Local Law. It may be recalled that cl 4.6 provided that:
4.6 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.
231 Part 4 is entitled "Advertising and use of Shopfronts and Public Places". Its purpose is described as follows:
Introduction: 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.
[Emphasis added]
232 The applicants contended that "other thing" in cl 4.6 should be construed ejusdem generis as limited to other items in the same category as portable advertising signs. Those signs are defined in terms that have a commercial flavour.
233 However, this approach is not supported by the text of cl 4.6 and the definition of advertising sign. It may be recalled that "advertising sign" is defined in cl 1.1 to include any symbol, device 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.
234 It is not necessary for there to be a commercial purpose for a thing to come within the definition of advertising sign. For instance, a sign which indicates the venue of a wedding in the gardens to guide guests to the celebration falls within the definition of advertising sign even though the sign serves no commercial purpose for the wedding guests.
235 The Council in its written submissions accepted that the expression "other thing" was not open ended. Those submissions argued:
106. Part 4 is entitled "Advertising and Use of Shop Fronts and Public Places" and its purpose is identified in the introductory words which include to "enhance the appearance of streets and public places" by controlling the placement of advertising signs and street art in or within view from a public place and the placement of "goods" and the like in public places.
107. It is clear that Part 4 is directed to amenity and appearance and is not limited to a restriction on advertising. Rather, advertising signs should be seen as an identified example of goods and other things that are likely to threaten the appearance of streets and public places. The specific reference to advertising signs, and the control of the appropriation of public places for advertising purposes, is but an example of the activities that Part 4 seeks to regulate.
108. The requirement in cl 4.6 relating to the placement or erection of advertising sign or "other thing" in or over a public place are directed to the placement of goods that may impinge upon the appearance of streets and public places. Although broadly expressed, their width is plainly intentional so to enable the regulation of any goods whose placement or erection within a public place is likely to affect appearance.
[Emphasis added]
236 There is force in this interpretation of cl 4.6 and it should be accepted.
237 In oral submissions, Mr Niall suggested that the notice to comply which directed the second applicant to remove a tent and associated items may be justified by the prohibition on placing advertising signs in a public place. In the circumstances, the tent and associated items at the protest site fell within the description of a device or message used for notifying the promotion of an organisation, namely Occupy Melbourne, or used for notifying the promotion of a thing, namely, the philosophy of Occupy Melbourne. This contention gained support from evidence in the affidavit of the first applicant affirmed on 12 December 2011 who explained the purpose of the occupation thus:
8. The primary mode of protest of the Occupy Melbourne movement – which I believe to be common to all Occupy movements worldwide – is for protesters to maintain a continuous presence in a public space. By maintaining a continuous presence in a public space, the protesters are able to continuously convey our protest to the public. However, the continuous presence of protesters in a public space is itself an integral part of the political message the protesters are seeking to convey to the public. The occupation of public space allows Occupy Melbourne to enact and demonstrate the alternative political and governmental structures that it seeks to promote for Australia. For instance, the occupation allows members of the public who witness the protest to see protesters engaging in direct, participatory democracy, and distributing food and other resources in an egalitarian manner. Also, by continuously occupying public space, the Occupy Melbourne movement shows that it stands in solidarity with marginalised members of the community, including homeless persons and Indigenous peoples.
[Emphasis added]
This was not, however, the basis on which Council officers formed their suspicion that there had been a breach of cl 4.6.
238 Mr Schwarz gave answers in cross-examination that "other thing" in cl 4.6 referred to any other thing whatsoever. For example, in the cross-examination of Mr Schwarz the following exchanges occurred:
And if the child that I told you about that had the birthday party with a tent for her friends in the park erected that tent and had the birthday party, would, in your view, that fall within 4.6?---It would depend how it was erected and for how long.
Which word in 4.6 would capture that tent on your test – and we will go back to how it was erected and how long in a minute?---The way I understand 4.6 is that "other thing" can refer to any other thing, so it would be caught there.
…
Yes. Well, on your interpretation, "other thing" includes anything in, on, or over the path?---Yes.
And that's how the local law was administered under your direction at Treasury Gardens?---Yes.
And at Flagstaff, to the extent that local law was used?---Yes.
Thank you. Now, you haven't said anywhere in the evidence I've given to date about whether the thing was unsightly or unseemly. Would that come into your mind as well?---No
…
It wouldn't. Because I just want to read you a paragraph of the council's submissions. It's paragraph 108, your Honour. You understand that Melbourne Council has put submissions before the court? ---Yes.
And, in fairness, I should show you a copy. Can you just read paragraph 108. Have you read 108? ---
The requirements in clause 4.6 relating to the placement or erection of advertising sign or other thing in or over a public place are directed to be to the placement of goods that may impinge upon the appearance of streets and public places, although broadly expressed, their width is plainly intentional so to enable the regulation of any goods whose placement or erection within a public place is likely to affect appearance.
Yes. Now, I asked you about the fact as it operated in your mind. I take it that was not one of them? --- No.
[Emphasis added]
239 He later explained that Council officers would consider whether the thing was causing damage to the gardens or was part of a normal use of the gardens. A fair reading of his evidence is that these considerations would influence whether the Council would take action, but did not govern whether the Council was entitled to do so. This is confirmed by a document entitled "Local Laws Officers Procedure for Protestors 2011" which provided guidance to Council officers as follows:
A breach of the Activities Local Law 2009 occurs by:
• starting to place or erect a tent or other item that, in an authorised officer's opinion, could be used as a temporary or provisional form of accommodation; or
• placing other fixed objects such as a generator, heavy objects, 'A' boards or other things which the authorised officer considers unreasonable.
1. I am an authorised officer of the Melbourne City Council and produce my identification card to this effect. (Hold up)
Under the Council's Activities Local Law 2009 you are not permitted to either camp in a public place or place objects or things in or over a public place without the Council's permission.
[Emphasis added]
240 Thus, on Mr Schwarz's view, which I find was transmitted to and acted upon by Council officers, cl 4.6 was applicable in relation to any thing placed in Treasury and Flagstaff Gardens and Gordon Reserve.
241 Even on the Council's submissions made in this proceeding, that approach to the construction of cl 4.6 was erroneous. The Council's submissions correctly accepted that the reference to "other thing" in cl 4.6 was limited, whilst Council officers who served the notices regarded the expression as unlimited. The suspicion of the Council officers that the second applicant was in breach of cl 4.6 was thus based on a mistaken view of the meaning of the provision. The suspicion was not therefore reasonably based as cl 14.13 requires.
The clause 2.11 and clause 4.6 notices
242 One notice to comply which relied on both cll 2.11 and 4.6 was issued to the second applicant on 29 November 2011 and directed her to remove a blue marquee and associated items. The other such notice to comply was issued to the second applicant on 4 December 2011 and directed her to remove a personal tent and all contents therein.
243 Both notices to comply were validly issued under cl 2.11 for the reasons explained in [0] – [228] of these reasons for judgment. The reliance on cl 4.6 was superfluous.
244 The second applicant is entitled to a declaration that the three notices to comply issued to her, one on 18 November 2011 and two on 28 November 2011, were invalid. It should be assumed that the Council as a public body will act in accordance with these reasons for judgment. Consequently, it is unnecessary for the Court to grant any injunctive relief in relation to these three notices.
the constitutional implied freedom of political communication
Introduction
245 The primary attack by the applicants was on the validity of the impugned Local Laws and Regulations. The applicants contended that these provisions were invalid because they infringed the implied freedom of political communication.
246 Whether a provision does so depends on the answers to two questions. The first question asks whether, in its terms operation or effect, the law effectively burdens freedom of communication about government or political matters. If this is answered affirmatively, the second question asks whether the law is nevertheless 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 of the Constitution to the informed decision of the people: Attorney-General (SA) v Corporation of the City of Adelaide (2013) ALR 197; [2013] HCA 3 at [67] (Adelaide Corporation), Wotton at [25].
The submissions of the applicants
247 The applicants submitted that the message which the protesters sought to convey was a political message. It directly concerned how Australia is governed and claimed that the structures of government are overly influenced by large corporations and political parties. The message was that the system effectively disenfranchises 99 per cent of the population.
248 Then, the applicants contended that the way in which the message was conveyed was part of the message itself. The Occupy Movement conducted a democratic system in public places to demonstrate direct participatory democracy. Food and other resources were distributed in an equalitarian manner to show that the movement stands in solidarity with marginalised members of the community including homeless and Indigenous people. In order to maintain a continuing presence in public places the protesters needed shelter, food, and first aid facilities. The actions of the Council which denied the protesters these facilities eventually stopped the protest.
249 The applicants also relied on City of Vancouver v Zhang (2010) 325 DLR (4th) 313; (2010) BCCA 450 (Zhang). The British Columbia Court of Appeal held that a by-law of the City of Vancouver which prohibited the construction of a structure which obstructed a street or which may encroach on a street without the permission of the city engineer was unconstitutional. The City sought to rely on the by-law to remove a one by two metre meditation hut which had been erected by the Falun Gong outside the Chinese Consulate to protest against human rights abuses in China. The hut was used for a continuous 24 hour, seven day vigil. Section 2(b) of the Canadian Charter of Rights and Freedoms (Canadian Charter) provided for freedom of expression. The Court held that the hut was "part and parcel of the manner" in which the Falun Gong members chose to express themselves. At [48] the Court said:
The By-law places a prohibition on structures on city streets. No by-law or policy exists to grant exceptions for a political structure and neither Council nor the City Engineer considered granting one in the instant case. The By-law thus forms a prohibition against the practitioners' chosen form of expression, so the By-law must infringe s. 2(b).
250 Then, the applicants contended that the practical operation and effect of the impugned Local Laws and Regulations was an effective burden on political communication because the Council utilised the provisions in a way which ended the protest. This was the purpose of the Council and the result of its actions. The Council had a no tolerance approach to breaches of the impugned Local Laws and Regulations. Mr Schwarz acted in accordance with this policy and instructed his officers to do likewise. He aimed to stop camping in the gardens and he gave no attention to the implied freedom of political communication.
251 The applicants contended that the provisions were not reasonably appropriate and adapted to serve a legitimate end. Whilst protection of the gardens from damage might be regarded as a legitimate end, it was not necessary to prohibit camping in tents or bringing specified things into the gardens in order to achieve that end. The facts demonstrated that no damage was done to the gardens by the actions of the protesters. The protesters cooperated with the Council to ensure that the gardens were not damaged.
252 Both the impugned Local Laws and the Regulations provided for people to apply for a permit to camp in the gardens or to act in the ways covered by the provisions. The applicants submitted that by providing for people to apply for permission to do the acts otherwise prohibited did not save the provisions from invalidity. The ability to apply for permission did not render the impugned Local Laws and Regulations reasonably appropriate or adapted to serve the legitimate end of protecting the gardens in a manner consistent with the maintenance of the constitutionally prescribed system of government.
253 At the hearing the applicants relied on the judgment of the Full Court of the Supreme Court of South Australia in Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334; [2011] SASCFC 84 (Corneloup). In that case Council by-laws prohibited preaching, canvassing, haranguing or distributing printed material on roads without a permit. The by-laws were held to infringe the implied freedom of political communication. Kourakis J as his Honour then was said at [157] with Doyle CJ and White J agreeing:
However, in my view, the liberty to preach to fellow citizens in public places on political matters, as and when they arise, without seeking permission from an arm of government is fundamental to the maintenance of the constitutional system of responsible and democratic government.
254 And at [158] his Honour said:
The delay inherent in the requirement to obtain permission would in itself necessarily stifle political debate on contemporary issues. … Requiring applicants, who have wrongly been denied permission, to take proceedings for judicial review would strangle political speech almost as effectively as an absolute prohibition.
255 And at [159] his Honour said:
Members of a democratic society do not need advance permission to speak on political matters. The prohibition of disseminating a political message, unless permission of an arm of government is first obtained, is antithetical to the democratic principle.
256 This reasoning was an important foundation of the applicants' case at the hearing. The last day of that hearing was on 4 May 2012. On 11 May 2012, the High Court granted special leave to appeal to the Attorney-General for South Australia in Corneloup. In view of the significance of this authority in the arguments in the present case, the parties agreed that judgment in the present case should not be delivered until the appeal in Corneloup was heard and determined by the High Court. The High Court delivered judgment in that appeal on 27 February 2013. The parties then filed written submissions concerning the relevance of the High Court's judgment for the present proceeding.
257 In Adelaide Corporation the High Court allowed the appeal. The plurality, French CJ, Hayne, Crennan, Kiefel and Bell JJ, held that the by-laws did not infringe the implied freedom of political communication. The opportunity given in the law to apply for permission was a factor which supported the validity of the law. Crennan and Kiefel JJ said at [213], with Bell J agreeing:
The discretion on the part of the Council to refuse permission, or to subject a grant to conditions, is wide, as the third respondent points out. It is not, however, at large and is circumscribed by the purposes of the By-law. In addition to any internal review by the Council itself, the Council's decision is subject to judicial review by the Supreme Court of South Australia, although the costs of and potential delay in such procedures may act as a deterrent for some.
258 However, in their supplementary submissions, the applicants contended that there were circumstances relied on by the Court in Adelaide Corporation favouring validity of the law which did not exist in the present case. One of the prohibitions did not apply to conduct undertaken with the authority of a candidate during the course of a federal, state or local government election, or for the purpose of a referendum. Another of the impugned by-laws did not apply to an area designated as "Speakers Corner". Further, the by-laws only applied to roads and not to other public places.
