FEDERAL COURT OF AUSTRALIA

O’Flaherty v City of Sydney Council [2014] FCAFC 56

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First and Second Respondents.

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

REASONS FOR JUDGMENT

the court

1    This is an appeal by the Appellant from a decision of a single Judge of this Court on 15 April 2013, dismissing the application against a failure to comply with the terms of a notice prohibiting camping or staying overnight in Martin Place in Sydney.

2    For some considerable time Martin Place was occupied by persons participating in a protest known as “Occupy Sydney”. The purpose of the protest was to demonstrate against social and economic inequality and corruption of political systems. One of those persons participating in the protest was the present Appellant, Mr Eamonn O’Flaherty. He was charged with the offence of failing to comply with the terms of a notice given by the City of Sydney prohibiting camping or staying overnight in Martin Place. The notice had been given under s 632(2) of the Local Government Act 1993 (NSW) (the “Local Government Act”)

3    Mr O’Flaherty contended that it was beyond the power of the City of Sydney to issue the notice because it impermissibly infringed freedom of communication about government and political matters and/or his freedom of association. That contention was rejected by the primary Judge: O’Flaherty v City of Sydney Council [2013] FCA 344, (2013) 210 FCR 484.

4    He now appeals.

5    After the Court heard submissions in the appeal, the New South Wales Court of Appeal refused leave to appeal in a case where a “homeless person” was unsuccessfully prosecuted for sleeping overnight in Martin Place: Director of Public Prosecutions v Priestley [2014] NSWCA 25. That decision was, obviously enough, not referred to in submissions before this Court. The issues there presented for resolution, in any event, were issues very different from the arguments to be resolved by this Court.

6    The appeal is to be dismissed.

Freedom of communication of government or political matters

7    The Constitutional freedom invoked by Mr O’Flaherty is that which is derived from primarily ss 7 and 24 of the Commonwealth Constitution. Section 7 provides for the composition of the Senate and provides for the election of senators “directly chosen by the people…”. Section 24 is the counterpart provision in respect to the House of Representatives.

8    In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559 Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ there observed:

Freedom of communication

Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be “directly chosen by the people” of the Commonwealth and the States, respectively…

Their Honours continued:

That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power: (1997) 189 CLR 520 at 560.

The test to be applied to determine whether a law infringes the Constitutional implication of freedom of communication was thereafter formulated as follows:

The test for determining whether a law infringes the constitutional implication

When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively “the system of government prescribed by the Constitution”). If the first question is answered “yes” and the second is answered “no”, the law is invalid. In ACTV, for example, a majority of this Court held that a law seriously impeding discussion during the course of a federal election was invalid because there were other less drastic means by which the objectives of the law could be achieved. And the common law rules, as they have traditionally been understood, must be examined by reference to the same considerations. If it is necessary, they must be developed to ensure that the protection given to personal reputation does not unnecessarily or unreasonably impair the freedom of communication about government and political matters which the Constitution requires: (1997) 189 CLR 520 at 567-568.

The reference to “ACTV” was a reference to Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

9    The second limb of this test was further addressed in Coleman v Power [2004] HCA 39, (2003) 220 CLR 1. McHugh J there referred to Lange and to the subsequent decision in Levy v Victoria (1997) 189 CLR 579 and continued:

[95]    The true test was clearly expressed by Kirby J in his judgment in Levy v Victoria. After discussing a number of tests that have been used to determine whether a law is consistent with the freedom, his Honour said:

“A universally accepted criterion is elusive. In Australia, without the express conferral of rights which individuals may enforce, it is necessary to come back to the rather more restricted question. This is: does the law which is impugned have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides?”

[96]    In my view, this formulation accurately states the second limb of the Lange test. It emphasises that a law that burdens communications on political or governmental matters in the sense I have explained will be invalid unless it seeks to achieve an end in a manner that is consistent with the system of representative government enshrined in the Constitution: (2004) 220 CLR 1 at 51.

Gummow and Hayne JJ agreed with these observations of McHugh J: [2004] HCA 39 at [196], (2004) 220 CLR 1 at 77 - 78. Kirby J also expressed agreement with the “slight rewording” of the second limb proposed by McHugh J: [2004] HCA 39 at [211], (2004) 220 CLR 1 at 82. The “accepted doctrine” of the Court is to be found in Lange as modified by Coleman v Power: Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 at [131], (2013) 295 ALR 197 at 235 per Hayne J.

10    The Constitutional freedom, however, remains a “freedom from laws” and is not a “freedom to communicate”: Levy v Victoria (1996–1997) 189 CLR 579 at 622 per McHugh J. Unlike the Constitution of the United States, the Australian Constitution does not create a personal right to communicate ideas.

