Becker v City of Onkaparinga

[2010] SASCFC 41

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

BECKER & ANOR v CITY OF ONKAPARINGA & ANOR

[2010] SASCFC 41

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Bleby)

14 October 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - WHEN CONSENT REQUIRED - MEANING OF DEVELOPMENT

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING OFFENCES - CHANGE OF USE WITHOUT CONSENT

Appeal from the Environment Resources and Development Court – appellants found to have breached s 32, Development Act 1993 in displaying messages on signs without development approval – Environment Court ordered the signs be removed pursuant to s 85 – whether signs reasonably incidental to residential use of land – whether display of signs constituted a change of use in land – whether signs constituted the display of an advertisement.

Held: the display of the signs not reasonably incidental to residential use of land and constituted a change of use – signs properly constituted advertisements requiring development approval.

CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION - RIGHTS AND FREEDOMS IMPLIED IN COMMONWEALTH CONSTITUTION - FREEDOM OF POLITICAL COMMUNICATION

Whether s 85, Development Act in its terms, operation and effect impermissibly interfered with the implied freedom of political communication – consideration and application of the test in Lange v Australian Broadcasting Corporation – consideration of the applicability of Canadian cases – whether signs constituted political communication – whether that communication was burdened – whether burden was reasonably appropriate and adapted to a legitimate end

Held: the order of the Judge pursuant to s 85 effectively burdened political communication – the burden imposed was reasonably appropriate and adapted to the legitimate end of ensuring compliance with s 32 – appeal dismissed.

Development Act 1993 (SA) s 4, s 32, s 74, s 85; Development Regulations 1993 (SA) Sch 2 cl 7, Sch 3 cl 5; Development Regulations 2008 (SA) Sch 2 cl 8, Sch 3 cl 1, 5; Local Government Act 1999 (SA) s 254, s 258, Ch 11 Part 2 Division 6; Acts Interpretation Act 1915 (SA) s 14; Local Government (Elections) Act 1999 (SA); Electoral Act 1985 (SA); Constitution (Cth); Broadcasting Services Act 1992 (Cth) s 12, s 131-136; Telecommunications Act 1997 (Cth) s 42, referred to.
Lange v Australian Broadcasting Corporation (1996) 189 CLR 520, applied.
R v Guignard (2002) 209 DLR (4th) 549; Commonwealth v Bank of New South Wales [1950] AC 235; Cole v Whitfield (1988) 165 CLR 360, distinguished.
Levy v State of Victoria (1997) 189 CLR 579, discussed.
Becker v City of Onkaparinga (2005) 242 LSJS 418; Corporation of the City of Noarlunga v Usher (1981) 29 SASR 109; Corporation of the City of Noarlunga v Fraser (1986) 42 SASR 450; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; McGinty v Western Australia (1996) 186 CLR 140; Cunliffe v Commonwealth (1994) 182 CLR 272; Coleman v Power (2004) 220 CLR 1; Roberts v Bass (2002) 212 CLR 1; Mulholland v Australian Electoral Commissioner (2004) 220 CLR 181; Roach v Electoral Commission (2007) 233 CLR 162, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"advertisement"

BECKER & ANOR v CITY OF ONKAPARINGA & ANOR
[2010] SASCFC 41

Full Court:       Doyle CJ, Duggan and Bleby JJ

1. DOYLE CJ.          I would dismiss the appeal.  I agree with the reasons of Bleby J for so deciding.       

2. DUGGAN J.         I would dismiss the appeal.  I agree with the reasons prepared by Bleby J.

   BLEBY J.

   Introduction

3. This is an appeal from a decision of a Judge of the Environment, Resources and Development Court (“the Environment Court”).[1] The appellants, Mr Becker and Ms Inglis, were found to have breached s 32 of the Development Act 1993 (SA) (“the Act”) by changing the use of a piece of land that they own jointly, and thereby undertaking development, without development approval. The change of use was the commencement of a continuing display of written messages to the public from their land. A further breach found was that they undertook an act or activity declared by regulation to constitute development without development approval. The act or activity was the commencement of the display of an advertisement.

   [1]    City of Onkaparinga v Becker [2010] SAERDC 1.

4. The appellants displayed messages, many of which were political in content, on boards, blackboards and shade cloth on the land without development approval. Because they were found to have breached s 32 of the Act by displaying these messages, the Judge ordered that the appellants remove all signs displayed on the land. The Judge also ordered that the appellants cease using the land for the display of signs or messages to the public, and that the appellants be restrained from using the land for the display of such signs or messages to the public without development approval.

5. By their notice of appeal the appellants contend that Judge erred in a number of respects. First, the appellants submit that the Judge erred in finding that their use of the land to display political and other messages on the blackboards and shade cloth was not reasonably incidental to their residential use of the land. Secondly, they submit that she erred in finding that the display of the blackboards and shade cloth with messages written on them had a detrimental impact on the amenity of a part of the locality near to the land. This point was abandoned on the hearing of the appeal. Thirdly, the appellants allege that the Judge erred in failing to find that their activities on the land fell within the definition of “home activity” in clause 5(2) of Schedule 3 of the Development Regulations 1993 (SA).  This point was also abandoned at the hearing. Fourthly, they allege that the Judge erred in finding that the appellants’ conduct amounted to the display of “advertisements” or “signs” within the meaning of clause 7 of Schedule 2 of the Development Regulations 1993, even though the messages displayed concerned government and political matters. Fifthly, they allege that the Judge erred in failing to apply the powers of the Court under s 85 of the Act in a manner consistent with the implied constitutional freedom of political communication. A suggestion that s 85 of the Act itself infringed the implied constitutional freedom was not pursued on the appeal.