259 Wotton was another recent case in which the High Court held that a burden on political communication did not infringe the implied freedom of political communication in part because it was open to seek permission to do the act otherwise prohibited. Again the applicants sought to distinguish the circumstances of that case from the circumstances of the present case.
260 Section 132(1)(a) of the Corrective Services Act made it an offence to interview a prisoner including a person released on parole. Section 132(2)(d) provided that no offence was committed if the written approval of the chief executive was obtained. In their joint reasons, French CJ, Gummow, Hayne, Crennan and Bell JJ held that the permission regime saved the provision from invalidity and said at [31]:
With respect to s 132(1)(a), as qualified by the discretion conferred by s 132(2)(d), the legitimate end, for the second Lange question, is sufficiently identified by the statutory purposes set out in s 3(1). This expresses the need to consider community safety and crime prevention through humane containment, supervision and rehabilitation of offenders. Further, it would be incumbent upon the chief executive in exercising the power of approval under s 132(2)(d) to have regard to the restraint upon legislative power in the sense explained by Brennan J in Miller, and the reasoned decision of the chief executive is judicially examinable under the system established by the Judicial Review Act. However, no application for approval by the chief executive has been made by or with respect to the plaintiff. Rather, the plaintiff has sought to isolate s 132(1)(a), without regard to the power of approval which governs its operation and which is an element of the burden imposed upon political communication.
261 The applicants contended that the reasoning in Wotton depended on the existence of a right to challenge the decision of the chief executive. The challenge would be informed by reasons which the chief executive was bound to provide. The applicants argued that in this case, whilst the decision of the Council to refuse a permit could be challenged, the Council had no obligation to provide reasons for its refusal. Consequently, the right to challenge the decision of the Council to refuse a permit lacked substance, and the present case was distinguishable from Wotton.
262 Under s 8 of the Administrative Law Act 1978 (Vic) (the Administrative Law Act) the obligation to provide reasons applies to a "tribunal". The "tribunal" is relevantly defined as a body required to observe one or more of the rules of natural justice (s 2). The applicants contended that the Council was not required to observe the rules of natural justice when considering an application for a permit.
263 In Simjase Pty Ltd v City of Melbourne [1990] VR 350 (Simjase) McGarvie J held that the Council was not a tribunal for the purposes of the Administrative Law Act in the circumstances of that case. The plaintiff wished to operate a flea market on the wholesale fruit and vegetable market site and required an exemption from restricted trading hours to do so. The Minister for Industry, Technology and Resources could grant the exemption on application by the Council. The plaintiff asked the Council to make the application but the Council determined not to do so. McGarvie J determined at 353 that the Council was not bound to observe the rules of natural justice because:
…the only interest of Simjase was an interest in obtaining a privilege which it did not then enjoy, rather than an interest in retaining or renewing a privilege which it already enjoyed.
264 This reasoning should be preferred, so it was argued, to the reasoning of Balmford J in No 2 Pitt Street Pty Ltd v Wodonga Rural City Council [1999] 3 VR 439 (No 2 Pitt Street) at [46] – [48] which held that the Wodonga Rural City Council was a tribunal for the purposes of that case. This case is dealt with later in these reasons for judgment at [301]. See also CECA Institute Pty Ltd v Australian Council for Private Education & Training (2010) 30 VR 555; [2010] VSC 552 at [117] – [127].
265 The judgment in Simjase, the applicants argued, reflected the distinction between the expectation cases where a permit is sought to be renewed, or there is some other basis for an expectation that the person will be granted a permit, and the application cases, where a person applies for a permit for the first time: FAI Insurances Limited v Winneke (1982) 151 CLR 342 (FAI) at 376 – 9.
266 In Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 (Haoucher) at 681 – 2 McHugh J explained that:
A legitimate expectation that a person will obtain or continue to enjoy a benefit or privilege must be distinguished, however, from a mere hope that he or she will obtain or continue to enjoy a benefit or privilege. A hope that a statutory power will be exercised so as to confer a benefit or privilege does not give rise to a legitimate expectation sufficient to attract the rules of natural justice.
267 The applicants contended that the applicants for a permit to camp in tents or display advertising signs under the impugned Local Laws or Regulations have a mere hope of obtaining a permit but not a legitimate expectation such that the Council was bound to observe any of the rules of natural justice. This is an important basis, so it was submitted, for distinguishing Wotton.
268 Then, the applicants contended that there were less drastic means available to achieve the purpose of the impugned Local Laws and Regulations without imposing an impermissible burden on the implied freedom of political communication. The applicants contended that the proper approach to the answer to the second question in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange), was described in Wotton by Kiefel J at [89] as follows:
In the measures s 132 adopts, the section goes no further than is reasonably necessary in seeking to achieve the relevant objectives of the Corrective Services Act and is proportionate. A test of this kind has been applied in decisions of this Court. It is evident in what was held in Australian Capital Television, to which McHugh J referred in the passage from Coleman v Power set out above. It could not be said that the means employed by a statute were reasonably necessary if there were other, less drastic, means available by which the legislative objective could be achieved.
[Emphasis added]
269 The applicants suggested a number of less drastic means available to meet the legislative objectives of the provisions without placing an impermissible burden on the freedom of political communication.
270 For instance, cl 5.4 of the Local Law prohibits displaying or distributing a handbill in a public place. Handbill is defined to exclude any handbill containing material of an exclusively political nature. Another example is to be found in s 6 of the Summary Offences Act 1966 (Vic) which authorises members of the police force to direct people to move on from a public place. There is a specific exemption in s 6(5) for people demonstrating or protesting about a particular issue, or speaking, bearing or otherwise identifying with a banner, placard or sign or otherwise behaving in a way that is apparently intended to publicise the person's view about a particular issue. Another way to avoid infringing the freedom of political communication, if the concern of the Council was about damage to the gardens, was to provide that the impugned Local Laws and Regulations govern conduct only where there was a danger of such harm being caused. Alternatively, the Council should have had a specific process for dealing with permits for political protests.
271 This issue was addressed in Monis v The Queen (2013) 295 ALR 259; [2013] HCA 4 (Monis) in which judgment was handed down by the High Court at the same time as the judgment in Adelaide Corporation. The High Court divided equally on the question of the validity of s 471.12 of the Criminal Code 1995 (Cth) which made it an offence to use the postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. Crennan, Kiefel, and Bell JJ considered that the section applied only to higher levels of offensiveness. The section, if so read, served a legitimate end and was proportionate to that end. Consequently, the section was valid. In addressing the second Lange question their Honours said at [347]:
The second limb of Lange looks, in the first place, to whether the law is proportionate to the end it seeks to serve. In Lange, it will be recalled, once the common law of defamation was adapted it was regarded as going no further than was necessary having regard to the legitimate purpose of protection of reputation. Where 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, as was the Tasmanian legislation in Betfair. In such circumstances the means could not be said to be reasonably necessary to achieve the end and are therefore not proportionate.
[Emphasis added]
In their supplementary submissions the applicants contended that the alternatives which they suggested were obvious and compelling in accordance with this requirement of the test.
272 In Adelaide Corporation, Crennan and Kiefel JJ, with Bell J, agreeing incorporated and repeated this reasoning. In the circumstances of Adelaide Corporation, their Honours held at [218] that:
It could not be seen as equally practicable to allow persons to conduct political speeches and distribute political material without restriction and yet secure the safe and convenient use of roads.
273 The same approach had been adopted in Canada in Zhang where the question was whether the by-law was justified under s 1 of the Canadian Charter which guaranteed rights and freedoms:
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
274 The Court concluded at [69]:
Despite this fundamental constitutionally-protected right to expression, the By-law maintains a general prohibition subject to Council's unfettered discretion to mete out individual exemptions. The City says that "[w]ithout this general prohibition the entire regulatory scheme would fail as it is impossible for the City to foresee and legislate in relation to every possible obstruction or encroachment". This may be, but no evidence or argument was put forward as to why the City could not develop a policy allowing for the administrative regulation of political expression comparable to those in place for commercial and artistic expression. Had the Council instituted what might be called a "Political Structure Policy," as it did policies for commercial and artistic expression, as part of its regulatory scheme, my conclusion might well be different. But they chose to maintain a complete ban and, effectively, to rely on prosecutorial discretion and Council's power to direct the use of that discretion, to ensure the right to freedom of political expression was not infringed in an individual case. In so doing, I am persuaded, they rendered s. 71 unconstitutional and of no force or effect. They reached beyond that which is permitted to them when political speech is the right sought to be exercised. It cannot be said that there is not a more reasonably tailored regulatory scheme.
[Emphasis added]
The challenge to cl 14.13 of the Local Law
275 As the case proceeded, the applicants' arguments became increasingly defined. In the end the focus was squarely, if not exclusively, on the validity of the notice to comply procedure of enforcement particularly that provided by cl 14.13. Mr Merkel said that "but for the notice to comply procedures in [14.13], if this were only about cl 4.6 and cl 2.11, we would have never had to come here, because we would have had a contest over an infringement". Something, therefore, should be said about the particular arguments addressed to the validity of cl 14.13.
276 Clause 14.13 allows an authorised officer to serve a notice to comply on a person whom the officer reasonably suspects to be in breach of the Local Law. The notice may direct a person to stop the conduct which constitutes a breach of the Local Law by a certain time, and to remove any item that constitutes a breach of the Local Law (cll 14.15 and 14.16). A person served with a notice to comply must comply with directions given in the notice (cl 14.18). Failure to comply with the notice is an offence (cl 14.1(c)). Where a person responsible for an item ignores a direction to remove it, the item may be confiscated and impounded (cl 14.21).
277 The applicants' submissions concerning cl 14.13 addressed the extent of the burden on political communication imposed by the provision, and the absence of any reasonable justification for such an extreme operation of the enforcement mechanism.
278 In their written submissions, the applicants described the operation of the enforcement process as follows:
It confers on the Council the power to peremptorily bring about the immediate cessation by a person of conduct suspected of being in breach of the Local Law – including conduct that is part of or necessarily incidental to a political protest – and thereby avoid or render futile any subsequent judicial scrutiny of the lawfulness of that conduct. It is also a process which … does not involve the Council in bringing the issue of the validity of the Council's conduct, whether directly or indirectly, before a court. This aspect enables the Council to effectively avoid judicial scrutiny of its actions.
279 In oral submissions, Mr Merkel described the burden imposed on political communication by cl 14.13 as a "unique burden", and explained:
[T]he rule of law, rather than the rule of man, is one of the most fundamental principles of our society, and it is violated, in the most fundamental way, in clause 14. I've never seen – I'm sure it exists – but I have never seen, and I can't think of any parallel where, actually, a person can write out in a document the law, and it's an offence to not comply with what that person's statement of the law is, and that's the way the law operates.
Because that's what clause 14 does, and it has caused mayhem out there in the protest. You've seen a trace of the videos before you about how this protest was broken up, but it was broken up not because of clause 2.11 or clause 4.6 by reference to proceedings in a court or charges brought. It was brought by reference to clause 14, because that meant charges needn't be brought; were not brought, and were not tested. And in any practical sense can never be tested, because the minute we brought these matters before the court, the argument was put by the council those notices have now expired, and there's nothing left for the court to do in respect of them, and no injunctions were sought.
280 Then, further in oral submissions, Mr Merkel observed that s 224(8) of the Local Government Act and s 458(1) of the Crimes Act 1958 (Vic) (Crimes Act) could operate as part of the enforcement mechanism. Section 224(8) of the Local Government Act makes it an offence to obstruct or hinder an authorised officer whilst performing his or her duty. Section 458(1) of the Crimes Act allows a police officer to apprehend a person committing an offence where the officer believes on reasonable grounds that it is necessary to apprehend the person to preserve public order, to prevent the continuation or repetition of the offence, or for the safety or welfare of the public or the offender.
281 The applicants argued that the reasonable satisfaction standard in cl 14.13 is a low threshold. It requires less than a belief, and need not be well founded or factually correct. It need not amount to satisfaction on the balance of probabilities. It is thus not an appropriate standard where the exercise of power may operate to impair or extinguish a lawful political protest. In their written submissions, the applicants elaborated the point thus:
On the Council's case a Council officer, who does not need to have any legal or other special qualification, may hold only a slight opinion that conduct that is a part of, or necessarily incidental to, a political protest may contravene a provision of the Local Law. On that basis an authorised officer may by his direction stop that conduct and confiscate any relevant items, and thereby effectively impair or terminate the protest.
282 The applicants submitted that the theoretical possibility of challenging the officer's decision to issue a notice to comply under cl 14.13 does not save the clause from invalidity because the effectiveness of the political protest depends on timing and the inevitable delay in the determination of a judicial review proceeding has the practical effect of stifling the political protest.
283 Further, the applicants contended that unlike in Wotton, the officer who issues the notice to comply has no obligation to give reasons for doing so. The applicants submitted that a further impediment to a challenge to a notice to comply by legal proceedings is that once a notice has been issued, it takes effect immediately. There is then nothing on which an order of a court can operate. In the present case the respondents opposed the grant of interlocutory injunctions early in the proceedings on the basis that the notices to comply had been acted upon before the conduct of the Council could be reviewed.
Implied freedom of association
284 The applicants also relied on a separate implied freedom of association but they accepted that any such freedom would only exist as a corollary of the implied freedom of political communication, and the same test of infringement and validity would apply: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [112] per Gummow, Hayne, Crennan and Bell JJ.