An effective burden – the first limb

11    It was common ground on the appeal that there was an “effective burden” on the Constitutionally guaranteed freedom of communication.

12    The primary Judge concluded that by placing “limits on the duration of the communication in the places covered by the notices” the “prohibition effectively burdened their constitutional freedom”: [2013] FCA 344 at [48], (2013) 210 FCR 484 at 495. There was no challenge to this conclusion by either the City of Sydney or by the State of New South Wales.

13    The satisfaction of the first limb of the test propounded in Lange was thus not put in issue on appeal.

14    But the nature and extent of the “burden” which had been imposed assumed continuing relevance. It was only by identifying the “burden” which had been imposed that an answer could be given to the second limb – it was only by identifying the purpose sought to be achieved by the prohibition and the nature and extent of the “burden” that content could be given to whether “the law was reasonably appropriate and adapted to serve” a legitimate end or a law “preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government…”.

15    The primary Judge concluded that:

    the “prohibition serves the legitimate ends of maintaining public health, safety and amenity in a high use public area, and preserving the ability of all members of the public to use the area”: [2013] FCA 344 at [51], (2013) 210 FCR 484 at 495; and that

    the “effect of the law on freedom of political communication [was] incidental” and that it was “slight”: [2013] FCA 344 at [64], (2013) 210 FCR 484 at 498.

No error is exposed by either of these conclusions. The prohibition did not directly inhibit government or political communications. And, although laws which directly inhibit such communications will be much more difficult to justify than laws which do so indirectly, there is no support for the proposition that an indirect burden can never infringe the Constitutional requirement: The Age Company Ltd v Liu [2013] NSWCA 26 at [93], (2013) 82 NSWLR 268 at 289 per Bathurst CJ (Beazley and McColl JJA agreeing).

16    On behalf of Mr O’Flaherty it was sought to be contended that the object and purpose of s 632 of the Local Government Act was confined to preserving and protecting the “amenity” of the area but stopped short – for some unexplained reason – from preserving or protecting public health. The forensic objective of Mr O’Flaherty, presumably, was to minimise the legislative object and purpose of s 632 with a view to thereby strengthening an argument that the prohibition on camping or staying overnight in Martine Place was not “reasonably appropriate”. Whether there is in fact such a clear division of legislative objectives may be doubted. But, in any event, the object and purpose of s 632, it is concluded, was correctly identified by the primary Judge.

17    Some reservation may be expressed as to whether the primary Judge was correct in characterising the prohibition as “incidental” or “slight”. Indeed, there is a need to be cautious in the use of such “labels”: cf. Monis v The Queen [2013] HCA 4, (2013) 87 ALJR 340. Hayne J there relevantly observed:

[124]    It is trite to say that the more extensive the burden on political communication the more difficult it will be to justify the impugned law. And where a law which effectively burdens political communication is valid because it meets the two Lange conditions, it may very well be right to describe the law as imposing only a small burden on political communication. But it by no means follows that consideration of the validity of an impugned law can take a shortcut to the conclusion by use of the label “little” (or some equivalent) as a description of the burden. That sort of approach is evident in many of the submissions made in this court. For example, South Australia submitted that the “effectiveness” of any burden “involves an evaluative exercise requiring consideration of all relevant factors”. To approach the matter in this way, and to conclude that the burden is “little”, may seek to replicate but serves only to mask (if not wholly ignore) all of the analytical work that is to be done in answering the second Lange question. Yet the strength of the principles established in Lange, and of proportionality reasoning more generally, is the transparency that they bring to decision-making. That transparency must not be obscured by resort to labels: (2013) 87 ALJR 340 at 370.

But the characterisation in the present appeal of the prohibition being “incidental” or “slight” matters not. What is of importance is the identification by the primary Judge of those factors which give content to the prohibition worked by s 632 and the notices and in particular:

    the fact that s 632 and the notices are “facially neutral” and do not, for example, seek to prohibit the communication of “government or political matters”. As noted by Heydon J in Wotton v Queensland [2012] HCA 2 at [30], (2012) 246 CLR 1 at 16 there is a distinction between laws which “incidentally restrict political communication, and laws which prohibit or regulate communications which are inherently political or a necessary ingredient of political communications”. His Honour continued on to observe that the “burden upon communication is more readily seen to satisfy the second Lange question if the law is of the former rather than the latter description”;

    the fact that the prohibition is directed to conduct and not words, although it must necessarily be recognised that non-verbal conduct engaged in for the purpose of communicating government or political matter is equally protected by the Constitutional freedom as the “chief vehicle by which ideas about government and politics are communicated”, namely speech: Levy v Victoria (1997) 189 CLR at 594 per Brennan CJ;

    the fact that the prohibition only applies “in a discrete area” and (inter alia) “would not prevent people from coming and going in Martin Place to express their views, even in the middle of the night if they so wished, provided that once they did so they departed”: [2013] FCA 344 at [67], (2013) 210 FCR 484 at 498 per Katzmann J; and

    the fact that occupation of the Martin Place site overnight affected the ability of the City of Sydney to clean and maintain the site: [2013] FCA 344 at [74], (2013) 210 FCR 484 at 499.