6. The Judge in her reasons and the grounds of the appeal refer to the Development Regulations 1993. Those regulations were replaced by the Development Regulations 2008.  The conduct of the appellants and the conduct of the proceedings covered both sets of regulations.  So far as is material to this action both sets of regulations, save for some renumbering, are in identical terms.  However, as the actual orders made by the Judge have continuing effect and refer to the 2008 Regulations, I will refer only to those regulations and will refer to them as “the 2008 Regulations”.  

   The Facts

7. Mr Becker and Ms Inglis jointly own a piece of land located in Port Noarlunga South.  The suburb of Port Noarlunga South is part of the City of Onkaparinga (“the Council”), the first respondent. 

8. The appellants purchased the land and the dwelling located on it in early 2002.  They have been living together in the dwelling on the land since that time.  Not long after they began residing in the dwelling, the appellants started displaying messages on boards, blackboards and shade cloth on the land.  These were positioned so that the messages could be seen by road users.  They have continued to display messages that are visible from the road.

9. The land fronts onto the western side of Commercial Road.  It has a frontage of 19.2m.  Commercial Road runs in a north-south direction.  It is a two‑lane, dual carriageway road that has a bicycle lane and a parking strip on each side.  It apparently carries high volumes of traffic.   The land on the western side of Commercial Road, where the appellants’ land is located, is residential in nature.  It comprises allotments with detached dwellings which front onto Commercial Road.  The land on the eastern side of Commercial Road, opposite the appellants’ land comprises a large, flat area of vacant land.  The appellants’ dwelling is set back about 9 metres from the western side of Commercial Road.  It is in this space, between the dwelling and the western side of Commercial Road, that the messages were displayed.  No fence separates the land and the western side of Commercial Road. 

10. The messages were written on large blackboards, cardboard and shade cloth.  The messages on the blackboards and pieces of cardboard were written in white or coloured chalk.  The messages on the shade cloth were either painted or chalked on.  The Judge found that:[2]

    …Some of the shade cloth is attached to the upper part of the verandah of the dwelling so as to partially shade the verandah, and was in existence when the [appellants] purchased the property.  In about 2004, the [appellants] made shade cloth panels to fit between the verandah posts in the lower part of the verandah and installed them so as to provide complete shade for the east facing verandah.  In addition, separate pieces of shade cloth each containing a message have been displayed on the subject land like banners, suspended between trees growing on the subject land or a tree and a verandah post of the dwelling.

    [2] [2010] SAERDC 1, [14].

11. Overall, the Judge found the boards and banners to be “generally large, with some being substantial.”[3] It is clear that the messages were visible from the road. 

    [3] Ibid [18].

12. The messages related mainly to political and government matters, although in October 2007 some boards displayed messages promoting certain commercial operations.  As the Judge found:[4]

    …Generally, the messages seem to have been communications or comments by the respondents concerning individual politicians at all levels of government, the local council, political and government matters generally.  Some of the signs have promoted particular causes (“save Aldinga scrub and public space”) and others promoted the respondent Mr Becker’s political ambitions. 

    [4] Ibid [15].

13. The content of the messages changed from time to time.  Further, the blackboards and cardboard were not fixed in place and were moved about.  However, at any one time quite a number of messages were displayed on either blackboards or cardboard in addition to the messages on the verandah shade cloth and, sometimes, the shade cloth banners.  For the purpose of simplicity, I will refer to the blackboards, cardboard and shade cloth collectively as the signs. 

14. The messages displayed were often expressed in crude or derisive language.  The appellants explained that their reason for displaying the messages on the signs was to promote discussion within the community about government or political issues that are of “very real concern” to members of the community.  They believe that most political discussion takes place in an artificial environment and that, as such, the opinions expressed are not conveyed “adequately or effectively to ordinary Australian people”.  For this reason, they believe that it was necessary and appropriate to use the language that they did. 

15. The Council became aware that the appellants were displaying messages on signs on the land in about June 2002. Between June 2002 and December 2003 the Council made a number of requests to the respondents to cease displaying signs on the land. In early 2004 the Council issued an order to Mr Becker and Ms Inglis pursuant to s 254 of the Local Government Act 1999 (SA). In February 2004 that order was withdrawn and a fresh order was issued under that section. The order prohibited Mr Becker from placing any hoardings, blackboards, signs, structures or similar objects on the land so as to be visible from Commercial Road. Mr Becker did not comply with that order.

16. In May 2004 the Council commenced criminal proceedings against Mr Becker under s 258 of the Local Government Act 1999 (SA) for contravention of the order issued pursuant to s 254. Mr Becker was convicted on each of the five counts of contravention of the order. He appealed to the Full Court of the Supreme Court. The appeal was allowed and each of the convictions was set aside.[5]  In August 2006 these proceedings were commenced.  Following this, the respondents made an application for development approval to allow them to display the signs on the land.  The Council refused to grant development approval. 

    [5]    Becker v City of Onkaparinga [2005] SASC 428; (2005) 242 LSJS 418.

17. On 18 January 2010 the Judge found that the respondents had contravened the Act by undertaking acts or activities not exempted from development without development approval. The respondents appeal against that decision and the orders made by the Judge on 2 February 2010.