285 The applicants' arguments referred to so far contended that the impugned Local Laws and Regulations were invalid and could not operate at all. As an alternative, the applicants submitted that the provisions should be given a distributive operation so that they did not apply to the conduct that was part of or necessarily incidental to the protest.
286 To give the provisions a distributive operation is mandated by s 22(1) of the Interpretation of Legislation Act 1984 (Vic) which provides:
22. Subordinate instruments to be construed subject to legislative power of
the State and to empowering Act
(1) Every subordinate instrument shall be construed as operating to the full extent of, but so as not to exceed-
(a) the legislative power of the State of Victoria; or
(b) the power to make the subordinate instrument conferred by the Act under or pursuant to which it is made-
to the intent that where a provision of a subordinate instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is not in excess of that power and the remainder of the subordinate instrument and the application of that provision to other persons, subject-matters or circumstances shall not be affected.
287 The proper approach to the application of such a section was explained in Victoria v Commonwealth (1996) 187 CLR 416 at 502:
Section 15A of the Interpretation Act may fall for application in two distinct situations. It may fall for application in relation to "particular clauses, provisos and qualifications, separately expressed, which are beyond legislative power". It may also fall for application in relation to general words or expressions. It is well settled that s 15A cannot be applied to effect a partial validation of a provision which extends beyond power unless "the operation of the remaining parts of the law remains unchanged". Nor can it be applied to a law expressed in general terms if it appears that "the law was intended to operate fully and completely according to its terms, or not at all".
Where a law is expressed in general terms, it may be more difficult to determine whether Parliament intended that it should, nonetheless, have a partial operation. And there is an additional difficulty if it "can be reduced to validity by adopting any one or more of a number of several possible limitations". It has been said that if, in a case of that kind, "no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid".
288 This approach was considered by McHugh J in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 (Coleman), to a provision which prohibited the use of insulting language in a public place. His Honour determined that the provision impermissibly burdened the freedom of political communication and then at [109]-[110] addressed the consequences thus:
109 In the present case, the appellant urged the Court to sever so much of s 7(1)(d) as was invalid, namely the words "or insulting" from the section. The respondents and the Commonwealth and South Australian Solicitors-General contended that it would be possible to read an exception into the provision to exclude communication connected with political matters necessary for the system of government prescribed by the Constitution.
110 Accordingly, the issue is whether that part of s 7(1)(d) which concerned insulting words should be severed from the paragraph or read down. In my opinion, the clear intention of s 9 of the Queensland Acts Interpretation Act is that, where possible, an invalid law should be saved to the extent that it is within the power of the Queensland legislature. In the present case, the relevant part of para (d) of s 7(1) was within the power of the Queensland legislature except to the extent that it penalised insulting words uttered in discussing or raising matters concerning politics and government in or near public places. It should be read down accordingly.
The submissions of the Council
289 The Council contended that the first Lange question asks whether the law effectively burdens political communication. The burden must be real and meaningful rather than remote or insubstantial. There is no effective burden where there is regulation which accommodates free and robust political exchange. The restriction on camping in tents and on placing things in the gardens in this case without permission is not an effective burden on political communication. Any burden is indirect and allows political discourse to be undertaken almost unaffected. The burden is not directed to communication. Many methods of communicating the political message are left untouched. Indeed other ways including by social media, signs, and marches were used by the protesters to impart the political message.
290 In its supplementary submissions following the delivery of judgment by the High Court in Adelaide Corporation, the Council drew support from the indirect nature of any burden on political communication, and the significance placed on this factor by the plurality in Adelaide Corporation as follows:
And, to the extent that they will burden political communication, they will do so only indirectly. This is a matter of no small importance, for a law which only incidentally restricts the freedom of communication is more likely to satisfy the Lange test.
291 The Council also emphasised that any burden was minor because a person could remain in the gardens and protest at any time as long as they did not camp in tents or bring in an item in breach of the provisions.
292 The Council took issue with the way in which the applicants sought to rely on the operation and practical effect of the laws in question. Mr Niall argued that the Lange questions could not be answered by regard to the way protesters sought to use the tents and other items. The applicants, it was argued, placed more weight on what happened at the protest than is permissible in the process of determining the answer to the Lange questions. The limitation on the use which could be made of the context in which the constitutional issue arises was explained by Hayne J in APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322 (APLA) at 381 as follows:
The implied freedom of political communication is a limitation on legislative power; it is not an individual right. It follows that, in deciding whether the freedom has been infringed, the central question is what the impugned law does, not how an individual might want to construct a particular communication.
293 In Wotton, Kiefel J expanded on this approach at [80] as follows:
The nature and aspect of the communication affected by the impugned provisions are not to be discerned by reference to restrictions upon the plaintiff's ability to communicate or the manner in which he communicates. The question is how the legislative provisions, which are sought to be impugned, may affect the freedom generally. The freedom is not a personal right, although its protection may serve also to ensure that citizens are able to communicate freely on the matters the subject of the freedom. The issues which the plaintiff identifies as those which he wishes to discuss may nevertheless assist in the identification of the area of communication which may be affected by the statutory provisions and they are relevant to his standing.
[Emphasis added]
294 The practical effect of the laws must be measured by their terms and operation. The practical effect of the laws is that people who wish to protest can apply for a permit to camp or place other items in the gardens and, if the permit is refused, the decision to refuse can be reviewed.
295 The Council then argued that even if the laws constituted a burden on political communication:
Wotton provides a complete answer to the claim of invalidity because the impugned laws serve a legitimate end; they allow for permission to be granted conformably with the Constitutional protection and any person affected can apply for reasons and any reasoned decision can be judicially reviewed.
296 As to whether the restrictions were directed to legitimate ends, the Council referred to its statutory role. It is a council under the Local Government Act. The statutory objectives of a council include to promote the environmental viability and sustainability of the municipal district (s 3C(2)(a)), to ensure that resources are used efficiently and effectively to best meet the needs of the local community (s 3C(2)(b)), and to ensure that services and facilities provided by a council are accessible and equitable (s 3C(2)(e)).
297 By reference to the Council's statutory role and of the evidence of Mr Shears referred to at [70] to [76] of these reasons for judgment, the Council submitted that the legitimate ends to which the laws were directed were to ensure the orderly and equitable use of the gardens. This purpose was akin to the legitimate purpose identified in Adelaide Corporation, namely, the regulation of the roads as a shared public resource by preventing obstruction from people haranguing, preaching, or handing out pamphlets.
The permission regime
298 Then, the Council argued that the constraints on the exercise of the discretion to grant permission were appropriate and adapted to secure the legitimate ends consistent with the freedom of communication on political matters. The Council's written submissions put it thus:
[T]he discretion to give or withhold permission must be exercised conformably with the Lange constraint. In the case of both the Local Law and the Regulations, the prohibitions said to burden political communication only apply in the event that the person does not hold a permission to engage in the relevant activity. The Council's discretion must be exercised according to law, subject to the empowering Acts, which are, in turn, subject to the limitation in Lange.
299 This analysis followed the reasoning in Wotton where the prohibition on interviewing prisoners except with the approval of the chief executive was upheld because the chief executive was required to exercise the discretion whether to allow the prisoner to be interviewed by reference to the subject matter of the power and apply the implied freedom of political communication in determining whether to grant permission. The joint judgment in Wotton stated at [9]:
It is important for the present case to note that s 9(1) of the Acts Interpretation Act 1954 (Qld) (the Interpretation Act) requires that the Corrective Services Act be interpreted to the full extent of, but not to exceed, the legislative power of the State legislature. The Corrective Services Act confers various discretionary powers which are expressed in broad terms. However, in accordance with general principles, these powers must be understood with regard to the subject matter, scope and purpose of the statute and must be exercised on application. Further, the discretionary powers must be exercised in accordance with any applicable law, including the Constitution itself.
300 The Council contended that any permit decision of the Council is reviewable. Further, the Council is bound to give reasons for a permit decision, because it is a tribunal for the purposes of the Administrative Law Act.
301 The Council relied on the judgment of Balmford J in No 2 Pitt Street. The applicant in that case owned a shopping centre in Wodonga. It obtained a permit for an extension to build a cinema in the centre. Later, another landholder applied for a permit to build a cinema in central Wodonga. The applicant objected to the grant of the permit. The council rejected the objection without hearing the applicant and granted the permit to the landholder. The ground on which the objection was rejected was that the objection was made primarily to secure a commercial advantage for the objector. The effect of the decision of the council on that ground was to deny the applicant an opportunity to apply to the Victorian Civil and Administrative Tribunal to review the council's decision. The rejection on that ground meant, under the legislation, that the objection was deemed not to have been made. The applicant sought to review, under the Administrative Law Act, the council's decision to reject its objection. Whether the applicant was entitled to bring the application for review depended upon whether the council was a tribunal within the meaning of s 2 of the Administrative Law Act, and that depended on whether the council was required to observe one or more of the rules of natural justice.
302 Her Honour said at [15]:
The law was summarised by Batt J in Keller v Bayside City Council [1996] 1 VR 356 at 378, where His Honour said at [15]:
The law in Australia now is … that there is a strong presumption that an administrative or executive decision-maker, the repository of a statutory power, owes a duty to accord procedural fairness, and in particular a 'hearing' in some form or other, to any person affected or likely to be affected by the decision, and not merely in respect of a legal or proprietary interest, even though that person is not directly involved in the decision-maker's proceedings; and a clear contrary legislative intent is required to rebut the presumption: Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-396; FAI Insurance Ltd v Winneke (1982) 151 CLR 342 at 360; R v Ludeke; Ex parte Customs Officers' Association of Australia (1985) 155 CLR 513 at 528; Kioa v West (1985) 159 CLR 550 at 584, 609-612 and 618-619; Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 at 651-653 …; and Annetts v McCann (1990) 170 CLR 596 at 598.
303 Her Honour found that the council was a decision maker exercising statutory power and the applicant was a person affected by the council's decision. Her Honour continued at [16]:
The next question for consideration, therefore, is whether there is a "clear contrary legislative intent" sufficient to rebut the presumption that in exercising that power, the Council was required to afford a hearing to a person who would be affected by the exercise of the power, and thus was, in that respect, a "tribunal" for the purposes of the Administrative Law Act.
304 Her Honour concluded that no such contrary intention was evident and hence the council was a tribunal for the purposes of the Administrative Law Act in that case.
305 Mr Niall drew attention to the fact that the requirements of natural justice encompass not only the hearing rule but also the rule against bias. He contended that the applicants have a sufficient interest in the Council permit decision to attract both aspects. Their interest is to ensure that the decision complies with their rights under the Charter, and also that it complies with the implied freedom of political communication.
306 The Council argued that the grounds on which the applicants sought to distinguish Wotton are unsustainable. The laws in Wotton were a direct burden on political communication and were, thus, harder to justify than the laws in this case, which only indirectly affect political communication. Further, as explained above, the Council contended that it was a tribunal for the purpose of s 2 of the Administrative Law Act and was bound to give reasons for its decision under s 8 in the same way that the chief executive was bound to give reasons for the decision to refuse permission to interview the prisoner in Wotton. Then, the practical effect of the laws in this case is that people may use their chosen form of protest in the gardens if they seek permission to do so. The decision to grant or refuse permission is subject to the implied freedom of political communication and is reviewable.
307 Next, the Council argued that in Wotton the High Court did not ask whether there were less restrictive measures that could have been imposed in order to uphold the validity of the laws. Contrary to the submissions of the applicants this formulation was not used in Wotton. Rather, the proper approach was articulated by Bathurst CJ in Sunol v Collier (No 2) (2012) 289 ALR 128; [2012] NSWCA 44 at [48] as follows:
[I]n determining whether a law is reasonably appropriate and adapted to a legitimate end, the question for the court is not whether some choice other than that made by parliament was preferable or desirable, but whether the parliamentary choice was reasonable in light of the burden placed on the constitutional freedom of communication. The role of the court is to ask whether parliament's enactment is a reasonable means of achieving its purpose, keeping in mind the importance of constitutional freedoms: Levy v State of Victoria (1997) 189 CLR 579 at 598, 608, 614-615, 618-620, 627-628 and 647-648…Mulholland above at [32]-[33], [234]-[239], [256] and [360]; Coleman above at [31], [100], [292] and [328].
[Emphasis added]
308 Finally, there is no basis for an assumption that the applicants' vindication of their legal rights would be delayed by the process of determination either by the Council or by the courts. If the circumstances justify a speedy determination, the judicial system has methods to accommodate such a requirement. In this case, interlocutory injunction applications were heard on 9, 11 and 16 November 2011 within days of the start of the protest. Further, on 11 November 2011 the Council determined an application for a permit made by the applicants on 8 November 2011 for a continuing presence starting on 8 November 2011. The applicants lodged further applications for permits on 17 November 2011 which were determined on 24 November 2011. Mr Cutter, who determined the applications, advised "[i]n view of the urgency of this application, however, I have not followed the usual path [which would require several months of consideration] as it is likely to defeat the purpose of the applications".