Reasonably appropriate – the second limb

18    Notwithstanding the range of issues canvassed in the written submissions of the parties, the substance of the appeal – with respect – is to be found in the manner in which the second of the questions posed by Lange (as modified) was to be answered.

19    The primary Judge concluded that the prohibition was “reasonably appropriate and adapted to serve the legitimate ends of protecting public health, safety and amenity and preserving the ability of all members of the public to use the area”: [2013] FCA 344 at [84], (2013) 210 FCR 484 at 501.

20    The “relative succinctness” of the words used in Lange, it has since been said, “should not mislead” and require “a series of different enquiries”: Monis v The Queen [2013] HCA 4, (2013) 295 ALR 259 at 329. Crennan, Kiefel and Bell JJ there observed:

[279]    The relative succinctness with which the test is stated in Lange should not mislead. What has been referred to as the second limb of the Lange test, read with other statements in Lange, may be seen to involve a series of different enquiries.

[280]    The first enquiry concerns the relationship between a valid legislative object and the means adopted for its attainment. The latter must be “reasonably appropriate and adapted”, or proportionate, to that object…

[281]    Even if the ends and means of the impugned legislation are in proportion, the second limb of the Lange test requires that they each be tested for compatibility with the constitutional imperative of the maintenance of the system of representative government. It will be a rare case where a conclusion of outright incompatibility will be reached and, where it is, it will be by reference to the object of the legislation. In most cases, the question of incompatibility will involve examining the extent of the effect of the legislative restrictions upon the communications the subject of the implied freedom which supports the maintenance of that system of government.

[282]    What is not clearly expressed in the second limb of the test is what appeared in the earlier statement relating to the two conditions for validity, namely that the law must also be proportionate, or reasonably appropriate and adapted, to the first object of maintaining representative government. This enquiry 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…

[283]    These tests or enquiries involve proportionality analysis. It was said on more than one occasion in Lange that there was no difference between the concept reflected in the words “reasonably appropriate and adapted” and the test of proportionality…: (2013) 295 ALR 259 at 329.

Hayne J had there earlier expressed the task to be undertaken as follows:

[144]    If a law which effectively burdens political communication pursues a legitimate end, the second Lange question asks whether the means chosen to achieve that end are reasonably appropriate and adapted to achieving it in a manner compatible with the system of representative and responsible government. This question requires the Court to make a judgment. The judgment may be assisted by adopting the distinctive tripartite analysis that has found favour in other legal systems. On this analysis, separate consideration is given to questions of suitability, necessity and strict proportionality.

[145]    But whatever structure is used for the analysis, it is necessary to consider the legal and practical effect of the impugned law. It is necessary to identify how the law curtails or burdens political communication on the one hand and how it relates to what has been identified as the law’s legitimate end on the other. In undertaking that comparison it is essential to recognise that the legitimacy of the object or end of the impugned law is identified by considering the compatibility of that object or end with the system of representative and responsible government and the freedom of political communication which is its indispensable incident.

[146]    It bears repeating that, because “legitimate” must be understood in this way, the comparison that is to be made between the effect of the impugned law upon the freedom to communicate on government and political matters and the law’s connection with an identified end proceeds from a common point of reference: the constitutionally prescribed system of government and the freedom of political communication which is its indispensable incident. The comparison to be made does not call for the balancing of incommensurables or comparing of the incomparable, as would be the case if the comparison was between the law’s effect on freedom of political communication and the law’s effect on some public interest or purpose wholly unconnected with the implied freedom: (2013) 295 ALR 259 at 298 - 299.

21    When considering whether “there were other, less drastic means by which the objectives of the law could have been achieved” ((1997) 189 CLR 520 at 568, as suggested by Lange, supra) or when considering the “availability of an alternative mode of regulation” an analogy may be made to “alternative modes or regulation … to determine the existence of a prohibited purpose of discriminating against freedom of interstate trade and commerce, contrary to s 92 of the Constitution”: Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 at [65], (2013) 295 ALR 197 at 220 per French CJ.