    The Judge’s Findings

18. In relation to the issues which remain in dispute on this appeal, the Judge found that the display of the signs was not part of the appellants’ normal residential use of their home. From this finding it followed that the appellants had changed the use of the land, which in turn meant that they had undertaken “development” within the meaning of s 4 of the Act. Because they had undertaken this development without approval, the Judge found that the appellants had breached s 32 of the Act.

19. The Judge also found that the meaning of “sign” in the defined term “advertisement” in s 4 of the Act encompasses the signs containing the messages displayed on the land by the appellants. According to the Judge, this meant that pursuant to clause 8 of Schedule 2 of the 2008 Regulations, the commencement of the display of any sign, regardless of its content, is development which requires consent. Clause 1 of Schedule 3 of the 2008 Regulations did not operate to exempt the display of the signs from the meaning of “development” in the Act. The fact that signs were largely political in nature did not bring them within clause 1(f) of Schedule 3 as the Judge found that the signs generally had a total area of greater than 2m². It followed that each time the appellants had commenced to display a sign, but not when they changed the contents of a sign, they had commenced development for the purposes of the Act.

20. Finally, the Judge also rejected the argument put on behalf of the appellants at trial that s 85 of the Act was invalid insofar as it infringed on their implied constitutional freedom of political communication. The Judge found that the control of development is in the public interest for reasons of amenity and safety, that the object of the Act was to enable the proper, orderly and efficient planning and development in South Australia, and that therefore s 85 of the Act is reasonably appropriate and adapted to serve a legitimate end. On appeal, the appellants modified their argument on this point. Rather than seeking to challenge the validity of s 85 of the Act, the appellants’ sought to argue that the power conferred by s 85 was limited by the constitutional freedom. In other words, the Court, in exercising its power under s 85 of the Act must do so in a manner that is consistent with the implied freedom of political communication. According to the appellants, the orders made by the Judge impermissibly restrict the appellants’ ability to express their political views.

    Whether there was a change of use of the land

21. Section 4 of the Act defines development as including:

    …

    (b)     a change in the use of land;

    … but does not include an act or activity that is excluded by regulation from the ambit of this definition;

22. It was common ground that, prior to the appellants occupying the land, the land had been used for residential use only.  No signs had been displayed by the previous owners or occupiers.  The regular and continuous display of signs of the size and number in question from the property was therefore a change of use in the land.

23. The appellants argued that the display of the signs was excluded from the definition of development by Regulation 7 of the 2008 Regulations, which excludes from the definition of development an act or activity specified in Schedule 3. Schedule 3, clause 5(1) of the 2008 Regulations relevantly provides:

    5—Use of land and buildings

    (1) The use of land and the use of any lawfully-erected building which is ordinarily regarded as (and is in fact) reasonably incidental to any particular use of the land and the building, or the land or the building, and which is for the substantial benefit of the person or persons who, in any capacity, are making use of the land and the building, or the land or the building.

24. From that it can be seen that there are three criteria which must be met.  The use must be “ordinarily regarded” as reasonably incidental to any particular use of the land and/or building; it must in fact be reasonably incidental to such use; and it must be for the substantial benefit of the person or persons making use of the land and/or building.

25. The Environment Court Judge had little difficulty in concluding that the display of the signs was for the substantial benefit of the appellants as occupiers of the land.  I would not disagree.  The appellants have views on government and political matters that they want to express.  The signs were their chosen means of expressing those views so that passing members of the public would be aware of them.  That was to the benefit of the appellants.

26. The appellants argued that the public expression of views on government and political and other like matters of community concern is a normal and ordinary activity of an articulate citizen or occupier of residential premises.  So be it.  What the Environment Court was concerned with was not the fact of such articulation but the manner of doing so and whether the manner chosen by the appellants was ordinarily regarded as reasonably incidental to the residential use of the land or the building on it or both.

27. Wells J in Corporation of the City of Noarlunga v Usher[6] said of the phrase “ordinarily regarded… as reasonably incidental” that it “emphasises the character of the res, rather that its incidence within the community”.  That means that one must pose the question whether the display of material of this nature, from a residential property is ordinarily regarded as reasonably incidental to the use of residential land.  Obviously, many signs of an informative nature will be so regarded, such as the name of a house, and a land agent’s “For Sale” sign.  Such signs are directly related to and therefore incidental to the use of the land and building as a residence.  Other signs of a temporary or seasonal nature, such as an illuminated Christmas message, may also be so regarded.

    [6] (1981) 29 SASR 109, 116.

28. There are cases which accept that the pursuit of what has been described as a hobby, such as amateur radio transmission involving the use of an external antenna[7] and the construction of a steel hulled yacht in the back yard of a house[8] are regarded as reasonable incidental to the use of residential land.  But just because an activity may be regarded as a hobby by the appellants does not mean that it is, by that fact, a permitted incidental use.

    [7]    Corporation of The City of Noarlunga v Usher (1981) 29 SASR 109.

    [8]    Corporation of The City of Noarlunga v Fraser (1986) 42 SASR 450.

1. What is relevant to the assessment in this case is not only the nature of the messages being conveyed by the appellants but the fact that the messages were being conveyed by means of signs on residential property, the content of the signs, the nature of the signs, their size, number and method of display and their visual impact.