309 In its supplementary submissions the Council recalled its original argument that the nature of the discretion to grant or withhold a permit supported the validity of the provisions. This was because the discretion had to be exercised conformably with the subject matter, scope and purpose of the provision, and conformably with the implied freedom of political communication. Further, the permit decision was judicially reviewable. The Council contended that in Adelaide Corporation the High Court recognised the importance of these factors in upholding the validity of provisions. Crennan and Kiefel JJ said at [219] with Bell J agreeing:
It must be accepted that there will be occasions when the denial of permission to preach, canvass or distribute materials may prevent a political communication. However, the By-law is not directed to such a communication and has this effect only incidentally and only when it is necessary to achieve the object of securing the safe and convenient use of roads. It does not prevent a person speaking at every place to which the public may resort, but rather only those areas which come within the definition of a road. Given that the discretion must be exercised conformably with the purposes of the By-law, it may be assumed that permission will be denied only where the activities in question cannot be accommodated having regard to the safety and convenience of road users.
310 The Council contended that the constraints on the discretion of the Council to withhold permission under the impugned Local Laws and Regulations are relevantly the same as the constraints on the discretion in Adelaide Corporation, and hence the impugned provisions are valid.
311 In its supplementary submissions, the Council also relied on the developing guidance from the High Court on what amounts to less drastic means for meeting the purpose of a provision. In Monis, Crennan, Kiefel and Bell JJ said at [347]:
Where 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.
312 The Council argued that the applicants had not identified any available alternative measures to enforce the impugned provisions. There were none that were equally practicable and available, let alone obvious and compelling. An unrestricted right to camp was not an equally practicable way of securing the safe, equitable and convenient use of the gardens.
313 The Council's supplementary submissions correctly observed that, by then, the applicants' case had become focused primarily, if not exclusively, on the validity of cl 14.13. Consequently, the Council made a detailed supplementary submission directed to cl 14.13 which reflected largely, but not entirely, the same reasoning as was directed to the other provisions. In view of the narrowed focus of the applicants' case it is worth setting out the path of reasoning advocated by the Council which was separately directed to the validity of cl 14.13.
314 The Council submitted that the enforcement provisions provide a means of ensuring compliance with valid laws which have the purpose of protecting and managing the gardens. It is not a burden to comply with a valid law. Any burden is to be found in the prohibition, not the mode of enforcement. The notice to comply provisions did not prohibit or place any burden on political communication.
315 Even if the enforcement provisions did impose a burden on political communication, that burden is reasonably appropriate and adapted to securing the proper protection and management of the gardens. The mechanism is conditioned on the absence of permission to engage in the conduct. Permission may only be refused where the conduct would prejudice the proper management and use of the parks. The time and date for compliance specified in a notice must be reasonable (cl 14.17), the giving of a notice is subject to review, and the possible cost or delay in making a challenge is not an important factor in favour of invalidity.
316 The only alternative measure proposed by the applicants to cl 14.13 is a provision that the enforcement procedure not be available in relation to certain political conduct. But such a provision is not practicable, and, in any event, not obvious or compelling. That type of alternative measure was rejected in Adelaide Corporation, where Crennan and Kiefel JJ said at [218] with Bell J agreeing:
This underestimates the difficulty inherent in defining what will qualify as a political communication.
317 Further, a carve out of that type would not serve the purpose of the laws, namely, the protection, orderly and safe management and use of the gardens. It would automatically give precedence to people engaging in political conduct over the protection, orderly and safe management and use of the gardens.
318 Then, the applicants contended that the Council could use cl 14.19 to enforce the impugned provisions. However, cl 14.19 has a limited operation. It is not equally practicable, and also not obvious or compelling. The carve out necessary to protect political communication is achieved by the permission system.
319 In its supplementary submissions, the Council disputed the applicants' contention that the use of the notice to comply procedure allowed the Council to quash the protest. First, the Council contended that as a matter of fact, the applicants were free to continue the protest, but without camping in tents. Second, the burden imposed by the laws is not to be assessed by reference to the possible effect on the applicants. In Adelaide Corporation Crennan and Kiefel JJ said at [220] with Bell J agreeing that:
It must be recalled that the extent of the burden imposed by the By-law is not assessed by reference to its effects on the second and third respondents. There is no personal right of political communication. The extent of the burden is assessed by reference to the need to maintain the system of representative government which the Constitution mandates. The freedom requires that political communication not be restricted to such an extent that it is compromised as being free. Some degree of burden is permitted unless it is, as was said in Lange, "undue". It cannot be concluded that the operation of the By-law will have such an effect.
320 The Council finally submitted that the separate attack on the enforcement actions of the Council officers must fail. If the laws comply with the constitutional requirements because there is a permission regime, the Council officers do not act inconsistently with the implied freedom if they take action against people who do not have a permit.
The submissions of the Attorney-General
321 Each of the written submissions of the Council and of the Attorney-General put forward essentially the same arguments. Those arguments have been set out in the previous section of these reasons for judgment. These arguments were addressed orally, initially by Mr Niall. Dr Donaghue, with one exception, adopted these oral submissions. However, Dr Donaghue elaborated on a number of the arguments in oral submissions. As these elaborations provide some valuable additional insight they will be described in this section of these reasons for judgment.
322 Dr Donaghue first addressed the proper approach to be adopted to the answers to the Lange questions. He submitted that the focus is on the validity of the laws in question not the effect of the laws on the chosen method of expression by the particular litigants. This was the point made by Hayne J in APLA in the passage extracted at [292] of these reasons for judgment. Dr Donaghue formulated the proper question as "does the law, in its terms, operation or effect, effectively burden freedom of communication about government or political matters looking at the general or expected operation of the law rather than its application to these protestors".
323 Dr Donaghue then argued that a law does not burden political communication unless by its operation or practical effect it directly and not remotely restricts or limits the content of those communications as to time, place, manner, or conditions of their occurrence: Coleman per McHugh J at [91]. The applicants accepted that this was not a case of direct restriction but a case of a restriction on the manner of communication. That required the applicants to show that camping was a means of communication which the implied freedom protects. The question then is whether camping expresses something, and if so whether the subject matter of the communication attracts the implied freedom.
324 Camping as a means of communication has been the subject of cases overseas concerning freedom of expression. They raise issues of fact. Thus, in Zhang, it was not difficult to connect the meditation hut erected by the Falun Gong opposite the Chinese Consulate with the point being made by the protesters.
325 It is not in doubt that non verbal conduct may be the subject of the implied freedom: Levy per Brennan CJ at 594 – 595, McHugh J at 626 and Kirby J at 637. However, it is necessary that the conduct amounts to a communication within the protection of the constitutional freedom, namely, the maintenance of the system of representative and responsible government provided for in the Constitution.
326 Dr Donaghue contended that the facts in this case did not show that camping itself communicated the political message. The events occurred at different locations which, although all public places, did not relate to the point being made by the protesters in the way, for instance, that the occupation of Wall Street related to criticisms of the capitalist system. Further, whilst the protesters had some common political messages, the first applicant explained in his affidavit affirmed on 12 December 2011:
Within the Occupy Melbourne movement, individuals express their own distinctive opinions on issues concerning politics and government in Australia. Occupy Melbourne supports this as an essential of its participatory democracy. Thus, in my opinion, while the Occupy Melbourne movement coalesces around the general protests that I have described above, individual protesters who are involved in the Occupy Melbourne movement can and do express their own opinions about particular issues affecting politics and government in Australia. For instance, as part of the broader Occupy Melbourne movement, I have protested about a lack of a treaty between the Government of Australia and the Indigenous peoples of Australia, workers' rights, violence against women and corporate greed. Other protesters have protested about other issues.
327 Dr Donaghue contended that cl 2.11 burdened camping in tents but that camping did not connect with the subject of the implied freedom. The provision is an indirect burden on something that is facilitative of communication. But it is not itself the communication.
328 Dr Donaghue sought to draw some support from US, Canadian, and UK authorities relating to freedom of speech and expression for the answer to the second Lange question.
329 In Clark v Community for Creative Non-Violence, 468 US 288 (1984) the National Park Service issued permits for two tent cities to be erected in Lafayette Park and the Mall in Washington DC to demonstrate against the plight of the homeless. However, utilising a regulation which restricted camping to designated camping areas, the National Park Services denied permission to the protesters to sleep in the tents. The majority assumed that the tent cities were, and sleeping in the tents, was, expressive conduct. The approach in the US was explained at 293 thus:
Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest, and that they leave open ample alternative channels for communication of the information.
330 The majority first addressed whether the demonstrators were, despite the regulation, able to express their view and said at 295:
The regulation otherwise left the demonstration intact, with its symbolic city, signs, and the presence of those who were willing to take their turns in a day-and-night vigil. Respondents do not suggest that there was, or is, any barrier to delivering to the media, or to the public by other means, the intended message concerning the plight of the homeless.
331 The majority considered whether the regulation secured a justified government objective. The regulation focused on the government interest in maintaining the parks in the heart of the capital city in an attractive and intact condition and available to millions who wished to use them. The restriction on camping would limit the nature, extent and duration of the demonstration and thereby provide some protection for the park. Consequently, the regulation was valid.
332 In Canada, the Federal Court of Appeal in Weisfeld v The Queen [1995] 1 FC 68 (Weisfeld) considered the case of a peace camp on Parliament Hill in Ottawa protesting against the testing of cruise missiles. The camp was established by the demonstrators and then removed by government officials on a number of occasions between 1985 and 1988. At different times the camp comprised a number of tents, a more permanent structure, a literature table, and a banner. The appellant contended that the removal of the camp infringed his freedom of expression under s 2(b) of the Canadian Charter. The Court held that the camp was expressive conduct which prima facie attracted the guarantee.
333 Section 1 of the Canadian Charter provided that the freedom was guaranteed "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". One element of the test of reasonable limits was whether the restriction impaired the freedom as little as possible. Dr Donaghue observed that this was a higher threshold than required in Australia and, hence, if a restriction was held justified in Canada, it would be the more so in Australia. The aspect on which Dr Donaghue relied was expressed at 256 thus:
[T]he government restricted only one form of the appellant's expression: the shelter. The government did not interfere with the various other means by which the appellant could communicate his message to the public. The appellant was free to talk with passers-by, to hand out printed literature, and even to display a banner. There were no tanks or guns used here to suppress all dissent. Much milder restrictions were employed. I am of the view that merely denying the appellant the right to erect and to occupy a permanent shelter, but leaving unimpaired his other means of communicating his message, infringed the appellant's freedom of expression as little as was reasonably possible in the circumstances.
334 Dr Donaghue contended that this same reasoning is applicable to the answer to the second Lange question in this case. The restrictions are justified because they left other means of protest open to the protesters.
335 To a similar effect is the judgment of the Court of Appeal in the UK in Mayor of London (on behalf of the Greater London Authority) v Hall [2011] 1 WLR 504 (Hall). A group of protesters established a camp named Democracy Village in Parliament Square Gardens in London opposite the Houses of Parliament. The demonstration was against the war in Afghanistan, the war in Iraq, genocide, war crimes and worldwide environmental issues. The Mayor of London sought orders for possession after the demonstrators had been camping in the gardens for several months. By-laws governing the gardens prohibited camping in a tent. The Master of the Rolls with Arden and Stanley Burnton LJJ agreeing said at [37]:
[T]he defendants' desire to express their views in Parliament Square, the open space opposite the main entrance to the Houses of Parliament, and to do so in the form of the Democracy Village, on the basis of relatively long-term occupation with tents and placards, are all, in my opinion, within the scope of articles 10 and 11 [of the European Convention for the Protection of Human Rights and Fundamental Freedoms which protected freedom of expression and assembly respectively].
336 At [39] the Master of the Rolls said:
The byelaws themselves cannot be said to fall foul of articles 10 and 11: they envisage demonstrations, speeches, camping, placards and the like being permitted subject to the mayor's consent.
337 The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) permitted restrictions on freedoms and rights. At trial it was found that there was a pressing social need not to allow an indefinite camp protest in order to protect health, as there was no running water or toilets; to prevent crime, as there was evidence of criminal damage to flower beds and graffiti; and to protect the rights of access of others. Further, it was found that the camp prevented proper maintenance and control over the world renowned site. Consequently, the removal of the protesters was a proportionate response. The Master of the Rolls continued at [48]:
It is important to bear in mind that this was not a case where there is any suggestion that the defendants should not be allowed to express their opinions or to assemble together. The claim against them only relates to their activities in PSG [Parliament Square Gardens]. It is not even a case where they have been absolutely prohibited from expressing themselves and assembling where, or in the manner, in which they choose. They have been allowed to express their views and assemble together at the location of their choice, PSG, for over two months on an effectively exclusive basis. It is not even as if they will necessarily be excluded from mounting an orthodox demonstration at PSG in the future. Plainly, these points are not necessarily determinative of their case, but, when it comes to balancing their rights against the rights of others, they are obviously significant factors.
338 Dr Donaghue called these comments in aid of the argument that the restriction on camping without a permit in Treasury and Flagstaff Gardens and Gordon Reserve did not amount to an effective restriction on the protesters from communicating their message.
339 Dr Donaghue referred to the UK case which adopted the same argument in relation to the Occupy Movement itself. Protesters established a camp on highway land owned by the City of London in the vicinity of St Paul's Cathedral. In City of London Corporation v Samede [2012] 2 All ER 1039; [2012] EWCA Civ 160 (Samede), the Court of Appeal considered whether arts 10 and 11 of the European Convention prevented the City of London from obtaining possession of the land from the protesters. As in Hall, the Court accepted that the freedom of expression and assembly were engaged. Their Lordships said at [49]:
The essential point in Hall [2011] 1 WLR 504 and in this case is that, while the protesters' Article 10 and 11 rights are undoubtedly engaged, it is very difficult to see how they could ever prevail against the will of the landowner, when they are continuously and exclusively occupying public land, breaching not just the owner's property rights and certain statutory provisions, but significantly interfering with the public and Convention rights of others, and causing other problems (connected with health, nuisance, and the like), particularly in circumstances where the occupation has already continued for months, and is likely to continue indefinitely.