22    The two principal touchstones by reference to which it was submitted on behalf of Mr O’Flaherty that “there were clearly other, less drastic means by which the objectives of the law could have been achieved” were that s 632 (or the notice) could have either:

    conferred a discretion; or

    provided for the granting of permission

to camp or stay overnight. The total prohibition on camping or staying overnight in Martin Place, it was said, was “disproportionate” given the ability to preserve or protect the legislative objectives by conferring a discretion to permit camping or staying overnight or by the granting of permissions to occupy the site (for example) for a specified period of time.

23    The same arguments were apparently advanced before the primary Judge. The arguments did not there meet with any success. Nor do they have any greater success on appeal.

24    It may be accepted that a notice issued under s 632(2) of the Local Government Act may well (for example) have permitted camping or staying overnight in Martin Place for a limited period or prohibited such camping or staying overnight on specified days. Had the decision been theirs to make, some judges may be more or less inclined to have themselves issued such a notice. But the power to issue such a notice is not entrusted to a Judge of this or another Court. Nor is power conferred upon a judge to invalidate a prohibition merely because the prohibition may not accord with his or her own view. The power to issue a notice is vested (in this case) in the City of Sydney. “Judicial review of legislative action, for the purpose of deciding whether it conforms to the limitations on power imposed by the Constitution, does not involve the substitution of the opinions of judges for those of the legislators upon contestable issues of policy”: Mulholland v Australian Electoral Commission [2004] HCA 41 at [32], (2004) 220 CLR 181 at 197 per Gleeson CJ.

25    Although it remains the task of the Court to scrutinise the prohibition imposed and to undertake the analysis required by Lange, weight must be given in the present proceeding to the legislative judgment exercised when s 632 was enacted and when vesting in a Local Council the power to issue a notice such as that erected in Martin Place: cf. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 144 per Mason CJ. When considering restrictions on broadcasting imposed by amendments to the Broadcasting Act 1942 (Cth), Mason CJ there observed:

In weighing the respective interests involved and in assessing the necessity for the restriction imposed, the Court will give weight to the legislative judgment on these issues. But, in the ultimate analysis, it is for the Court to determine whether the constitutional guarantee has been infringed in a given case. And the Court must scrutinize with scrupulous care restrictions affecting free communication in the conduct of elections for political office for it is in that area that the guarantee fulfils its primary purpose.

The task of a Court is not to form a view as to whether one legislative means of achieving a statutory objective is “slightly preferable” to another; its task is confined to determining whether the chosen legislative scheme is “unreasonably greater than is achievable by other means”: Coleman v Power [2004] HCA 39, (2004) 220 CLR 1. McHugh J there said:

[100]    … 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. Whether the burden leaves the communication free is, of course, a matter of judgment. But there is nothing novel about courts making judgments when they are asked to apply a principle or rule of law. Much of the daily work of courts requires them to make judgments as to whether a particular set of facts or circumstances is or is not within a rule or principle of law: (2004) 220 CLR 1 at 53.

26    The prohibition in the present case, it is concluded, was “reasonably appropriate and adapted to serve” the legislative objectives of s 632. Although some other form of notice may well have been issued:

    the prohibition in fact imposed by s 632 and the notices in respect to camping or staying overnight at Martin Place

cannot be said to be not a reasonably appropriate course in circumstances where:

    the protestors retained the freedom to otherwise occupy that site or other public sites within the City of Sydney and thereby communicate their views

The prohibition on camping or staying overnight in Martin Place left the protestors free to otherwise communicate their views.

27    The primary Judge was correct, with respect, to reach the same conclusion.

Political association

28    There is no “free-standing” right of association to be implied from the Constitution: Mulholland v Australian Electoral Commission [2004] HCA 41 at [148], (2004) 220 CLR 181 at 234 per Gummow and Hayne JJ. Any freedom of association however “to some degree may be a corollary of the freedom of communication in Lange v Australian Broadcasting Corporation”: id. See also: Wainohu v New South Wales [2011] HCA 24 at [112], (2011) 243 CLR 181 at 230 per Gummow, Hayne, Crennan and Bell JJ.

29    For the same reasons which dictate a conclusion that the prohibition in the present appeal does not infringe any Constitutional right to freedom of communication, any separate argument founded upon a right to freedom of association is equally damned to failure.

30    The primary Judge, again, was correct in so concluding: [2013] FCA 344 at [85] to [87], (2013) 210 FCR 484 at 502.

CONCLUSIONS

31    The appeal is to be dismissed.

32    The challenge to the order as to costs made by the primary Judge, together with other Grounds of Appeal, were abandoned by Senior Counsel for Mr O’Flaherty. Nor was there any disagreement on appeal with the usual order as to costs being made, namely that costs should follow the event.

33    The Appellant is to pay the costs of the First and Second Respondent.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First and Second Respondents.

Associate:

Dated:    8 May 2014