2. The Judge was correct in concluding that the display of signs of this nature and character is not ordinarily regarded as being reasonably incidental to the residential use of land.  The Judge had also found, which is not now disputed by the appellants, that the signs had a detrimental impact on the character and amenity of part of the locality.  Activities which, because of their nature and effect, have that type of impact will seldom be regarded as being reasonably incidental to the residential use of land in a locality which comprises predominantly detached dwellings on individual allotments and which locality is predominantly residential in character.

3. The activity did not come within the exclusion specified in item 5(1) of Schedule 3 of the 2008 Regulations. It therefore amounted to a change of use for which development approval was required.

   Whether the signs constituted the display of an advertisement or sign

4. Section 4 of the Act defines development as also including:

   (h)An act or activity in relation to land (other than an act or activity that constitutes the continuation of an existing use of land) declared by regulation to constitute development,

   … but does not include an act or activity that is excluded by regulation from the ambit of this definition;

5. Regulation 6 of the 2008 Regulations provides that an act or activity in relation to land specified in Schedule 2 is declared to constitute development. Schedule 2 specifies the following as constituting development:

   8    Other than within the City of Adelaide, the commencement of the display of an advertisement, but not including a change made to the contents of an existing advertisement if the advertisement area is not increased.

6. The expression “advertisement” is defined in the Act,[9] and therefore for the purposes of the 2008 Regulations,[10] as meaning “an advertisement or sign that is visible from a street, road or public place or by passengers carried on any form of public transport”.

   [9] Section 4.

   [10] Acts Interpretation Act 1915 (SA), s 14.

7. The question is therefore whether any or each of the signs in question was “an advertisement or sign”.  There was no question but they were visible from a street, road or public place, namely Commercial Road, Port Noarlunga South. 

8. The appellants submitted that the expression “advertisement” is to be construed narrowly as a display with some commercial purpose.  I disagree.  The ordinary concept of advertisement is not limited to commercial advertising.  It is commonplace to encounter political advertising, religious advertising and advertising by particular interest groups of their social or political views.  All such will be encompassed by the common understanding of “advertisement” that is, the display of a message to the public.

9. The breadth of that expression is recognised by s 74 of the Act which deals with the regulation of advertisements. Subsection (1) enables the Development Assessment Commission or a council to order “the advertiser or the owner or occupier of the land” on which an advertisement or advertising hoarding is situated, in certain circumstances, to remove or obliterate the advertisement or to remove the hoarding. Subsection (2) provides for a number of exclusions from the operation of subs (1). They include an advertisement the display of which is authorised under the Local Government Act 1999 (SA), under the Local Government (Elections) Act 1999 (SA) or the Electoral Act 1985 (SA). Chapter 11, Part 2, Division 6 of the Local Government Act enables the regulation by a council of moveable signs on a road.  The Division is not limited to commercial advertising signs but to any signs.  The signs authorised under the Local Government (Elections) Act and the Electoral Act are not commercial advertising signs. The very fact that those exceptions exist in s 74(2) is a clear indication that the expression “advertisement” as defined in the Act does not have the limited meaning intended for by the appellants, but rather that it has an expansive and all-encompassing meaning from which exclusions are necessary for the purpose of s 74(1).

10. The appellants submitted that their narrow interpretation of the word gained support from the definition in s 4 of the Act of “advertiser” which “in relation to an advertisement, means the person whose goods or services are advertised in the advertisement”. However, such support cannot be gained merely from the definition of the word “advertiser”. If it is to be found at all it will be found from the context in which the word is used. The only occasion on which the word “advertiser” is used is in s 74(1) of the Act which empowers the Development Assessment Commission or a council to serve notice on the advertiser or the owner or occupier of land on which an advertisement or hoarding is situated to obliterate the advertisement or remove the hoarding. The inclusion in the class of persons who may be required so to act of the owner or occupier of land is to cover the situation where the advertiser cannot be identified from the advertisement or where there is no advertiser, as defined, evident from the advertisement. Reference to the definition of “advertiser” therefore does not assist the appellants.

11. The word “sign” used in the definition of “advertisement” is not defined in the Act. The fact that that word is used as part of an inclusive definition along with the word “advertisement” in its ordinary meaning means that the definition of “advertisement” has the widest possible coverage. The appellants attempted to confine the meaning of the word “sign” by reference to the use of the word in the 2008 Regulations. That word cannot be limited in its meaning by purported limitations applicable to the same word contained in some parts of the 2008 Regulations.

12. Schedule 2, clause 9 of the 2008 Regulations includes the display of certain signs within the City of Adelaide as constituting development for the purposes of the Act. It applies only to the City of Adelaide, and the clause itself contains its own expansive definition of “sign” with certain exclusions. The definition is, however, limited to the purposes of that item. It can have no bearing on the interpretation of the word “sign” in the Development Act.

13. Schedule 3, clause 1 of the 2008 Regulations excludes from the definition of development the commencement of an advertising display containing an advertisement that comes within the number of categories then listed. It was not suggested that any of the signs in question came within any of those categories. The signs were therefore not excluded from the definition of “development” by virtue of the exclusion contained in the definition of development.

14. The signs in question were plainly designed to capture public attention.  They were clearly visible from the street.  That was the purpose of their display.  The appellants therefore undertook the “development” on each occasion that they commenced the display of a new advertisement or sign.  As they did not have development approval they committed an offence on each such occasion.