340 In relation to the effect of the restriction on the communication of the protesters' message, their Lordships said at [42]:
In Appleby (2003) 37 EHRR 38, the Strasbourg court accepted that the applicants' Article 10 and 11 rights were engaged, but held that there was no infringement of those rights because '[r]egard must also be had to the property rights of the owner of the [privately owned] shopping centre', and there were other places where the applicants could exercise their Article 10 and 11 rights. While St Paul's churchyard is a particularly attractive location for the Movement, in view of its prominence in the City of London, the Judge's orders clearly do not prevent the Movement protesting anywhere other than the churchyard. And there are many 'rights' with which the Camp interferes adversely.
341 In his supplementary submissions, the Attorney-General contended that the same approach was adopted by the High Court in Adelaide Corporation. The by-law applied to roads which were defined widely. However, in answering the second Lange question Crennan and Kiefel JJ at [212] with Bell J agreeing and French CJ at [68] observed that the by-laws did not restrict political communication in other public places. Similarly, in the present case, the provisions applied to certain parts leaving other public places unaffected.
342 Dr Donaghue submitted, as did Mr Niall, that the Council could be required to give reasons for a decision whether to grant or refuse a permit under the impugned Local Laws or the Regulations. However, he proposed a different analysis. Wotton required that the impugned Local Laws and the Regulations be read so that they fell within constitutional limits. Thus, the decision to grant or refuse a permit is governed by the requirements of the implied freedom. That means that the Council is bound to grant a permit where to refuse a permit would impermissibly burden political communication. There is therefore a right to a permit if refusal would offend the constitutional limit. The right to a permit is a statutory right sufficient to attract the requirements of natural justice. The application cases, such as FAI, concern applications for permission which the applicant had no right to receive. Under the impugned Local Laws and Regulations an applicant for a permit has a right to a permit if refusal would impermissibly burden the implied freedom of political communication.
343 In his supplementary submissions, the Attorney-General relied on what was said in Adelaide Corporation concerning the scope of the discretion to grant permission and its significance for the validity of the provisions. Crennan and Kiefel JJ at [216] with Bell J agreeing contrasted the width of the discretion in the impugned provisions in Adelaide Corporation with the width of the different discretion in the impugned provisions in Wotton. Their Honours observed that the exercise of discretion in Wotton was conditioned on what was reasonably necessary, and hence, imported a requirement of proportionality. Their Honours regarded this as an important factor in favour of validity. However, even though the exercise of discretion in Adelaide Corporation was not conditioned on any express requirement of reasonableness, this did not result in invalidity. Crennan and Kiefel JJ at [213] with Bell J agreeing held that the discretion had to be exercised for the purposes of the provisions, was subject to internal review by the Council, and to judicial review by the Supreme Court.
344 In the present case the power of the Council to grant or withhold permission is limited by the purposes of the provisions, but also by the requirements of s 38(1) of the Charter, and thereby the tests of reasonable necessity in s 15(3) and proportionality in s 7(2) of the Charter.
345 Then, Dr Donaghue addressed the extent to which there is legislative choice in the means used to accommodate the implied freedom. The proper approach was articulated by McHugh J in Coleman, at [100] as follows:
As the reasoning in Lange shows, the reasonably appropriate and adapted test gives legislatures within the federation a margin of choice as to how a legitimate end may be achieved at all events in cases where there is not a total ban on such communications. 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.
346 The applicants at the hearing contended that the Council should have prescribed specific criteria applicable to granting a permit in respect of political events. Dr Donaghue said that this approach conflicted with the approach of McHugh J in Coleman as it required the Court to make nice judgments between one permit regime and another.
347 An argument such as proposed by the applicants was rejected in a case brought by members of the Occupy Movement in Toronto. In Batty v City of Toronto (2011) 108 OR (3d) 571; (2011) ONSC 6862 (Batty) a tent camp was established in St James Park. The city authorities served notice under by-laws requiring the protesters to stop erecting tents and occupying the park overnight. The protesters challenged the notice on grounds including that it infringed their rights to freedom of conscience, expression, peaceful assembly, and association under the Canadian Charter. D M Brown J accepted that the Charter provisions were engaged and examined whether the by-laws were constitutionally valid. One argument of the protesters was that in order to comply with the Charter, the regulations should have specified the circumstances in which political speech would be exempt from the by-laws. In rejecting this argument his Honour said at [120]:
Moreover, it strikes me as going beyond the bounds of constitutional reasonableness to require, as a matter of general principle, that a municipality should have to turn its mind to and craft detailed exemption policies for every possible contingency. There is a reason why at a certain level in the legislative pecking order the only practical course of action is to delegate authority so that discretion can be applied to the multitude of scenarios which inevitably present themselves when applications for such things as permits are made. The way to police such delegated power is by imposing general requirements on the proper exercise of discretion, not a constitutional obligation to draft policies to cover every possible contingency.
Dr Donaghue contended that the same approach was applicable in the present case.
348 In his supplementary submissions, the Attorney-General drew support on this issue from the judgments in the High Court in both Adelaide Corporation and Monis. He submitted that in both cases the High Court said that when considering whether there were other less drastic means of achieving the legitimate object of the by-laws, the proposed alternative must be equally practicable and available: Adelaide Corporation [207], Monis [347]. In Monis Crennan, Kiefel and Bell JJ said that the conclusion would only be reached where the alternative means were obvious and compelling. In Adelaide Corporation, their Honours at [207] identified the difficulty of prescribing, in advance, whether, when and upon what conditions an activity might be conducted. They concluded that it was difficult to conceive how in that case the use of roads could be regulated so as to meet the objectives of the by-law other than by the permission regime.
349 The carve out suggested by the applicants in their supplementary submissions, namely, that political communication be excluded from the enforcement procedure, did not sufficiently identify the area of exclusion in a way which would not undermine the objectives of the impugned Local Laws and Regulations. As was recognised in Adelaide Corporation, that suggestion underestimates the difficulty inherent in defining what will qualify as political communication.
350 The Attorney-General referred to the following passage in the judgment of Crennan and Kiefel JJ in Adelaide Corporation at [219]:
It must be accepted that there will be occasions when the denial of permission to preach, canvass or distribute materials may prevent a political communication. However, the by-law is not directed to such a communication and has this effect only incidentally and only when it is necessary to achieve the object of securing the safe and convenient use of roads. It does not prevent a person speaking at every place to which the public may resort, but rather only those areas which come within the definition of a road. Given that the discretion must be exercised conformably with the purposes of the by-law, it may be assumed that permission will be denied only where the activities in question cannot be accommodated having regard to the safety and convenience of road users.
The Attorney-General contended that the reasoning can be applied with greater force in favour of validity in the present case. In Adelaide Corporation the by-law restricted speech. In the present case the provisions do not. The supplementary submissions then summarised the proper approach in this case as follows:
[T]he burden that must be justified is, at most, very slight. The protesters can gather every day in the Gardens, hold political signs, and communicate their views in many ways without needing permission.
The law prohibiting camping (and the like) without permission is, if it limits political communication at all, a proportionate limit upon such communication. The enforcement of that law through giving notices to comply in circumstances where no permission has been obtained (or even sought) is also proportionate. The applicants appear to submit that the respondents should have taken steps to enforce the law other than that which had the effect of immediately preventing the breach. These alternative steps cannot be equally practicable in achieving the purpose of the Local Law or Regulations. Indeed, they would be ineffective in achieving that purpose (at least in a timely fashion). It was open to the applicants to seek permission and, if that was refused, to seek judicial review of the decision including on Charter Act grounds. Judicial oversight is readily available, including in the Court on an urgent basis, but the applicants chose not to utilise it.
Consideration
351 The first Lange question asks whether in its terms, operation or effect, the law effectively burdens freedom of communication about government or political matters. If this is answered affirmatively, the second question asks whether the law nevertheless is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
352 Almost every one of the considerations relevant to each of the questions attracted controversy in this case. Hence, the individual elements of each question need to be examined.
353 In relation to the first Lange question the following elements require attention:
(a) Did the impugned provisions burden a communication?
(b) If so, is this the type of communication which the Constitution protects?
(c) Did the applicants wrongly focus on the terms, operation or effect of the impugned provisions on their protest rather than on the terms, operation or effect of the impugned provisions on the freedom to communicate on political matters?
(d) Was the burden of the impugned provisions an 'effective' burden?
Did the impugned provisions burden a communication?
354 The implied freedom of political communication protects verbal forms of communication as well as non-verbal conduct. Actions as well as words can communicate ideas: Levy per Brennan CJ at 594 - 595.
355 Thus, when Mr Levy stood before the television cameras among the bloodied ducks in the prohibited area on the shore of Lake Buloke to protest against the laws which permitted duck hunting, he was communicating a message without saying a word. Kirby J explained at 638 that:
A rudimentary knowledge of human behaviour teaches that people communicate ideas and opinions by means other than words spoken or written. Lifting a flag in battle, raising a hand against advancing tanks, wearing symbols of dissent, participating in a silent vigil, public prayer and meditation, turning away from a speaker, or even boycotting a big public event clearly constitutes political communication although not a single word is uttered. The constitutionally protected freedom of communication in Australia must therefore go beyond words. But where may the boundary be set to put limits so that the constitutional protection is not debased by extending it to every activity of ordinary life?
356 In order for conduct to qualify as communication for the purpose of the implied freedom of political communication, the conduct must convey an idea or meaning.
357 The Canadian cases on the constitutional freedom of expression are helpful on this question even if expression for Canadian purposes and communication for Australian purposes are not entirely the same concept. Both require conduct which conveys an idea or meaning. Thus, in reversing the trial judge on this question, Linden JA with whom Mahoney and McDonald JJA agreed, held in Weisfeld that the peace camp on Parliament Hill protesting against cruise missile testing in Canada amounted to expressive conduct. The trial judge found that erecting or placing tents, tables, and other objects in the grounds of Parliament did not itself convey a message, but rather, the message of protest was conveyed by handing out leaflets, marching, and carrying placards. Linden JA said:
It may be that a person walking by the peace camp would not immediately have realized that the appellant's specific message was "we don't want the Canadian government to accede to U.S. requests to test cruise missiles in northern Alberta". This does not mean, however, that the placing of the structure on Parliament Hill did not convey or attempt to convey a message. The act of private citizens building a very visible structure on the grounds of Parliament Hill, as well as maintaining a vigil there for more than two years, certainly conveys some kind of meaning. Similar peace camp protests were used in other countries at that time. This camp was meant to link up with other similar protests. The structure itself, therefore, helped to dramatize the message the appellant was seeking to communicate. It also manifested the protestors' commitment to the cause.
In my view, expression goes beyond words. People may choose to amplify or dramatize their messages in many ways: a sandwich board, a soapbox, a megaphone, a flag, a banner, a placard, a picture, a petition, all can be used to convey a message or to assist one in conveying a message more effectively. These "props" are part and parcel of the manner in which one chooses to express oneself and are as deserving of protection as the words used to convey the meaning. The peace camp structures and the tables used are, therefore, included in the concept of expression.
358 In the present case, the Attorney-General argued that the laws that prohibited camping in tents were not laws that burdened communication but, at best, were concerned with conduct that was facilitative of communication. Consequently, the implied freedom did not apply to the impugned provisions which restricted camping in tents.
359 The camping in tents provided accommodation, shelter, and the facilities needed to conduct the protest such as meeting places, notice boards, kitchen facilities and first aid facilities. These facilities made the protest possible. If those facilities were just a base from which a protest there or elsewhere was conducted it would be true to say that the camping in tents was facilitative of communication but not itself communication. Then the camping would not have conveyed the idea of political protest.
360 However, the impugned provisions which prohibit camping without permission were a burden on a form of non-verbal communication which the implied freedom protects in the same way that by-laws in Levy were a burden on communication for the purposes of the implied freedom. The tents set up for camping in the gardens were symbols of the cause of the Occupy Movement. The Occupy Movement had become recognised through similar occupations in other cities. The camp signalled to the community that the same ideas as were promoted by the Occupy Movement were being promoted in Melbourne. Banners at the site told the community that the presence in the gardens was in aid of the Occupy Movement. The tents were as much part of the publicity for the cause as the banners themselves. The concept of the Occupy Movement was to "occupy". That is what camping in the tents made good. Their placement in the gardens was symbolic of the claim that 99 per cent of the community were disenfranchised and their voices were not heard by government or business. By taking over a public space, the camp made a demand for the disenfranchised to have a say. The tents were part and parcel of the protest. They communicated the idea of the Occupy Movement. They were not just a base from which the protest was conducted. Katzmann J recently reached the same conclusion in relation in the Occupy Movement protest in Sydney: O'Flaherty v City of Sydney Council (2013) FCR 484; [2013] FCA 344.
Is this the type of communication which the Constitution protects?
361 On this point there was no controversy. The impugned provisions burdened a communication which protested against the form of government in Australia. The protesters argued that 99 per cent of the community was disenfranchised because the corporate world had an influence which excluded the rest of the population. The communication was obviously about political matters concerned with the system of government prescribed by the Constitution.