    The implied freedom of political communication

15. The above conclusions are subject to one possible overriding defence argued by the appellants. They submitted that the Judge erred in not reading down the operation of s 85 so that it did not impermissibly interfere with the implied freedom of political communication. Implicit in this submission is the contention that s 85 is capable of being read as permitting an impermissible interference with the implied freedom. For the reasons which immediately follow, I consider the terms, operation and effect of s 85 do not impermissibly infringe the implied freedom of communication on matters of government and political concern. Consequently, the question of reading down the section does not arise.

16. The implied freedom of communication on matters of government and political concern arises as a necessary incident of the system of representative and responsible government established by the terms and structure of the Constitution.[11]  The freedom is not absolute.  It exists and operates only to the extent that which is necessary for the effective operation of the system of representative and responsible government established by the Constitution. [12]  As Dawson J said of the Constitution in Levy v State of Victoria:

    Sections 7 and 24, together with ss 1, 8, 13, 16, 25, 28 and 30, provide the minimum requirements of a system of representative government but do not purport to go significantly further.[13]

    His Honour concluded that “[w]hat is clear is that the freedom does not rest upon an implication drawn from any underlying or overarching concept of representative government”.[14]  It is only the system that is established by the Constitution that requires protection and consequently the content of the freedom will be necessarily limited to that particular system.

    [11]   Lange v Australian Broadcasting Corporation (1996) 189 CLR 520, 559.

    [12]   Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 51, 76-7, 94-5; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 142-4, 159, 169, 217-8; Theophanous v Herald & Weekly Times (1994) 182 CLR 104, 126; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, 235; McGinty v Western Australia (1996) 186 CLR 140, 182; Cunliffe v Commonwealth (1994) 182 CLR 272, 336-7; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561; Levy v State of Victoria (1997) 189 CLR 579, 606, 617, 624, 644; Coleman v Power [2004] HCA 39, [89], [195], [292], [320]; (2004) 220 CLR 1, 48, 77, 110, 121

    [13]   Levy v State of Victoria (1997) 189 CLR 579, 606.

    [14] Ibid 607.

17. Unlike that which is found in the United States Constitution or the Canadian Charter of Rights and Freedoms (“the Charter”), the freedom does not confer personal rights upon individuals.[15]  Rather, the implication arising from the Constitution operates as a limitation on executive and legislative power.  As McHugh J said in Levy v State of Victoria:[16]

    The freedom protected by the Constitution is not … a freedom to communicate.  It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution.

    [Original emphasis]

    [15]   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560; Levy v State of Victoria (1997) 189 CLR 579, 625; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 48; Roberts v Bass [2002] HCA 57, [65]; (2002) 212 CLR 1, 26; Coleman v Power [2004] HCA 39, [89]; (2004) 220 CLR 1, 48.

    [16]   Levy v State of Victoria (1997) 189 CLR 579, 622.

18. It is this very fundamental difference which has given rise to significant caution being expressed by the High Court in utilising jurisprudence from the United States and Canada.

    The test in Lange

19. The test for determining whether an impugned law infringes the implied freedom of political communication is that propounded in the unanimous decision of Lange v Australian Broadcasting Corporation,[17] as modified by four judges in Coleman v Power:[18]

    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 [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.[19]

    [17] (1997) 189 CLR 520.

    [18] [2004] HCA 39; (2004) 220 CLR 1.

    [19]   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567. In Coleman v Power, McHugh J at [92]-[93], 50, Gummow and Hayne agreeing at [196], 78, Kirby J agreeing at [211], 82, suggested the words “in a manner” to replace “the fulfilment of”.

20. Counsel for the appellant submitted that the second limb of the Lange test, that which is primarily concerned with the phrase “reasonably appropriate and adapted, involved a “proportionality” test or “weighing up” exercise, in a similar approach to that taken by the Canadian courts.  Particular attention was drawn to the comments of Toohey J in McGinty v Western Australia.[20]  His Honour contrasted the reliance made by counsel in that case on decisions of the United States Supreme Court with those of the Canadian courts.  His Honour considered the latter to be more relevant because of the common English history shared between Australia and Canada.[21]  However his Honour only considered the usefulness of Canadian jurisprudence with respect to interpreting the concept of a right to vote and the equality of the vote.  It was in this context that his Honour considered the Canadian concept of a right to vote as being fundamental to the idea of a representative democracy.  Dawson J likewise considered the United States historical context to be inapt as the “democratic traditions of both Canada and Australia find their origins in the English model rather than in rebellion against it as is the case in the United States.”[22]  Their Honours’ reliance on Canadian jurisprudence was limited to the extent of determining whether a right to vote was implied within the text and structure of the Constitution and is not an endorsement on the usefulness of Canadian authorities in general.

    [20] (1996) 186 CLR 140.

    [21] Ibid 202-3.

    [22] Ibid 187.

21. The freedom in the Australian context arises as an implication derived from the text and structure of the Constitution.  In contrast, the freedom of communication in the Canadian context is a substantive personal right vested in individuals.[23]  Article 1 of the Charter provides for the relevant test for whether a law infringes a freedom:

    The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

    In applying article 1 of the Charter, the Supreme Court of Canada has held that this test requires the relevant government authority to demonstrate the following:

    The goal of the impugned law must be pressing and substantial.  The law must be proportionate to the goal in the sense of furthering the goal, being carefully tailored to avoid excessive impairment of the right, and productive of benefits that outweigh the detriment to freedom of expression.[24]

    The right in the Canadian context not only derives from a fundamentally different source, the test established by the Charter is markedly different from that encapsulated by the High Court in Lange.