Did the applicants wrongly focus on the terms, operation or effect of the impugned provisions on their protest rather than on the terms, operation or effect of the impugned provisions on the freedom to communicate on political matters?
362 The applicants' argument focused on the effect of the impugned provisions on their protest. The applicants complained that the practical effect and operation of the impugned provisions allowed the Council to bring the protest to an end. The way the complaint was formulated at the hearing owed much to the approach taken by the Full Court of the Supreme Court of South Australia in Corneloup. The Full Court had the view that the practical effect and operation of the by-law which required a permit to preach on the roadway would "strangle political speech almost as effectively as an absolute prohibition".
363 The respondents and the Attorney-General contended that this was the wrong approach because it placed undue emphasis on the individual impact of the impugned provisions on the applicants. The touchstone is not the effect of the law on the applicants but rather the effect of the law on the freedom of political communication as a systemic matter. The point was supported by reference to a passage from the judgment of Kiefel J at [80] in Wotton as follows:
The nature and aspect of the communication affected by the impugned provisions are not to be discerned by reference to restrictions upon the plaintiff's ability to communicate or the manner in which he communicates. The question is how the legislative provisions, which are sought to be impugned, may affect the freedom generally. The freedom is not a personal right, although its protection may serve also to ensure that citizens are able to communicate freely on the matters the subject of the freedom.
364 The freedom of political communication is a constitutional restraint on legislative power. However, it operates in a way that impacts on the ability of people to communicate. This impact is relevant to the determination of the first Lange question. Indeed her Honour completed the statement above by recognising this when she said:
The issues which the plaintiff identifies as those which he wishes to discuss may nevertheless assist in the identification of the area of communication which may be affected by the statutory provisions and they are relevant to his standing.
[Emphasis added]
365 The distinction between the implied freedom of political communication and a personal right to free communication is largely a theoretical distinction. The above passage recognises that the distinction has a limited practical significance in answering the first Lange question. Canadian and European cases which are concerned with the freedom of political expression as a personal right have been referred to in the arguments in this proceeding to assist in determining the Lange questions. The cases demonstrate the similarities in the reasoning which is involved with cases relating to the implied freedom of political communication in Australia and cases that deal with the freedom as a personal right.
366 On the other hand, the significance of the distinction between the implied freedom and a personal right of communication on political issues was regarded as critical in Adelaide Corporation by Crennan and Kiefel JJ at [222] with Bell J agreeing when their Honours said:
The Full Court held that the requirement of permission is incompatible with the freedom. It is evident from the statement that "[m]embers of a democratic society do not need advance permission to speak on political matters" that the Full Court considered that the freedom is in the nature of a personal right and one which is absolute. With respect, this involves a misunderstanding of the freedom. It operates as a restriction upon legislative power, not as a right, and is not absolute. Some restriction upon the freedom may be permissible.
367 The Full Court in Corneloup thought that the operation or practical effect of the by-law would strangle political speech and stifle political debate. The plurality in the High Court in Adelaide Corporation differed on that view of the operation and practical effect of the by-law. It is evident from the reasons of the Full Court of the Supreme Court of South Australia that the distinction between the implied freedom of political communication and an individual right to free political communication did not play a role in its reasoning. It is not clear why the plurality in Adelaide Corporation thought there was a misunderstanding by the Full Court of the Supreme Court of South Australia. That Court simply took a different view about the operation and practical effect of the by-law.
Was the burden of the impugned provisions an 'effective' burden?
368 In most of the implied freedom of political communication cases the question of what is an effective burden has not arisen because it has been accepted that the burden was effective. The central question in most of these cases concerned the second Lange question, namely, whether the burden could be justified.
369 Indeed, in view of the inquiries required by the second Lange question, there is almost no scope for the operation of the "effectiveness" requirement. At best it operates as a low level filter so that plainly inconsequential impediments will not needlessly require an examination of the more complex inquiries involved in answering the second Lange question.
370 There was some discussion of the role of the effectiveness requirement in Monis. Hayne J said at [108]:
The expression "effectively burden" means nothing more complicated than that the effect of the law is to prohibit, or put some limitation on, the making or the content of political communications.
371 Crennan, Kiefel and Bell JJ said at [343]:
Nevertheless, s 471.12 "effectively burdens" such communications for the purpose of the first limb of the test. Political communication which is offensive within the meaning of the section will be penalised, and may be deterred for that reason. It may be accepted that an effect upon political communication which is so slight as to be inconsequential may not require an affirmative answer to the first limb enquiry, but it cannot be suggested that s 471.12 falls within this category, even if its likely effect is hard to quantify. Once a real effect upon the content of political communication is seen as likely, attention must be directed to the second limb of the test. That is because the evident purpose of Lange is to require a justification for a burden placed upon the freedom. This is not to say that the level of the restriction or burden which is imposed is not relevant. Lange itself shows that it is; but it is a question to be addressed in connection with consideration of the second limb of the Lange test.
[Emphasis added]
372 In this case the respondents and the Attorney-General contended that the effect of the impugned provisions was insubstantial and minor. Many other methods for communicating the political message were left open.
373 The applicants argued that part of the way they sought to convey their political message was to remain in public places for a protracted period. The impugned provisions restricted them in so doing.
374 The effect on political communication of the impugned Local Laws and Regulations was not significantly less than has been accepted as effective in other political communication cases. Thus, in Monis the prohibition on the use of mail for offensive purposes was an effective burden. In Levy the prohibition on attending specified areas to protest against duck hunting was an effective burden. In Lange the common law of defamation was an effective burden because it exposed people who made defamatory statements to claims for damages.
375 The impugned provisions had a real effect on the freedom of political communication which was not slight or unsubstantial. Hence, the burden imposed by those provisions was effective for the purpose of the answer to the first Lange question.
376 The High Court judgments concerning the implied freedom of political communication have regularly said that the Lange questions are settled law or accepted doctrine or reflect established principles: see for example Hayne J in Adelaide Corporation at [131] and in Monis at [101] and [120]. French CJ in Adelaide Corporation at [67], Hayne J in Monis at [106] and French CJ, Gummow, Hayne, Crennan and Bell JJ in Wotton at [25] perhaps more accurately said that the terms of the questions are settled.
377 At the same time the judgments have observed, and sought to remedy, the lack of clarity in the expression of the questions. A recent example is the judgment of Crennan, Kiefel and Bell JJ in Monis at [279] and [282]. The attempts to clarify the elements of the second Lange question have been articulated in different ways which are not easy to reconcile. For example, compare Hayne J in Monis at [125] to [146] and Crennan and Kiefel JJ in Adelaide Corporation at [202] to [222]. For the purpose of this case it is not necessary to disentangle these disparate individual approaches. That is because at the centre of the controversy in this, and in most of the political communication cases, is the issue which was possibly most simply captured by Crennan, Kiefel and Bell JJ in Monis at [282] as follows:
[T]he law must also be proportionate, or reasonably appropriate and adapted, to the first object of maintaining representative government. This inquiry involves the relationship between that object and the means employed by the legislation. It is tested by assessing the extent of the restriction imposed upon political communication, the subject of the freedom.
This inquiry necessarily addresses the question whether the burden on the implied freedom is too great or undue: Monis at [278].
378 The starting point is to identify the object of the impugned Local Laws and Regulations. In this case there was no controversy concerning this step.
379 The object of the impugned provisions is to provide for the preservation, care, and maintenance of the gardens and for the equitable use of them. These objects are stated in the Local Government Act (s 3C) and in the Local Law (cl 1.2) and in the Regulations (reg 2). The way in which the impugned provisions achieve these objects is to prohibit camping in tents and to prohibit bringing certain things into the gardens unless authorised by a permit granted by the Council, and to provide a process of enforcement of the provisions.
380 The object of the impugned provisions and the way in which they achieve the object is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The form of government which is dependent on the freedom of people to communicate on political matters can coexist with the system of regulation of the gardens under the impugned Local Laws and Regulations which require a permit issued by the Council to camp in tents or bring certain things into the gardens and which provide for the enforcement of this system.
381 The remaining question is whether the impugned provisions are reasonably appropriate and adapted to achieving the objects in a way that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
382 Another way of expressing this inquiry which was articulated by Crennan, Kiefel and Bell JJ in Monis is to ask whether there is a reasonable proportionality between the way the laws achieve their object and the degree of restriction on political communication which the laws impose. Indeed, their Honours favoured this form of expression. They explained at [344]:
The second limb of the Lange test asks whether s 471.12 is "reasonably appropriate and adapted" to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative government. In Lange it was said that there was no need to distinguish between the concept to which the phrase "reasonably appropriate and adapted" might give expression and proportionality. Given that Lange most clearly involves proportionality analysis, the question arises whether the use of the term "reasonably appropriate and adapted" should be continued in connection with the Lange test, or in other areas where proportionality analysis is employed such as s 92 of the Constitution.
383 There were three major areas of debate concerning this part of the second Lange question. The respondents and the Attorney-General contended that the impugned provisions were a reasonable balance between protecting the gardens and providing freedom of political communication. This was, first, because the provisions restricted political communication in a limited way and, second, because the provisions provided a system for obtaining permission to use the gardens in ways otherwise prohibited. The third major area of argument involved the applicants' contention that the impugned provisions were invalid because the Council could have adopted less drastic means to achieve the protection of the gardens. Each of these matters will now be addressed.
384 First, it should be accepted that the extent to which the impugned provisions restrict political communication is limited. What is prohibited is camping in tents without a permit and bringing certain items into the gardens without a permit. People may come to the gardens. They may stay in the gardens as long as they wish. They may come and stay in the gardens in large numbers. They may carry banners or signs with messages of political protest. People may congregate, speak publicly on political issues and hold meetings in the gardens. They may use the gardens to make a political protest as long as they do not camp in tents in the gardens without a permit or bring certain items into the gardens without a permit. Thus, the impugned provisions prevent people who do not hold a permit from mounting one particular form of occupation of the gardens. But, the impugned provisions leave open a wide range of other alternative forms of occupation of the gardens if the protesters regard occupation as a necessary part of their political message. One reason given by Mr Cutter when he refused the permit applications was that the applicants were free to use the gardens to protest without a permit as long as they did not camp in tents. The Council recognised that the restriction on occupation of the gardens was constrained.
The permission regime
385 Next, the extent of the restriction on political communication is qualified by the permission regime. Protesters may apply to the Council for a permit to camp in tents in the gardens or bring specific items into the gardens. The responsibilities of the Council are to preserve, protect and maintain the gardens and to regulate the use of them. The evidence of Mr Shears explained the complexity of the Council's functions. The gardens have historical and horticultural values. They are visited by a very large number of people. The facilities such as toilets, water and showers are not generally provided in a way which allows people to live in the gardens for an extended period. Many of the trees in the gardens are very old and need to be carefully managed, particularly in adverse weather conditions such as drought. The Council is in the best position to assess whether permission to camp in tents in the gardens should be given because it manages the gardens and has the experience and organisation to undertake these functions. The impugned provisions adopt a rational choice by providing for the Council to be the body to issue permits.
386 The respondents and the Attorney-General contended that the constraints on the way the Council was required to exercise its discretion to grant or refuse a permit ensured that the impugned provisions were reasonably appropriate and adapted to protect the gardens in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
387 In Wotton at [31] it was said that the discretion vested in the chief executive to grant permission to interview a parolee had to be exercised for the purpose of the power, and also in accordance with the constitutional limitations as explained by Brennan J in Miller in the passage extracted at [260] of these reasons. These limitations on the way in which the discretion could be exercised were important to the finding of validity.
388 In Adelaide Corporation, the emphasis seems to have shifted to a focus on the requirement that the discretion be exercised only for the purpose for which it was given, being a purpose compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. This is evident because in Wotton the discretion of the chief executive had to be exercised in accordance with the constitutional limitation. So the chief executive could not refuse permission if to do so would impermissibly burden the implied freedom of political communication.
389 In Adelaide Corporation the Council was not required to consider the constitutional limitation when determining a permit application. It complied with the constitutional limit by acting within the limits of the power to govern the use of roads. Hayne J said at [140] – [141]:
It is necessary to construe the power to give consent in a manner that gives due weight to the text, subject-matter and context of the whole of the provision in which it is found. As has already been explained, those matters show unequivocally that the only purpose of the impugned provisions is to prevent obstruction of roads. It follows that the power to grant or withhold consent to engage in the prohibited activities must be administered by reference to that consideration and none other. On the proper construction of the impugned by-law, the concern of those who must decide whether to grant or withhold consent is confined to the practical question of whether the grant of permission will likely create an unacceptable obstruction of the road in question.
Once that is understood, it is readily evident that the impugned provisions are reasonably appropriate and adapted to prevent obstruction of roads in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. No consent of the council to engage in the activities regulated by the impugned provisions is needed when the specific exclusions in the impugned provisions about elections and referendums are engaged. And when those exclusions are not engaged, the only burden which the impugned provisions place on the freedom of political communication is to prohibit the use of roads for the purposes of preaching, canvassing or haranguing persons or giving out or distributing printed matter in circumstances where it is judged that to do so would likely create an unacceptable obstruction of a road. Any restriction on political communication is confined to where the communication can be made and is a necessary incident of maintaining unimpeded use of roads. The prohibition without permission which the impugned provisions effect adequately balances the competing interests in political communication and the reasonable use by others of a road.
[Emphasis added]
390 Crennan and Kiefel JJ at [219] with Bell J agreeing said:
Given that the discretion must be exercised conformably with the purposes of the by-law, it may be assumed that permission will be denied only where the activities in question cannot be accommodated having regard to the safety and convenience of road users.
Their Honours explained at [216] that, in Wotton, the Parole Board had a discretion to impose conditions on parole which were reasonably necessary. That imported the requirement of proportionality into the exercise. Their Honours said that the Court in Wotton considered that factor an important element in favour of validity. However, their Honours upheld the validity of the by-law in Adelaide Corporation even though there was no such limitation in the by-law. What was determinative was that the exercise of discretion was confined by the text, subject matter, and context of the power.
391 The power to grant or refuse a permit to camp in tents in the gardens or to bring specific items into the gardens must be exercised in accordance with the purpose of the power, namely, to protect preserve and maintain the gardens, and ensure accessibility to them in an equitable way. A permit may only be refused where the proposed camping in tents or the bringing in of specific items into the gardens would prejudice the protection, preservation and maintenance of the gardens or their accessibility on an equitable basis. The prohibitions reasonably balance the competing claims of freedom of political communication and the protection and regulation of the use of the gardens.
392 Further, in the present case, the Charter applies to the exercise of discretion by the Council to grant or refuse a permit to camp in tents or bringing in specified items in the gardens. It is unlawful for the Council to make that decision without giving proper consideration to the right of freedom of expression or in doing so to act incompatibly with the right to freedom of expression (s 38(1)). As the right to freedom of expression is subject to certain lawful restrictions, the Council is obliged in exercising the discretion to import "a requirement of proportionality into the exercise": see Adelaide Corporation at [216]. In this respect the exercise of discretion is constrained in a way similar to the constraint in Wotton on the valid power of the Parole Board to impose conditions.
393 It was common ground that any decision of the Council to refuse to issue a permit to camp in a tent in the gardens or to bring the specified items into the gardens is reviewable by the Supreme Court of Victoria under the Administrative Law Act. There was contention about whether the Council was obliged to give reasons for its decision.
394 This debate assumed that the availability of reasons impacted on the validity of the provisions. However, the assessment whether a 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 is not governed by rigid rules, but rather, involves the assessment of the effect of the laws on the freedom of political communication taking into account all the factors which bear on that relationship in particular circumstances. In some circumstances the availability of reasons upon which to found an application for judicial review may be indispensible to the conclusion that the laws are valid. In other circumstances, the availability of reasons may not be a determinative or even significant factor.
395 It is doubtful in the present case whether the availability of reasons is critical to the validity of the laws. Neither in Wotton nor Adelaide Corporation did the High Court give attention to the availability of reasons. The important factor was that there was an avenue of judicial scrutiny by way of review. That is also the important factor in the present case.
396 But in any event the argument should be accepted that the requirements of natural justice apply to the determination by the Council of an application for a permit, and hence under s 8 of the Administrative Law Act the Council is required to provide reasons for the refusal of a permit. It will be recalled that the obligation to provide reasons under s 8 is placed on a tribunal which is defined as a body which is required to observe the rules of natural justice.
397 The argument centred on whether the applicants have a sufficient interest in the exercise of the Council's discretion for the decision making process to attract the requirements of natural justice.
398 Although it is necessary to establish that the applicants have a sufficient interest in the subject matter of the decision to attract the requirements of natural justice, since at least Annetts the focus has been directed to the question whether the law provides a clear indication that the requirements of natural justice are excluded. As Mason J said in Kioa v West (1985) 159 CLR 550 at 585:
The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?
399 And Brennan J said at 612:
It is seldom possible to say that the legislature intends to exclude observance of the principles of natural justice in the exercise of a statutory power which is apt to affect individual interests and the more difficult and more frequently addressed question is what the principles of natural justice require in the particular circumstances.
400 The impugned Local Laws and the Regulations do not exclude the requirements of natural justice.
401 In this case the applicants focused on the nature of their interest in the permit decision and contended that all they had was a hope that the Council would exercise the power in their favour. When McHugh J in Haoucher at 681-2 excluded a mere hope from the interests which attract the requirements of natural justice, in the passage relied on by the applicants, he went on to state the contrasting situation:
To attract the operation of the rules of procedural fairness, there must be some undertaking or course of conduct acquiesced in by the decision-maker or something about the nature of the benefit or privilege which suggests that, in the absence of some special or unusual circumstance, the person concerned will obtain or continue to enjoy a benefit or privilege.
[Emphasis added]
402 Deane J in Haoucher said at 653 that the law was:
[M]oving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making.
This observation was adopted in Annetts in the joint judgment at 598. It gives some indication that the interests which might be prejudicially affected such as to attract the requirements of natural justice were not intended to be narrowly confined. Another consideration which bears on the nature of the interests which attract the requirements of natural justice is that they are not a rigid set of rules which apply automatically in the same way in all circumstances. The requirements are flexible and are moulded to meet the particular circumstances. They depend on what is a fair procedure in the context in which the law operates. Thus, the reasons which the Council might be obliged to provide for a decision to refuse a permit to a single person who wishes to camp in the gardens might be less elaborate then, say, the reasons which the Council might need to provide to a group who wishes to occupy the gardens with a substantial number of people for an extended period.
403 Indeed the Administrative Law Act recognises that such a decision may attract the rules of natural justice. Section 3 of the Administrative Law Act allows a person affected by "a decision of a tribunal" to apply for judicial review. Section 2 provides that a decision means:
[A] decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision.
[Emphasis added]
404 Tribunal is defined as a body which is required to observe the rules of natural justice. The Administrative Law Act therefore contemplates that some decisions to grant a privilege will be subject to the rules of natural justice.
405 People who apply for permits from the Council to camp in the gardens or to bring items into the gardens for the purpose of political communication have an interest in access to community assets for free political communication. Freedom of political communication is implied in the Constitution. The interest of a citizen to vindicate that freedom by applying for a permit is an interest sufficient to attract the requirements of natural justice. The Council must provide a fair process for such an application to be made.
406 Consequently, just as in Wotton and Adelaide Corporation the existence of a permission regime is a strong factor in support of the validity of the impugned provisions.
Less drastic means
407 Then, the applicants argued that the impugned provisions were not reasonably appropriate and adapted to preserve and protect the gardens, and regulate their use in an equitable manner without unduly burdening the freedom to communicate on political matters because the preservation, protection, and regulation could be achieved by less drastic measures.
408 In Coleman, McHugh J described the circumstances in which the availability of less drastic means to achieve the object of a law will be the basis for invalidating a legislative provision. His Honour said at [100] that the test gives legislative bodies a margin of choice, and that it does not call for nice judgments as to whether one course is slightly preferable to another. In Monis at [347] Crennan, Kiefel and Bell JJ said that the less drastic means must be equally practicable and available, and the alternative means must be obvious and compelling.
409 In Adelaide Corporation the High Court rejected the argument that the by-law was invalid because it could have preserved the freedom of political communication by excluding political communication from the restriction on the use of the roads. Crennan and Kiefel JJ with Bell J agreeing said that this underestimated the difficulty of defining what would qualify as political communication, and also that it was not equally practicable to allow people to conduct political speeches and distribute political material without restriction and yet secure the safe and convenient use of the roads.
410 The same reasoning applies in the present case. The applicants suggested that political communication could be exempted from the prohibition on camping in tents or placing or erecting things in the gardens. However, the difficulty of defining what constitutes political communication arises in the same way as it did in Adelaide Corporation.
411 A further alternative suggested by the applicants was for the provisions to prohibit camping or placing or erecting things in the gardens in specified circumstances where the camping would damage the gardens. However, the object of the laws is to preserve and protect the gardens and to regulate their use to ensure that there is equitable access to them. It would be a difficult task to capture in a provision all the circumstances necessary to restrict camping in the gardens. For instance, whether camping is permitted will depend on climatic conditions at the time, such as whether there was a drought and its effect on the ageing trees in the gardens. It will also depend on the maintenance program undertaken by the Council for the preservation of the gardens. Further, it will depend on the extent of the camping in tents which is sought. In view of the large variety of circumstances, some unpredictable, in which it may be necessary to limit camping in tents in the gardens, it is not practicable to devise provisions which specify the restrictions on camping in tents which might be required for the preservation and protection of the gardens and the regulation of their use so as to ensure equitable access to them. As DM Brown J said in Batty at [120], albeit in a different constitutional context and directed to policy rather than law:
… it strikes me as going beyond the bounds of constitutional reasonableness to require, as a matter of general principle, that a municipality should have to turn its mind to and craft detailed exemption policies for every possible contingency.
412 The alternative to a general prohibition on camping in tents or placing or erecting things coupled with a permission regime is not an obvious or compelling way to reconcile the purposes of the provisions with the need for freedom of political communication. It is not equally practicable to allow people to camp in tents or place or erect things in the gardens without restriction and at the same time secure the preservation and protection of the gardens and the regulation of their use so as to ensure equitable access to the gardens.
413 As has been explained, at the hearing the applicants relied heavily on Corneloup. The reversal of that judgment by the High Court on appeal, and the reasons for it, denied the applicants a substantial support for their case. The by-law in Corneloup was relevantly similar, particularly, to cl 2.11 of the Local Law. In order to distance the circumstances of this case from the circumstances in Corneloup after the successful appeal in that case, the applicants in their supplementary submissions focused the argument for invalidity on the enforcement provisions in the Local Law and specifically on cl 14.13.
414 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.
415 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.
416 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.
The submissions of the applicants
417 Central to the applicants' claims under the Charter were ss 38(1) and 38(2) which provide:
(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.
418 The human rights relied upon by the applicants are the right to freedom of expression, the right to peaceful assembly and the right to freedom of association. The right to freedom of expression, and certain permissible limitations on the right are provided for in s 15 as follows:
(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.
419 The rights of peaceful assembly and freedom of association are provided for in s 16 as follows:
(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.
420 There is no specific permissible limitation on the rights of peaceful assembly or freedom of association in s 16, but s 7(2) provides for reasonable limits on all human rights as follows:
(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.
421 The applicants argued that the making of cll 2.11, 4.6 and 14.13 of the Local Law was unlawful under s 38(1) of the Charter, and therefore invalid, because their making was incompatible with the right to freedom of expression, the right of peaceful assembly or right to freedom of association under ss 15 and 16 of the Charter respectively.
422 The applicants further contended that the actions of the officers of the Council taken under the impugned Local Laws were unlawful under s 38(1) because they were incompatible with those rights under the Charter.
423 In the course of closing submissions, the applicants applied to amend the Fourth Further Amended Originating Application to include a claim for declarations that the decisions made to take the enforcement actions were made without proper consideration of the Charter rights as required by s 38(1) of the Charter.
424 Although in some parts of the written submissions the applicants challenged the making of the Regulations on Charter grounds, they seem later to have accepted that the Regulations were made before the Charter commenced and hence the Charter did not govern the making of the Regulations.
425 The applicants contended that the Council is a public authority for the purposes of s 38(1) because under s 4(1)(e) a public authority includes a council within the meaning of the Local Government Act. The making of the impugned Local Laws was an act of the Council within the meaning of s 38(1). Consequently, the making of the impugned Local Laws had to be compatible with Charter rights.
426 Section 4(1) defines public authority by excluding:
(i) Parliament or a person exercising functions in connection with proceedings in Parliament; or
(j) a court or tribunal except when it is acting in an administrative capacity; or
(k) an entity declared by the regulations not to be a public authority for the purposes of this Charter.
The applicants submitted that if the by-law making function of the Council was to be excluded as an act outside s 38(1) then, in the context of s 4(1), that function would have been expressly excluded. The applicants also argued that the definition of public authority contemplates bodies exercising a legislative function. A public authority includes "an entity whose functions are or include functions of a public nature" (s 4(1)(c)), and factors which may be taken into account in determining if a function is of a public nature include that the function is conferred on the entity by or under a statutory provision (s 4(2)(a)), or the function is of a regulatory nature (s 4(2)(c)).
427 In relation to the procedural limb of s 38(1) which requires a public authority to give proper consideration to a relevant human right in making a decision, the applicants submitted that the evidence of Mr Schwarz demonstrated that there was a no tolerance policy to breaches of the impugned Local Laws. Whilst Mr Schwarz took into account such matters as the potential damage to the gardens, the rights of other users, and the visual impact of the protest, he did not take into account the protesters' Charter rights. Yet, under s 38(1), the Council was bound to take proper consideration of those rights into account when deciding to enforce the impugned Local Laws.
428 The applicants then argued that cl 2.11, cl 4.6 and cl 14.13 of the Local Law limited their Charter rights of freedom of expression, peaceful assembly and freedom of association. The limitation was described in the written submissions thus:
As the objects of the Local Law make clear, it is directed at controlling the use of public space. As explained above, cll 2.11, 4.6 and 14.13 of the Local Law, taken cumulatively, have the effect of allowing Council officers to stifle a protest without any opportunity for effective judicial review. In the usual course protests involve the use of political signs. Where a protest continues 24 hours a day for longer than a few days, it will necessarily involve basic amenities of life – a tent, food and first aid. But cl 14.13 of the Local Law empowers Council officers to issue notices to comply to require the removal of tents, signs and "other things", based only on a "reasonable suspicion". Failure to comply with such notices is an offence. As this proceeding has demonstrated, the practical reality is that, by the time there is any opportunity for judicial review, the service of the Notices to Comply and the engagement in the Enforcement Activities will have been effective in stifling the protest. Indeed, the Council has previously submitted in court that the Notices and Enforcement Activities are "exhausted", and cannot be the subject of judicial review.