    [23]   Article 2(b) relevantly provides “Everyone has the following fundamental freedoms: … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

    [24]   R v Guignard (2002) 209 DLR (4^th) 549, 561-2.

22. It is true that the High Court refers to a test of proportionality.  In Lange, in formulating the “reasonably appropriate and adapted” test above, the Court said:

    Others have favoured different expressions, including proportionality.  In the context of the questions raised by the case stated, there is no need to distinguish these concepts.[25]

    [25]   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 562.

23. In Coleman v Power Kirby J was particularly critical of the “reasonably appropriate and adapted” test:[26]

    I will never cease to protest at this ungainly phrase “appropriate and adapted”.  Just imagine what non lawyers must make of it?  It involves a ritual incantation, devoid of clear meaning. … It is an unhelpful formula for distinguishing permissible from impermissible or inadequate constitutional connection.  Indeed, it is misleading in so far as it suggests that a court is concerned with the “appropriateness” of legislation.  That is entirely a matter for the legislature, so long as the law is within power.  It is for this reason that I prefer the alternative formula of connection – of “proportionality”.

    [Footnotes omitted]

    Nevertheless, his Honour considered that it was not the occasion to resolve the debate, and proceeded on the basis that there was little difference between the two phrases.

    [26]   Coleman v Power [2004] HCA 39, [234]-[235]; (2004) 220 CLR 1, 90.

24. It is one thing to say that the second limb of the Lange test is better served by the “proportionality” test, or indeed that “reasonably appropriate and adapted” is equivalent to “proportionality”.  It is quite another to say that this is equivalent to the concept of proportionality considered in the Canadian context.  The Canadian concept of “weighing up” is inconsistent with the approach taken by the High Court.  As McHugh J said in Coleman v Power, it is not a question of balancing a legislative or executive end against the freedom:[27]

    The question is not one of weight or balance but whether the federal, State or territorial power is so framed that it impairs or tends to impair the effective operation of the constitutional system of representative and responsible government by impermissibly burdening communications on political or governmental matters.

    Similarly, Brennan CJ in Levy v State of Victoria considered an analogy made with respect to the United States freedom of speech inapt:[28]

    The analogy is attractive unless the different criterion of validity under our Constitution is steadily kept in mind. Under our Constitution, the courts do not assume the power to determine that some more limited restriction than that imposed by an impugned law could suffice to achieve a legitimate purpose. The courts acknowledge the law-maker’s power to determine the sufficiency of the means of achieving the legitimate purpose, reserving only a jurisdiction to determine whether the means adopted could reasonably be considered to be appropriate and adapted to the fulfilment of the purpose.

    [Footnotes omitted]

    The Canadian concept of proportionality expressly considers a weighing up of whether an impugned law is proportionate in achieving a particular goal ensuring that there is a minimum impairment of the particular right.  However, in Australia, it is not open for a court to consider whether some more limited restriction, would be more appropriate.[29]  Rather, the court must consider whether the impugned law is reasonably appropriate and adapted to achieving a legitimate end.  The phrase “reasonably appropriate and adapted” does not equate to “essential” or “unavoidable”.[30]  As the High Court has repeatedly confirmed, the Canadian concept of proportionality comes from a fundamentally different context and it is unhelpful and incorrect to draw any reliance from it or the authorities that discuss it.[31]

    [27] Ibid 49.

    [28]   Levy v Victoria (1997) 189 CLR 579, 598.

    [29]   Coleman v Power[2004] HCA 39, [39]; (2004) 220 CLR 1, 31; Rann v Olsen [2000] SASC 83, [184]; (2000) 76 SASR 450, 483.

    [30]   Mullholland v Australian Electoral Commissioner [2004] HCA 41, [39]; (2004) 220 CLR 181, 199-200, Gleeson CJ; Roach v Electoral Commission [2007] HCA 43, [85]; (2007) 233 CLR 162, 199, Gummow, Kirby and Crennan JJ.

    [31]   Mulholland v Australian Electoral Commission[2004] HCA 41, [25], [325], [347]; (2004) 220 CLR 181, 194, 295, 301; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 105, 125, 157-163, 189-91.

25. Counsel for the appellant also referred to decisions of the High Court and the House of Lords which interpreted the guarantee contained in s 92 of the Constitution, in particular for support of the proposition that a total prohibition is not valid regulation in this context. Leaving aside the fact that this case does not deal with a total prohibition for the moment, the guarantee in s 92 is materially different from the implied freedom and has been met with a significantly different interpretative approach. As Dawson J in Levy said:[32]

    The Constitution does not erect a guarantee of freedom of communication in the same way as it erects a guarantee of freedom of interstate trade under s 92. There the freedom is expressed to be absolute and, faced with the impossibility of absolute freedom in that context, the Court is required to balance that freedom against those other interests in an ordered society which must be recognised by the law.

    [32]   Levyv State of Victoria (1997) 189 CLR 579, 607.

1. It is that “balancing” approach that led their Lordships in Commonwealth v Bank of New South Wales to consider that “simple prohibition is not regulation”.[33]  Further, the decision of the House of Lords in 1950 must be read in light of the High Court’s decision in Cole v Whitfield[34] and subsequent cases, which substantially reformulated the test for whether a law infringed s 92. I do not consider that recourse can be had with respect to the cases discussing s 92 to assist in determining whether s 85 infringes the implied freedom. Section 92 establishes an explicit guarantee which, as the High Court authorities point out, necessarily merits a very different interpretive approach from a principle that is implied from the structure and text of the Constitution. It is therefore incorrect to conflate consideration of authorities that discuss s 92 with those that discuss the implied freedom.

   [33]   Commonwealth v Bank of New South Wales [1950] AC 235, 311.

   [34] (1988) 165 CLR 360.

   Does the law effectively burden political communication?

2. Section 85 of the Act provides for the procedure for which breaches of the Act may be enforced including, relevantly for present purposes, a breach of s 32 requiring that developments obtain approval under the Act. In the present case the Judge made an order pursuant to s 85(6)(c) which relevantly provides that the Court, if satisfied after a hearing that a respondent has breached the Act, may, by order “require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach”.

3. No challenge has been made with respect to the substantive provision that gives rise to the Court’s jurisdiction to make such an order, namely s 32 of the Act. Consequently no argument was put that a requirement, if it was a requirement, that the respondents seek development approval for the erecting of the signs was an impermissible burden on the freedom. Rather the appellants’ argument was that the effect of the orders which the Judge made pursuant to s 85 in response to a breach infringed the freedom. This presents rather a curious situation whereby the enforcement, or “mechanism”, provision is under attack rather than the substantive law which provides the basis for the offence. It is akin to challenging the powers vested in a Court to impose a sentence while ignoring the provision which establishes the crime. This is of significance in determining what needs to be considered with respect to the test enunciated in Lange. 

4. Even if the refusal to grant development approval in respect of the signs were under attack, it would be difficult to see that s 32 and the associated provisions of Part 4, Division 1 of the Act would not meet the second limb of the Lange test. The legitimate end for which those provisions are reasonably appropriate and adapted is to ensure that the display of all signs and advertisements, whether or not they are about government or political matters, is done in a manner which complies with desired objectives and principles of providing for proper, orderly and efficient planning and development in the State. As can be seen from the provisions of Part 4, Division 1 of the Act and the several Development Plans to which they give effect, that process involves consideration of a wide range of matters including visual amenity and public safety.[35]

   [35]   See Coleman v Power [2004] HCA 39, [32], [296]; (2004) 220 CLR 1, 32, 111.

5. I turn now to the test in Lange, in which the first question to be asked is “does the law effectively burden freedom of communication about government or political matters either in its term, operation or effect?”

6. Counsel for the respondents properly conceded that the signs involved communication about government and political matters as contemplated by the freedom.  This concession was in light of the fact that the various messages related to issues relating to Federal, State and local government, to which the High Court has considered the freedom extends.[36]  The messages concern various matters from the conduct of public officials, councils and politicians, to reform with respect to child sex offences and to matters involving the Federal Government’s international relations record.  The tone of these messages is often quite florid and emotional, however this cannot be said to detract in any way from their nature as communication on political matters.  The freedom “protects false, unreasoned and emotional communications as well as true, reasoned and detached communications”.[37]

   [36]   Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 75; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 216; Stephens v Western Australian Newspapers Ltd (1994) 182 CLR 211, 232, 257; Langev Australian Broadcasting Corporation (1997) 189 CLR 520, 571-2; Coleman v Power [2004] HCA 39, [80], [229]-[232]; (2004) 220 CLR 1, 45, 88-9.

   [37]   Levyv State of Victoria (1997) 189 CLR 579, 623. See also Coleman v Power [2004] HCA 39, [197]; (2004) 220 CLR 1, 78.

7. Similarly it was common ground that the effect of the order was to burden political communications. Whilst it cannot be said that s 85 is designed to burden political communications, the effect of the Judge’s order is that the appellants can no longer lawfully erect the signs that they previously had erected, at least in the manner in which they had previously done so.

8. Consequently the appellants satisfy the first limb of Lange test, namely that the effect of the order of the Judge pursuant to s 85 effectively burdens communication about government and political matters.

   Is the law reasonably appropriate and adapted to serve a legitimate end?

9. Turning to the second limb, it is important first to ascertain the “legitimate end” that the operation of s 85 serves. As mentioned above, s 85 is in the nature of an enforcement provision, vesting the Environment Court with various powers with respect to breaches of the Act. The relevant breach in this case is a breach of s 32 providing that no development may be undertaken unless the development is an approved development. Proceedings under s 85 can be brought by “any person”.[38]  Sub-section (6) provides:

   [38] Section 85(1).

   (6)     If‑

   (a)     after hearing‑

   (i)    the applicant and the respondent; and

   (ii)any other person who has, in the opinion of the Court, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings,

   the Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act or a repealed Act; or

   (b)     the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of the opportunity to be heard,

   the Court may, by order, exercise any of the following powers:

   (c)     require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach; 

   (d)    require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court; 

   (e)     cancel or vary any development authorisation (other than an authorisation granted by the Governor); 

   (f)     require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for or towards those costs or expenses; 

   (g)     if the Court considers it appropriate to do so, require the respondent to pay an amount, determined by the Court, in the nature of exemplary damages—

   (i)if the applicant is a council and the Crown has not become a party to the proceedings—to the council;

   (ii)     in any other case—into the General Revenue of the State. 

10. The legitimate end which s 85 serves is the compliance with various sections of the Act. In the present circumstances, as the Judge noted,[39] s 85 empowers the Environment Court to restrain development undertaken contrary to the Act. It is not expressly directed at political communication. Rather, it is directed at ensuring general compliance with the provisions of the Act, and providing remedies should a breach be properly established.

    [39]   City of Onkaparinga v Becker [2010] SAERDC 1, [99].

11. As I have noted earlier, there is no challenge to s 32 or the action taken under it. Consequently it is not necessary to consider in resolving this appeal, whether a requirement that all development be approved under the Act or any particular approval process itself, could properly be considered “reasonably appropriate and adapted”. Rather it is for this Court to consider whether the terms, operation and effect of s 85 are “reasonably appropriate and adapted” in enforcing the requirement of, in this case, s 32 that no development be undertaken without approval.

12. Sub-section (6) provides for a hearing on the merits of the application whereby the entity accused of breaching the Act is afforded a right to be heard. The Environment Court must evaluate whether a breach is established on the balance of probabilities. If the Court considers that a breach has occurred, various orders can be made. In the present case, the appellants were ordered to remove all signs displayed on the land by a certain date, were restrained from erecting further such signs and were ordered to pay the Council’s costs of the proceedings.

13. The consequence of the Court’s orders is simply that the breach of s 32 should no longer occur. No pecuniary penalties were imposed, and no criminal liability ensued. Whilst the Environment Court has the power to award damages if it considers it appropriate to do so, none were awarded in this case. There is no suggestion that the appellants are precluded from seeking the relevant development approval for the signs that they were ordered to remove. Indeed they did so in this case after the proceedings were commenced. The application was rejected by the Council. There is no challenge to that rejection. Had they not made the application when they did, there is nothing that would have prevented the application from being made after the making of the orders by the Environment Court.

14. It is difficult to see how this process could not be said to be reasonably appropriate and adapted to serving the object, namely compliance with s 32. Section 85 is unremarkable in its terms and the order of the Judge imposes no heavier burden on the appellants than to cease breaching the terms of the Act by removing the relevant signs within a specified period of time, to cease erecting any new signs, and to pay the costs of the Council’s application. As noted earlier, the prohibition imposed on the appellants is by no means absolute. They were not precluded, by the order, from seeking the relevant development approval for the signs if they had not already done so. An analogy can readily be made with respect to any number of regulatory schemes, whereby a person must obtain a permit or licence to undertake a particular activity, without which the activity is considered unlawful.[40] Indeed, some such schemes go far further than that prescribed in s 85, where criminal penalties for breaches are imposed.[41]

    [40]   See, eg, Broadcasting Services Act 1992 (Cth) s 12; Telecommunications Act 1997 (Cth) s 42. See the discussion of Mason CJ in Australian Capital Television v Commonwealth (1992) 177 CLR 106, 143.

    [41]   See, eg Broadcasting Services Act 1992 (Cth) ss 131-136; Telecommunications Act 1997 (Cth) s 42(5).

15. Counsel for the appellant submitted that the proper approach under s 85 in the present context was to either make no order as it would impair the freedom, or alternatively make some order regulating the number or size of the signs. I consider both of these submissions to be without merit. To expect the Environment Court, under s 85, to make an order allowing signs of a limited number or size would effectively involve the Court sanctioning a breach of the Act, and would circumvent the entire purpose of s 32 and the relevant approval processes under the Act. Similarly, whilst it may be said that the Judge in her discretion could have made no order, I do not consider that such an outcome properly achieves the object and purpose of s 85, as such an outcome would effectively ignore, or even excuse, a breach of s 32.

16. In Levy v State of Victoria the regulation sought to be impugned was one which prohibited persons other than the holders of a valid game licences from entering into a permitted hunting area at specified times.  The appellant’s purpose in entering at the prohibited time was to protest against Victorian hunting laws.  The submission was put on behalf of the appellant in that case that the impugned regulation should have implemented a scheme whereby public safety is promoted, but at the same time leaving unlicensed persons free to protest in the hunting areas.[42]  The submission put by the appellants in this case, accepting that the conduct was unlawful, would be the equivalent to allowing Mr Levy to enter into the hunting area notwithstanding that the action constituted an offence.  It is incumbent on courts to determine whether the making of certain conduct unlawful would be consistent with the implied freedom.  However a consideration of the implied freedom does not require a court to consider whether unlawful conduct, otherwise validly rendered unlawful, should nonetheless be allowed.  This is entirely inconsistent with the origins of the freedom as a limitation on executive and legislative power, rather than that of a substantive personal right.

    [42]   Levyv State of Victoria (1997) 189 CLR 579, 627.

17. Finally I deal with the appellants’ submission that the effect of the order is to preclude the appellant’s ability to communicate with respect to government or political matters.  The appellants submitted that the only way they could readily communicate their messages was through the use of the signs erected on their property.  However, as Brennan CJ noted in Levy v State of Victoria:[43]

    A law which is appropriate and adapted to the fulfilment of that legitimate purpose is not invalidated by limitations of legislative power implied from the terms and structure of the Constitution merely because an opportunity to discuss matters of government or politics is thereby precluded.

    [43] Ibid 597.

18. As was the case in Levy, the prohibition in the present case is not a blanket prohibition.[44]  The appellants can avail themselves of many other forms of communication in many different forums.  Further, the prohibition is limited in that it only applies to signs without development approval.

    [44] See ibid 648.

19. It follows that the appellants are unable to satisfy the second limb of the Lange test, and their argument based on the implied constitutional freedom must fail.

    Conclusion

20. For the foregoing reasons I would dismiss the appeal.