429 The applicants next submitted that the limitations on their Charter rights were not demonstrably justified within the terms of s 7(2) of the Charter. In this regard the argument followed the contentions relied upon in relation to the implied freedom of political communication outlined in [0] in these reasons for judgment. A carve out could have been made for the rights of freedom of expression, peaceful assembly and freedom of association. This would not have been difficult to do and, hence, was a reasonably available less restrictive means to achieve the purpose of the provisions. Consequently, the provisions went beyond the reasonable limits on those rights (s 7(2)(e)). In relation to the right to freedom of expression, the provisions imposed limitations which were not reasonably necessary (s 15(3)). It follows that the making of cl 2.11, cl 4.6 and cl 14.13 was unlawful under s 38(1) and the provisions were invalid.
430 The applicants contended that they could seek relief under s 39(1) which provides:
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.
431 The applicants then contended that the impugned Local Laws were not saved by s 32(1) and (3) of the Charter which provide:
(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
…
(3) This section does not affect the validity of –
(a) an Act or provision of an Act that is incompatible with a human right; or
(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.
432 Section 32(3)(b) does not save these provisions because s 111 of the Local Government Act which gave the Council authority to make the Local Law did not expressly or by implication empower the Council to make laws incompatible with Charter rights.
433 If the impugned Local Laws which were used by Council officers were invalid, then the notices to comply issued, and the enforcement actions taken under them, were also unlawful. If the provisions were invalid, then the notices and actions taken infringed the applicants' rights to freedom of expression, peaceful assembly and freedom of association. They were not demonstrably justified within s 7(2) or, in respect of the restriction on the right to freedom of expression, not reasonably necessary within s 15(3).
The submissions of the Council
434 The Council argued that s 38(1) of the Charter does not permit a challenge to the making of subordinate legislation. The function of making subordinate legislation is not an act of a public authority within the meaning of s 38(1).
435 The Charter draws a distinction between legislative acts and administrative action. Only administrative acts are the subject of a claim of unlawfulness under s 38.
436 The validity of legislative acts is dealt with in Division 3 of Part 3 of the Charter. The interpretation of laws is dealt with in ss 32(1) and (3) which are set out in [431] of these reasons for judgment.
437 Where an issue of law arises as to whether a statutory provision complies with the Charter, that issue may be referred to the Supreme Court of Victoria. Section 36(2) provides that:
[I]f in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to the effect in accordance with this section.
438 Section 36(5) provides:
A declaration of inconsistent interpretation does not –
(a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or
(b) create in any person any legal right or give rise to any civil cause of action.
439 The Charter contemplates that an empowering Act may authorise the making of subordinate legislation that is not compatible with Charter rights (s 32(3)(b)). Under s 32(3)(b) such a subordinate instrument is valid. It was argued that s 38 cannot operate to render the making of the instrument unlawful. The Charter cannot render unlawful that which it expressly recognises as valid. The way s 38 is reconciled with the rest of the Charter is by construing s 38 as inapplicable to legislative acts.
440 Then, the Council argued that if the impugned Local Laws were valid under the Charter, the notices to comply and enforcement action taken under them were valid.
441 Finally, the Council contended that, if it were necessary for the impugned Local Laws to comply with the Charter, then the provisions were justified within the terms of s 7(2), and in relation to the right to freedom of expression, also within s 15(3), on the same analysis as applied to the implied freedom of political communication. The restrictions were subject to a permit system, any permit decision had to take into account the applicants' Charter rights, and such a decision was reviewable also by reference to the applicants' Charter rights.
The submissions of the Attorney-General
442 The written submissions of the Council and the Attorney-General raised essentially the same arguments, although the Attorney-General raised some significant additional issues in his written submissions. Dr Donaghue adopted the oral submissions made by Mr Niall, but elaborated some and provided some useful insight into others. As before, reference will be made only to additional matters.
443 In the written submissions it was observed that the right to freedom of expression in s 15 is broader than the implied freedom of political communication in several respects. Not only is it not limited to political communication, but it is an individual right. On the other hand, whilst it can be accepted that cl 4.6 might involve a form of expression by placing signs on public land, and hence fall within the Charter right to freedom of expression, cl 2.11 relating to camping in tents does not necessarily involve expressive conduct. Whether it does so is a matter of proof, and this aspect was addressed in the argument concerning the implied freedom of political communication.
444 Then, the written submissions contended that neither cl 2.11 nor cl 4.6 restricted the protesters' right of peaceful assembly. Clause 4.6 relates to the placement of advertising signs and other things and does not inhibit the protesters' ability to assemble. Clause 2.11, by requiring the protesters to apply for a permit, does not restrict the right to peacefully assemble. Further, the law does not prevent protesters assembling in public places but only from erecting tents and other structures.
445 In oral submissions, Dr Donaghue emphasised that the applicants' Charter arguments went only to the validity of the impugned Local Laws and not to the Regulations. The Regulations were made before the Charter was introduced and s 49(3) of the Charter provided that Div 4 of Part 3, in which one finds s 38, does not apply to acts or decisions made before the commencement of the Division.
446 Assuming, contrary to the Attorney-General's position, that s 38(1) is engaged at all, Dr Donaghue contested the applicants' argument that the Council carried the burden of proof of the justification of the restrictions on the Charter rights. Dr Donaghue contended that to establish that the act was unlawful under s 38, the applicants had to prove that the act in question was incompatible with human rights. To do this the applicants had to show not only that the right was restricted, but also that there was non-compliance with s 7(2). This would be critical if the Court came to consider each incident comprising the enforcement action because, so it was argued, the applicants provided no evidence in respect of each action to show that it was not justified.
447 The principle which applies was explained in, and illustrated by, Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19. Section 47(1) of the Motor Car Act 1951 (Vic) gave a person injured a right to sue the nominal defendant where the identity of the car which caused the injury could not be established, provided that the person gave notice of claim to the Minister as soon as possible after he knew that the car could not be identified. The High Court held that the burden of proving compliance lay on the plaintiff and said at 519:
When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts.
448 Dr Donaghue contended that the present case fell within the former category. The Charter provisions define the elements of unlawfulness and the circumstances that qualify or excuse non-compliance. Section 7(2) does not work by excusing unlawfulness. It defines circumstances where there is a breach. It was for the applicants to establish each of these elements.
449 Dr Donaghue opposed the proposed amendment to the Fourth Further Amended Originating Application sought by the applicants to add a claim that the officers of the Council failed to properly consider the Charter rights when taking action against the protesters. He said that this was a new case which would depend on further evidence from Council officers relating to each of the actions taken by them.
Consideration
450 The rights to freedom of expression, peaceful assembly and freedom of association are subject to such reasonable limits as can be demonstrably justified in a free and democratic society as provided for in s 7(2) and, in respect of the freedom of expression, subject to lawful restrictions reasonably necessary as provided for in 15(3). The permitted restrictions are not relevantly different from the permitted limitations on the implied freedom of political communication. These reasons for judgment have earlier concluded that the impugned Local Laws do not impermissibly burden the implied freedom of political communication. The same analysis applies to the Charter rights of freedom of expression, peaceful assembly and freedom of association, so that the limits are reasonable limits within the terms of ss 7(2) and 15(3) of the Charter.
451 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.
452 The proposed amendments to the Fourth Further Amended Originating Application which sought to add [2(c)] and [6(c)] allege that the decision to issue and act on the notices to comply and to engage in the enforcement activities were made without proper consideration of the Charter rights contrary to the requirements of s 38(1) of the Charter.
453 The application to amend was made late in the applicants' final oral submissions. The respondents had no notice of the application prior to this time. It raised new legal and factual issues. To the extent that it raised new factual issues the respondents would need the opportunity to call further evidence. It would not conduce to the efficient management of the proceeding in the interests of justice to allow a further evidentiary issue to be commenced almost at the end of the proceeding and after the evidentiary cases had been closed. In view of the conclusion that the impugned Local Laws were not incompatible with the Charter rights and not unlawful, the applicants are not prejudiced by not being permitted to amend the application.
The lawfulness of the action taken by the police
454 In view of the determination that the matter is not to continue as a representative proceeding and that the applicants who themselves were not arrested do not have standing to challenge the arrests, it is not necessary to consider the lawfulness of the actions of the police. However in deference to the helpful arguments put by Mr Holdenson, it is appropriate to indicate my view on the issues raised. These views may be relevant to the question of costs.
455 In [6B(c)] of the Fourth Further Amended Originating Application the applicants sought a declaration that s 458(1) of the Crimes Act did not authorise the officers of Victoria Police to apprehend protesters in reliance on s 224(8) of the Local Government Act. The arrests were made in the course of the enforcement of the notices to comply, and in the course of the enforcement of the Regulations on 6 December 2011 when the second applicant's tent dress was removed, and on various occasions when the protesters were directed to remove Occupy Melbourne banners.
456 Section 458(1) relevantly provided:
Any person, whether a member of the police force or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates' Court to be dealt with according to law or deliver to a member of the police force to be so taken any person –
(a) he finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely -
(i) to ensure the attendance of the offender before a court of competent jurisdiction;
(ii) to preserve public order;
(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or
(iv) for the safety or welfare of members of the public or of the offender;
457 Section 224(8) of the Local Government Act provided:
A person is guilty of an offence and liable to a fine not exceeding 60 penalty units if he or she –
…
(b) obstructs or hinders an authorised officer while performing his or her duty
458 The claim for relief against the Chief Commissioner led him to file the affidavit sworn by Superintendent O'Neill which chronicled in detail the actions taken by police throughout the protests. The affidavit of Superintendent O'Neill revealed that 13 protesters had been arrested at various times during the protest, but neither of the applicants was arrested.
459 The claim for relief also led the Chief Commissioner to make comprehensive and cogent written and oral submissions which included contentions that:
The applicants had no standing to argue the lawfulness of the arrests because they had not themselves been arrested.
The applicants had no community of interest with people who had been arrested, and hence this issue was not appropriate for a representative action.
The impugned Local Laws and the impugned Regulations were valid
These arguments have already been canvassed in these reasons for judgment.
460 The Chief Commissioner also argued that even if the impugned Local Laws or impugned Regulations were invalid, the arrests were lawful by operation of s 461(1) and s 462 of the Crimes Act. This argument which has not previously been addressed in these reasons will now be considered.
461 Section 461(1) of the Crimes Act provided:
Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 or section 459 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.
462 Section 462 of the Crimes Act provided:
In this Act the expression finds committing and any derivative thereof extends to the case of a person found doing any act or so behaving or conducting himself or in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence.
463 By the time the applicants came to reply, the only argument pressed which was solely directed to the lawfulness of the actions of the police depended on the Court holding that the impugned Local Laws and the impugned Regulations were invalid. The applicants contended that if such laws were held to be invalid then it followed that the laws did not exist. As a result, the arresting officer could not have formed a belief on reasonable grounds that the protester was guilty of an offence. For this approach, the applicants relied on the judgment of McHugh J in Coleman. In relation to a provision relevantly the same as s 458 his Honour said at [138] and [140]:
138 In Hazelton v Potter , Griffith CJ said:
The reasonableness of the defendant's belief, if he honestly entertained it, is not to be inquired into, except as an element in determining the honesty ... Nor is a mistake in the construction of the Statute fatal to the defendant ... But there must be some Statute in force under which the act complained of could under some circumstances have been lawful. A mistake by the defendant as to the existence of a law cannot be brought within these principles.
…
140 Section 35(1) of the Police Powers Act was not identical with the enactment considered in Hazelton. But in my opinion the principle on which that case was decided applies to the present case. Hazelton holds that a person cannot intend to execute a statutory instrument if the instrument does not exist. A fortiori, a person cannot have a reasonable suspicion that an offence has been committed under an enactment that does not exist. It is not reasonable to believe or suspect that a law exists when it does not.
[Emphasis added]
464 In Coleman there was no provision corresponding to s 461(1) of the Crimes Act. On its face that section may have the effect of making the arrest lawful even where no offence existed.
465 On the other hand, such a provision may itself be unconstitutional. McHugh J said at [142]:
The constitutional prohibition or immunity extends to invalidating not only a law directly infringing the prohibition or immunity but also any consequential law that seeks to validate conduct that occurred under the first law.
In the course of his oral reply, Mr Merkel appeared to stray into this area of constitutional invalidity. The respondents objected that there had been no s 78B notice served in relation to a constitutional challenge to s 461 of the Crimes Act. Mr Merkel explained that it was not intended to make such a challenge. In a sense this left the issue incompletely addressed.
466 In the event, nothing turns on that circumstance because the applicants' case against the lawfulness of the police action is unsustainable. Their case depends on the invalidity of the impugned Local Laws and the impugned Regulations. These reasons for judgment have explained that those provisions are valid. Consequently, the arrests were also valid.
Conclusion
467 For these reasons, there will be a declaration that the notice to comply issued under the impugned Local Laws to the second applicant on 18 November 2011 and the two notices to comply issued to the second applicant on 28 November 2011 are invalid. There will also be orders that the proceeding not continue as a representative proceeding, that the application to amend the Fourth Further Amended Originating Application by adding [2(c)] and [6(c)] be refused and that the application be otherwise dismissed.
468 As the question of costs was not argued, that question is reserved.
| I certify that the preceding four hundred and sixty eight (468) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. |
Associate:
