Benz v Baldock
[2024] ACTSC 399
•16 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Benz v Baldock |
Citation: | [2024] ACTSC 399 |
Hearing Date: | 26 August 2024 |
Submissions last received: | 2 October 2024 |
Decision Date: | 16 December 2024 |
Before: | McWilliam J |
Decision: | (1) The appeal is allowed. (2) The verdict delivered on 6 November 2023 is set aside and in lieu thereof the charge of unauthorised camping on unleased National Land, contrary to s 68 of the Australian Capital Territory National Land (Unleased) Ordinance 2022 (Cth) is dismissed. |
Catchwords: | APPEAL – CRIMINAL – unauthorised camping on unleased National Land – whether person sleeping in car constituted camping – whether carpark was on National Land and subject to Australian Capital Territory National Land (Unleased) Ordinance 2022 – whether Ordinance properly authorised STATUTORY CONSTRUCTION – words and phrases – “camping” – use of dictionaries – meaning of establish a camp or construct a shelter |
Legislation Cited: | Aboriginal Land Grant (Jervis Bay Territory) By Laws 2005 (Cth) Australian Capital Territory (Planning and Land Management) Act 1988 s 27 Australian Capital Territory (Self-Government) Act 1988 (Cth) ss 3, 28 Australian Capital Territory National Land (Road Transport) 2014 (Cth) ss 7, 37(3) Australian Capital Territory National Land (Unleased) Ordinance 2022 (Cth) ss 6, 5, 7, 9, 37, 68 Commonwealth Constitution s 80 Crimes Act 1914 (Cth) ss 4G, 4H Human Rights Act 2004 (ACT) ss 13, 28 Legislation Act 2003 (Cth) ss 10(2)(b), 15B, 15G, 15K, 56(1), Magistrates Court Act 1930 (ACT) ss 208, 214 Seat of Government (Administration) Act 1910 (Cth) s 12 Territory Plan 2008 (ACT) (repealed) |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49 Bloomfield v Brown [2003] ACTSC 43 Dixon v Todd (1904) 1 CLR 320 Hope v Bathurst City Council (1980) 144 CLR 1 House of Peace Pty Ltd & Anor v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 Kingswell v The Queen (1985) 159 CLR 264 Lee v Lee [2019] HCA 28; 266 CLR 129 M v The Queen (1994) 181 CLR 487 Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112 Police v Benz [2023] ACTMC 40 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v A2 [2019] HCA 35; 269 CLR 507 R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 South Western Sydney Local Health District v Gould [2018] NSWCA 69 Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193 Stewart & Ors v Wreck Bay Aboriginal Community Council & Ors [2014] ACTSC 334 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 Warren v Coombes (1979) 142 CLR 531 |
Texts Cited: | Commonwealth Special Gazette, No S76, 2 March 1989 Commonwealth Gazette, No GN 9, 8 March 1989 Commonwealth Gazette, No GN 30, 1 August 2001 P Herzfeld and T Prince, Interpretation (Lawbook Co, 3rd ed, 2024) |
Parties: | Tobias Georg Benz ( Appellant) Jarrod Baldock ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) S Baker-Goldsmith ( Respondent) |
| Solicitors Self-represented ( Appellant) Director of Public Prosecutions (Cth) ( Respondent) | |
File Number: | SCA 65 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Temby Date of Decision: 6 November 2023 Case Title: Police v Benz Citation: [2023] ACTMC 40 Court File Number: CC 349 of 2023 |
McWILLIAM J:
1․This appeal concerns whether a homeless man, sleeping in his car in an unrestricted car park on Barrenjoey Drive in Canberra on 4 January 2023, was camping unlawfully. The appellant in this proceeding, Mr Tobias Benz, was found guilty in the Magistrates Court of unauthorised camping on unleased National Land, an offence under s 68 of the Australian Capital Territory National Land (Unleased) Ordinance 2022 (Cth) (Ordinance): Police v Benz [2023] ACTMC 40 ‘(primary judgment). The appellant was convicted but released without a sentence being passed, subject to recognizance on condition of good behaviour for a period of 6 months, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) (Crimes Act).
2․The appellant has appealed the magistrate’s decision, challenging (among other grounds) the jurisdiction and validity of the legislation under which he was charged and claiming a breach of his human rights. His primary complaint was that he was not “camping” and should have been found not guilty of the offence charged.
3․For reasons that follow, the appellant has established error in the decision made by the court below. Further, construing the relevant legislation in the manner explained below, the conduct in question did not constitute “camping”, being an essential element of the offence. It follows that the appellant should have been found not guilty of the offence.
The charge of unauthorised camping
4․The charge was:
That [the appellant], in the Australian Capital Territory, on 04 January 2023, did camp on unleased National Land and that camping was not authorised by permit.
5․The prosecution case was that the camping occurred “between 1am and 5am on 4 January” and that “the fact that the defendant was sleeping in his car overnight” constitutes camping.
Conduct giving rise to the charge
6․The facts established that on the morning of 4 January 2023, the appellant’s car was parked over a four-hour period from 1:00am to 5:00am and the appellant was in his car for at least part of that period.
7․The appellant’s car was parked in the National Rock Garden car park, located in the Lindsay Pryor Arboretum on Barrenjoey Drive, on the foreshores of Lake Burley Griffin (Rock Garden). He had been given a warning at 1:00am that he could not camp at that location. He was then found by police at 5:00am, sleeping in his car, which was parked in the same location that had been observed by the police earlier that morning.
8․The only other evidence led by the prosecution was that the police had previously seen the appellant on 30 December 2022 at the same location. However, there was no evidence led from the police officer as to the appellant’s car being parked there continuously from that date.
9․In the witness box, the appellant admitted that his car was parked in the Rock Garden car park “on the night from 3 January, crossing into 4 January 2023”. His evidence (which appears to have been accepted by the magistrate), was that when he was directed to move on by police at 1:00am, he did so. He walked away from the car. However, at some point in the hours that followed he returned to the car for shelter, seeking protection from the cold weather. He was in the car when the police returned at 5:00am.
10․The appellant gave further evidence that he could not drive the car because his right to drive in the Territory had been suspended. Separately, the appellant said he was living out of his car because he was homeless.
The elements of the offence charged
11․The conduct in question is proscribed in s 68 of the Ordinance:
68 No unauthorised camping on unleased National Land
(1)A person commits an offence of strict liability if:
(a)the person camps on unleased National Land; and
(b)the camping is not authorised by a permit.
Note: Camping is only authorised under a permit authorising a separate regulated activity on public National land (see section 44).
Penalty: 2 penalty units.
(2)A person who contravenes subsection (1) commits a separate offence in respect of each day during which the contravention continues.
12․The hearing in the court below proceeded on the basis that the prosecution had to prove three elements beyond reasonable doubt:
(a)That the defendant was camping in an area;
(b)That the area was “unleased National Land”; and
(c)That the camping was not authorised by permit.
13․There was no dispute that the appellant did not have a permit. However, the other two elements were contested.
Grounds of Appeal
14․The Notice of Appeal filed 4 December 2023 raised two grounds, being “error in law” and “breach of human rights”. The appellant did not initially file written submissions, but he articulated his complaints orally at the hearing. With the assistance of the respondent in reducing the appellant’s grounds to writing, and following an adjournment to accord procedural fairness to the respondent (who heard the substance of the arguments for the first time at the hearing), the issues arising on the appeal may be summarised as follows:
(a)Whether the Ordinance was invalid because it was not properly authorised (Issue 1);
(b)Whether the magistrate erred in finding that the land on which the car was parked was unleased National Land (Issue 2);
(c)Whether the magistrate erred in defining the word “camping” by reference to a hybrid dictionary definition (Issue 3);
(d)Whether the magistrate erred in finding that the appellant’s conduct constituted camping (Issue 4);
(e)Whether the Ordinance was beyond power because it infringed the appellant’s human rights and specifically, the right to freedom of movement (Issue 5);
(f)Whether the arrest was unlawful, on the basis that the conduct of police infringed the implied freedom of political communication (due to the police targeting either political protestors or the appellant specifically) (Issue 6); and
(g)Whether the magistrate erred in declining to grant the applicant a trial by jury (Issue 7).
Nature of the Court’s powers on appeal
15․The present appeal is one brought pursuant to ss 208 and 214 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act).
16․The nature of the hearing is a rehearing. It is necessary to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 (Alexander) at [16]-[18]. The onus is on the appellant to demonstrate error in the magistrate’s findings: Alexander at [22].
17․Where the error asserted is that the verdict is unreasonable, the Court must ask whether upon the whole of the evidence it was open to the court below as fact finder to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487 at 493.
18․An appeal by way of rehearing requires the Court to conduct “a real review of the evidence given at first instance and the judge’s reasons for judgment and while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion: Alexander at [13], citing Warren v Coombes (1979) 142 CLR 531 at 551 and Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56].
19․If error is established, the Court is obliged to make its own findings and to formulate its own reasoning based on those findings: Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43].
Issue 1: Was the Ordinance invalid because it was not properly authorised?
20․This issue arises first because it is jurisdictional, in that if the Ordinance itself was invalid, any charge under it was not able to be brought. The appellant took issue with the Ordinance and the fact that it was not passed through Parliament in the same way that an Act of Parliament is required. The appellant argued that the Governor-General had no ability to authorise legislation that did not follow that process.
21․This issue can be determined simply by explaining the process by which this type of delegated legislation was made. The respondent’s comprehensive submissions on this issue have been accepted and are incorporated in what follows. As will be explained (in detail primarily for the benefit of the self-represented appellant), that process was followed for the Ordinance involved in this case.
The legislative framework for the making of the Ordinance
22․The Ordinance was made under the Seat of Government (Administration) Act 1910 (Cth) (Government Administration Act): s 3 of the Ordinance.
23․Part V of the Government Administration Act deals with Ordinances. Located within that part is s 12, the relevant parts of which are as follows:
12 Ordinances
(1)Subject to subsection, (1B) the Governor-General may make Ordinances for the peace, order and good government of the Territory with respect to:
…
(d)National Land as defined by the Australian Capital Territory (Planning and Land Management) Act 1988;
…
(1A)An Ordinance made under paragraph (1)(d) has no effect to the extent that it is inconsistent with the National Capital Plan in effect under the Australian Capital Territory (Planning and Land Management) Act 1988, but an Ordinance shall be taken to be consistent with the Plan to the extent that it is capable of operating concurrently with the Plan.
…
24․Sections 12(1B) and (1C) of the Government Administration Act then deal with provisions that cease to have effect, none of which include the operative provision here, being s 12(1)(d).
25․The remainder of s 12(2) deals with requirements for an ordinance to take effect and for publication of an ordinance. Material to the making of the Ordinance in the present case, the requirements are:
(a)Every ordinance made under the Government Administration Act shall be notified in the Gazette in accordance with sub-sections 12(2A) to 12(2D);
(b)The ordinance takes effect from the date of notification or another date specified;
(c)The ordinance is to be laid before each House of Parliament within 15 sitting days of that House after the day on which the Ordinance is made.
26․Under s 12(3), if the ordinance is not laid before each House of Parliament within the required time frame, it ceases to have effect. Sub-sections 12(4)-(6A) deal with processes for disallowance.
Registration of the ordinance is required
27․The above addresses the tabling of the ordinance (describing “laid before each House of Parliament”) without disallowance. There is a further step, in that before it may be enforceable, the ordinance must be registered. The legislative framework underlying that proposition may be briefly summarised as follows:
(a)An ordinance made under s 12(1) of the Government Administration Act that has not become an enactment is a “legislative instrument”: s 10(2)(b) of the Legislation Act 2003 (Cth) (Legislation Act).
(b)For completeness, an “enactment” is defined in s 3 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act) to be:
(a)a law (however described or entitled) made by the Assembly under this Act; or
(b)a law, or part of a law, that is an enactment because of section 34.
(c)A legislative instrument is not enforceable by or against any person unless the instrument is registered as a legislative instrument: s 15K(1) of the Legislation Act.
(d)A legislative instrument must be lodged for registration by the rule-maker as soon as practicable after the instrument is made: s 15G(1) of the Legislation Act.
(e)Since 2005, there is no longer a requirement to formally gazette legislative instruments. Any previous requirement is taken to be satisfied if the instrument is registered as a legislative instrument: s 56(1) of the Legislation Act.
(f)The Federal Register of Legislation is, for all purposes, taken to be a complete and accurate record of all registered Acts, legislative instruments and notifiable instruments: s 15B of the Legislation Act.
Was the Ordinance made pursuant to the authorised procedure?
28․It is apparent on the face of the Ordinance in question here that it was made by Governor-General David Hurley on 31 March 2022. His Excellency was expressly authorised to do so pursuant to s 12(1) of the Government Administration Act.
29․The Ordinance is accessible on the Federal Register of Legislation, which discloses:
(a)It was tabled or laid before each House of Parliament on 26 July 2022(being a date that was within 15 sitting days of 31 March 2022), as required by s 12(2)(c) of the Government Administration Act.
(b)The Ordinance did not become an enactment, and therefore is classified as a legislative instrument pursuant to s 10(2)(b) of the Legislation Act.
(c)None of the disallowance processes having been invoked, it was registered in the Federal Register of Legislation 31 March 2022, as required by s 15K of the Legislation Act.
(d)Although the Ordinance was required to be notified by gazettal under s 12(2) of the Government Administration Act, it was deemed to have been done by virtue of its registration on the Federal Register of Legislation (s 56 of the Legislation Act).
30․Accordingly, from 31 March 2022 when the Ordinance was registered, it became enforceable against any person: s 15K(1) of the Legislation Act.
31․Significantly here, the appellant appears to have misunderstood the different processes applying to ordinances, being a legislative instrument which must be “put before” Parliament (or tabled) and Acts, which must pass through both Houses of Parliament.
32․The above demonstrates that the procedure for the making and enforceability of the Ordinance in question here was followed. The Ordinance was authorised and validly made. This ground of appeal therefore has no substance.
Issue 2: Was the carpark on National Land to which the Ordinance applied?
33․This issue is also jurisdictional because the Ordinance only applies to National Land. Before the magistrate, the appellant disputed whether the car park area was “National Land” under the Ordinance. The appellant argued either that the area was not National Land or that the Territory laws applied to the carpark as a public road. In either case, s 68 of the Ordinance did not apply. The magistrate found against the appellant on each of those points and the appellant submitted on appeal that the magistrate was wrong.
34․The Court must consider: first, whether the carpark was “National Land” within s 68 of the Ordinance; and second, whether s 68 of the Ordinance was excluded from applying to the carpark because of the fact that it constituted a public road. Each is a question of law. For reasons that follow, the area is National Land and s 68 of the Ordinance applied.
The reasons of the magistrate dealing with whether the carpark was National Land
35․In the primary judgment, the magistrate relied on oral evidence given by an officer at the National Capital Authority stating at [35]-[37]:
35․ The question, then, is whether I am able to rely on the evidence of Ms Song, that the National Rock Garden is situated within areas of land declared as National Land in the Gazette (and her evidence that it is unleased National Land).
36․ In my view, I can.
37․ In Bloomfield v Brown [2003] ACTSC 43, the defendant was charged with an offence under the Public Order (Protection of Persons and Property) Act 1971 (Cth). One element of the offence charged was that the defendant was “in or on Commonwealth premises”.
36․The magistrate went on to discuss Bloomfield v Brown [2003] ACTSC 43, which dealt with different legislation and where Connelly J relied (at [19]-[20]) on the oral evidence of a witness as to whether something occurred “on Commonwealth premises”. The magistrate then stated at [39]-[41]:
39․ Similarly in this case, nothing in the Defendant’s cross-examination of Ms Song undermined her evidence that the National Rock Garden car park is unleased National Land.
40․ I accept that Ms Song, with over two years’ experience as the Director for estate management at the National Capital Authority – which is the custodian for National Land – has sufficient experience to give evidence as to the areas of National Land in the Australian Capital Territory. She was familiar with the relevant gazette notice (which I took to refer to the Commonwealth Gazette identified above) and also with a map that she said identified the areas of National Land in the Australian Capital Territory. She said that the Lindsay Pryor Arboretum falls within one of the areas of declared National Land and that the car park there is currently public unleased National Land.
41․ I accept Ms Song’s evidence. Accordingly, I find that National Rock Garden car park, where the Defendant was located (being an area within the Lindsay Pryor Arboretum), is unleased National Land.
The legislative framework for designating National Land
37․The starting point is that the Ordinance applies to National Land: s 6(1), Ordinance.
38․The offence provision in s 68 applies to “unleased National Land”.
39․Unleased National Land is defined in s 5 of the 2022 Ordinance to mean:
National Land that is not subject to a lease granted under the Australian Capital Territory National Land (Leased) Ordinance 2022.
40․In the same section, “National Land” is defined to have the same meaning as in the Planning and Land Management Act, meaning the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (PALM Act).
41․That directs attention to the PALM Act. National Land is defined in s 27:
27National Land
(1)The Minister may, by notice published in the Commonwealth Gazette declare specified areas of land in the Territory to be National Land.
(2)The Minister shall not declare an area to be National Land unless the land is, or is intended to be, used by or on behalf of the Commonwealth.
(3)If an Act vests the management (however described) of specified land in the Territory in a person or body, the land is National Land for the purposes of this Act.
(4)Subsection (3) does not apply to the vesting of an estate in land.
42․Relevantly here, what is now described as the Lake Burley Griffin and Foreshores Precinct Location in the National Capital Plan was declared to be National Land in the Commonwealth Gazette on 2 March 1989: Commonwealth Special Gazette, No S 76, 2 March 1989 (Gazette S 76), found in Commonwealth Gazette, No GN 9, 8 March 1989.
43․The declaration was expressly made pursuant to s 27(1) of the PALM Act, being that “all those areas of land described in the first and second schedules”, is to be “National Land all those areas of land so described being used, or being intended to be used, by or on behalf of the Commonwealth.”
44․Proof is not required of instruments of a legislative character required to be published in an official gazette: s 143(1)(d) of the Evidence Act 1995 (Cth). Nor is proof required for knowledge capable of verification by reference to a document the authority of which cannot reasonably be questioned (such as a government gazette).
45․Gazette S 76 was referred to in the primary judgment at [34]. The magistrate noted that the identification of the boundaries was not specified and no supporting material was provided – that is, there was no map provided to give clarity of the land boundaries. The Gazettal notice referred to the relevant map of the blocks specified (thereby incorporating the information in the declaration) and where it could be obtained. His Honour certainly was entitled to receive assistance from the prosecution in that regard.
46․However, one of the blocks referred to in the schedule in the Gazette, under area “National Museum of Australia” was block 1339 in the CCD district (the Canberra Central District). That area may be matched to a later gazettal, also available on the Federal Register of Legislation, which did describe the area by reference to boundaries: “the park land area between Lady Denman Drive, Barrenjoey Drive and Yarramundi Reach, Part Block 1339, Canberra Central District, Yarralumla” was gazetted and renamed “Lindsay Pryor National Arboretum”: Commonwealth Gazette, No GN 30, 1 August 2001 at 2195.
47․By reference to those extrinsic materials, it is clear that the carpark in question was located within Block 1339 in the District of Canberra Central, an area that was National Land.
Is error established?
48․The approach taken by the magistrate in relying upon evidence of an officer from the National Capital Authority was mistaken. The question whether the carpark located at the Rock Garden was at law “National Land” was a legal question. The question of whether facts fully found fall within provisions of a statutory enactment, properly construed, is a question of law: Hope v Bathurst City Council (1980) 144 CLR 1(Hope) per Mason J at 7. Mason J’s comments should be understood as indicating that a question of law exclusively arises if, on the facts found, only one conclusion is open: Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [27], citing Hope at 9.
49․That is the case here. The question whether a particular area of land had been declared via gazettal to be National Land, so as to fall within s 27 of the PALM Act and s 6 of the Ordinance, was one where only one conclusion was open. That is, whether the area in question had been declared National Land through the stipulated legislative process was a question admitting of only one conclusion in the circumstances of every case.
50․Whatever her experience, any opinion about whether the area in question was National Land, or land that was managed by that Authority, was irrelevant to the essentially legal question about the statutory classification of the land. That is not to say that the evidence of the witness was immaterial in its entirety – it was also directed to whether a permit had been issued to the appellant in respect of that area. However, that aspect of the evidence is not of concern here as the lack of a permit was not disputed.
51․I have therefore reached the same conclusion as the magistrate, but for different reasons. When the legislative pathway is properly traced as set out above, the magistrate’s ultimate conclusion on whether the area involved was National Land, as a matter of law, was correct.
52․The appellant’s separate argument (as I understood it) was that the carpark constituted a public road, and the road itself was not National Land.
53․Section 9(1)(a) of the Ordinance suggests otherwise, as it defines a public road to be “any street, road, lane or thoroughfare that is on National Land”. Fundamentally, an area of National Land does not cease to have the status declared simply because of the use to which it is put – in this case, a carpark.
54․Even if it was accepted that the road remained National Land, there was a further dispute between the parties on appeal (but not in the court below) as to what laws applied to that car park or public road. The appellant’s argument was that Territory legislation applying to public roads applied, which had the effect of excluding the carpark from the operation of legislation applying to National Land (being the Ordinance).
55․The appellant is correct about the first of those propositions, in that ACT road transport legislation does apply to the carpark at the Rock Garden, so far as it is not inconsistent with the National Land (Road Transport) Ordinance 2014 (Cth) (Road Transport Ordinance), or a rule made pursuant to it (see s 7(1)).
56․The appellant maintained that he was parked in a road related area (defined in s 37(3) of the Ordinance) in a way that did not contravene Territory law as applied by the Road Transport Ordinance. I accept that. However, there is a difference between the activity of a parked car, which may have been lawful under Territory law, and the activity of camping, about which the Territory law was silent.
57․As the respondent submitted, s 28 of the Self-Government Act deals with the relationship between Commonwealth laws and laws in the Territory. Where a Territory law is directly or indirectly inconsistent with a Commonwealth law, s 28(1) provides that the Territory law is of “no effect”. Here, the Ordinance expressly provides at s 7(1)(b) that it is not intended to make conduct unlawful if it is otherwise lawful under a Territory Act, unless a contrary intention appears. Here, s 68 of the Ordinance creates such a contrary intention.
58․Otherwise, for the reasons above, the argument that the carpark was excluded from the operation of the Ordinance because the road rules of the Territory applied is not sustainable. In short, this case is not about parking a vehicle on National Land; it is about camping on National Land. A public road or a carpark on National Land does not cease to be National Land when another Territory law applies to those who drive upon it. The submission that the Ordinance was excluded by the additional overlay of ACT road transport legislation (either in its entirety or only with regard to s 68) is not sustained.
Issues 3: Was there error in how the term “camping” in the Ordinance was defined?
Issue 4: Was there error in the factual finding that the appellant’s conduct constituted “camping”?
59․I have dealt with these two issues together because on the reasoning that follows, the construction of the Ordinance is determinative of whether there was error in the factual findings made by the magistrate.
60․The appellant’s complaint was that the magistrate took an incorrect approach to defining “camping”, and that he erred in defining the term to include sleeping overnight in a car in an unrestricted carpark. The respondent argued that the magistrate undertook a detailed and careful analysis of the relevant law, legislative history, and dictionary definitions in determining the definition to be given to the term “camping”.
61․It must be remembered that the exercise of statutory construction being undertaken was of a statutory term that comprised an element of a criminal charge.
62․The appellant submitted (in supplementary submissions provided on 2 October 2024 following the hearing) that if there was a reasonable doubt about whether the element was satisfied, for whatever reason, either because the scope of the term was too ambiguous in the circumstances of the case or because there was uncertainty about whether the conduct proved itself fell within the term, then the appellant was entitled to be acquitted of the charge. It was his best point. As will be explained, through the application of principles of statutory construction, being the principle of legality and offence provisions being strictly construed, I have arrived at the same conclusion that the appellant was entitled to be acquitted.
The reasons of the magistrate
63․To explain the approach to statutory construction of the term that was taken in the court below, it is necessary to set out the magistrate’s reasoning on the statutory term “camping” in the Ordinance in some detail. The reasoning in this respect commenced as follows (emphasis added):
Meaning of “camping”
43․ The word “camp” is not defined in the Unleased National Land Ordinance (and nor is “camps”, or “camping”, as used in section 68 of the ordinance). Neither party referred me to any case law considering section 68 of the Unleased National Land Ordinance or, indeed, considering the meaning of “camping” in any other context.
44․ The Prosecution submitted that it should take its ordinary meaning. Given the purpose of the Ordinance (to provide for the protection and use of unleased National Land), and the way in which section 68 is drafted, including its context within the Ordinance, I accept that submission. Section 68 should be read by reference to the ordinary meaning of “camping”.
45․ Having said that, “camping” is not well defined in the dictionary meanings I considered. During the hearing I found two definitions which are set out in online dictionaries – “Cambridge online” and “Britannica online” – the combination of which was accepted by the parties as a reasonable definition of “camping” for the purposes of section 68 of the Unleased National Land Ordinance. Accordingly, the definition I adopted was: “the act of staying and sleeping in an outside area for one or more days and nights, usually in a tent and usually for enjoyment”.
46․ Relevantly, for the purposes of this definition:
(a) it is an essential aspect of the definition that a person will stay and sleep in an outside area over the course of a particular period (one or more days and nights);
(b) it is not a requirement that camping be undertaken at a “camp site” – camping, as an activity, can be undertaken anywhere;
(c) it is not a requirement that anything in particular be set up to enable a person to camp – what is required is that a person utilise some form of temporary accommodation in which they can “stay” and “sleep”;
(d) it is not a requirement that any particular structure (including a tent) be used – a person could camp in a tent, but could equally camp in a vehicle (a campervan being an obvious example); and
(e) it is not a requirement that camping be undertaken for enjoyment (or “recreation” as the Defendant suggested) – for example, a person of poor financial means may camp as an inexpensive way of living.
47․ I note the following legislative definitions that exist in other jurisdictions, by way of comparison:
(a)National Parks and Reserves Management Regulations 2019 (Tas) – camping means “residing temporarily in a hide, tent, caravan, cabin, vehicle, trailer or building”; and
(b)West Beach Recreation Reserve Regulations 2003 (SA) (repealed) – camping “includes sleeping overnight in a motor vehicle parked in the Reserve”.
48․ Like the definition I adopted, for these definitions:
(a) an important element of the activity is that it involves sleeping overnight and, in relation to the Tasmanian legislation, the need for the person to utilise a temporary residence;
(b) the act of camping does not require the use of a tent, or any other particular structure, and can involve the use of a vehicle; and
(c) the definition is not limited to recreational camping.
64․Pausing there, it can be seen that the approach at that point in the reasoning was to reference other definitions in different legislation in different states, and with potentially different statutory purposes, to determine whether those definitions (one of which was repealed) were consistent with the hybrid dictionary definition that had been adopted as the “ordinary meaning” to be applied to a Commonwealth Ordinance.
65․Other than to note that camping has been defined by other statutes elsewhere in Australia, it is difficult to see the relevance of the definitions to which the magistrate referred. To the extent that this was an attempted application of the principle that statutes upon “the same subject matter along the same lines” are to be construed in a similar manner, that is, in pari materia, (as to which see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL) at [24]), regulations in different states on recreational reserves could not be said to be the same subject matter as National Land. The High Court in SZTAL went on at [24] to say (references omitted):
Without this feature there is no warrant to transpose the meaning of a word from one statute to another or to assume, where the same words are used in a subsequent statute, that the legislature intended to attach the same meaning to the same words.
66․More significantly, the very fact that other legislation specifically defines “camping” and includes within it the “use of a vehicle” suggests that on the ordinary or literal meaning of the word, contrary to what was found by the magistrate, there may well be doubt about whether the use of a vehicle in a carpark is camping. Hence the need to define the term in a statute if the legislature intends the term to extend to such activity.
67․Returning to the reasons, the magistrate then stated at [51] (emphasis added):
the legislative history which led to the making of the [Ordinance], and section 68 in particular, in order to confirm that “camping” in section 68 should be given its ordinary meaning. In my view, nothing in that history is inconsistent with the definition of camping that I adopted at the hearing.
68․The magistrate then discussed the Explanatory Statement to the Ordinance at [52]:
I note that the Explanatory Statement that was prepared for the Unleased National Land Ordinance does not provide any explanation with respect to the meaning of the word “camps” or “camping” in section 68. Relevantly, the Explanatory Statement does state, in part, that:
The Australian Capital Territory National Land (Unleased) Ordinance 2022 (the Ordinance) deals with unleased National Land that is open to the public, such as parks and roads, and other unleased National Land in the Australian Capital Territory (ACT). Amongst other matters, the Ordinance provides for the grant of permits to use public unleased National Land for various activities including commercial events, provides for the declaration and closure of public roads and provides various measures to protect National Land. Most of the provisions are updated versions of laws that applied to National Land under the National Land Ordinance 1989 (NLO).
...
The laws applied by the NLO fall into three categories: unleased land (including public places and roads), leased land and lake areas (Lake Burley Griffin). This Ordinance deals with matters previously covered by the applied provisions of the following 5 laws that were given effect by the NLO ...
69․The magistrate then referred to other minor matters of legislative history before bringing the consideration to a conclusion at [59]-[66] (emphasis added):
Impact of legislative history
59․ Like the Unleased National Land Ordinance, the Trespass Ordinance did not define the word “camp”.
60․ A feature of both ordinances is that, in general terms, they create a separate offence of camping from an obligation to comply with a direction to remove an object from unleased land. As discussed above, the Trespass Ordinance contained specific provisions dealing with structures and vehicles on unleased National Land (including providing a removal direction power), while the Unleased National Land Ordinance contains a more general obligation (in section 36) to comply with a direction to remove an object (which includes a vehicle).
61․ I considered whether the creation of these separate offences indicates that I should exclude the use of a vehicle from the definition of “camps” and “camping” in section 68 of the Unleased National Land Ordinance. However, I do not consider that is how the provision should be interpreted.
62․ As set out above (in discussing the meaning of “camping”), I consider that the ordinary meaning of camping encompasses the use of a vehicle to do so. I do not consider that the creation of a separate offence in relation to vehicles being on National Land, or anything else in the legislative history leading to section 68 of the Unleased National Land Ordinance, is inconsistent with that conclusion.
63․ In particular, it is my view that the camping provision and the object removal provision serve different purposes. One is directed at preventing a particular activity and the other is directed at facilitating the removal of an object.
64․ It is noteworthy that the Trespass Ordinance created separate offences with respect to camping and the erecting of a structure. As noted above, similar to section 36 of the Unleased National Land Act, subsection 8A(5) of the Trespass Ordinance permitted a police officer (and others) to remove a structure if the person in control of it did not comply with a direction to do so. A “structure” was defined in section 8A of the Trespass Ordinance to include a tent.
65․ As the above demonstrates, there is nothing inconsistent in one provision in a legislative instrument regulating an activity and another provision regulating the use of an object that might be used in that activity. Of course, the objects which might be the subject of a removal direction under section 36 of the Unleased National Land Act are not limited to the kinds of objects that might be used for camping.
66․ In my view, there is nothing in the legislative history leading to the making of the Unleased National Land Ordinance that is inconsistent with the definition of camping that I adopted. In particular, there is nothing in the legislative history to suggest that the word “camping” should be defined by anything other than its ordinary meaning.
Is error established?
70․Recourse to dictionaries may be a useful starting point: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112 at [23]. However, there is limited utility in substituting dictionary definitions as the legal meaning of a statutory term. In South Western Sydney Local Health District v Gould [2018] NSWCA 69; 97 NSWLR 513, Leeming JA (Basten and Meagher JJA agreeing) discussed in detail the limited utility of defining a statutory term by reference to a meaning in a dictionary. His Honour stated at [78]-[81] (emphasis added):
78.The legal meaning of a statutory term is but rarely assisted by resort to a dictionary definition. On at least three occasions, joint judgments of a majority of the High Court have approved Learned Hand J’s statement in Cabell v Markham 148 F 2d 737 (2d Cir 1945) to the effect that a mature and developed jurisprudence does not “make a fortress out of the dictionary”. In Commissioner of Taxation of the Commonwealth of Australia v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA 17 at [49], French CJ, Heydon, Crennan and Bell JJ said that there was a well-recognised danger in making a fortress out of the dictionary when interpreting a statute. See also Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 at [27] and Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [23]. The fact that one of the meanings in a dictionary may support the legal meaning of a statutory term chosen by a court does little to provide a basis for a conclusion as to legal meaning. It often does no more than to provide the illusory comfort that the court’s construction is supported by common usage. Mason P, with whom Stein and Giles JJA agreed, endorsed the remark of Randolph J of the United States Court of Appeals for the District of Columbia Circuit, writing extra-judicially:
“[C]iting ... dictionaries creates a sort of optical illusion, conveying the existence of certainty – or ‘plainness’ – when appearance may be all there is.”
(House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28].)
79. A dictionary will give a range of meanings of a word. The task of a court is to identify, from text, context and purpose, the particular meaning that a statutory provision bears. The function of a dictionary and the function performed by a court construing a statute are utterly different. It must be borne in mind that the meaning of any word used in a statute depends on the context and purpose of the legislation in which it appears: Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15 at [18].
80. That dictionaries tend to be unhelpful is accepted in modern Australian appellate courts. Mason P said that dictionaries “can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose”: House of Peace at [28]. In Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14 at [103]-[111], Kirby J candidly acknowledged that he was “now inclined to see more clearly than before the dangers in the use of dictionary definitions”, principally because of the need to have regard to context and purpose. I respectfully agree with Weinberg J’s observation in Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189 at [163], recently endorsed in Cheryala v Minister for Immigration & Border Protection [2018] FCAFC 43 at [31] and [44]:
“[163] … Dictionary definitions are unhelpful, and say little, if anything, about how that term is to be understood in any particular situation.”
81. A dictionary may assist if a question truly arises as to the meaning of a word, especially if it is an historical meaning (in House of Peace, the question was whether use as a “church” in a 1954 development consent comprehended use as a mosque). It may also be accepted that a dictionary may assist a court in identifying the full range of literal meanings a statute might bear, although it is unlikely that modern statutes, which tend to be drafted by parliamentary counsel, will use language that requires resort to a dictionary definition. But even in cases where a dictionary might assist at the outset, the court’s task is not accomplished by surveying the range of meanings found in a dictionary and choosing that which seems most apt. Doing so may often disguise the real reasons which favour a particular legal meaning. As McHugh J said in Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [98], “The literal meaning of the legislative text is the beginning, not the end, of the search for the intention of the legislature.”
71․While aspects of the above extract have been criticised by some commentators as overstating the position (see P Herzfeld and T Prince, Interpretation (Lawbook Co, 3rd ed, 2024) at [2.140]), the significance of the words emphasised is to focus attention on the Court’s task of statutory construction to identify the meaning of a word by reference to the text, context and purpose of the statute in which it appears.
72․Going back to first principles, what the Court must do is attempt to give effect to the intention of Parliament as disclosed by the language used in the statute: Dixon v Todd (1904) 1 CLR 320 at 326-7; and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]. What did Parliament mean by the words that it used?
73․The method by which this is done was explained in cases such as SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL) at [14] (footnotes omitted):
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
74․The difficulties in working out the meaning of a word in a statute where that term is not defined in the statute itself are acknowledged, as are the consequent difficulties in assessing whether particular conduct falls within the term used in those circumstances. The magistrate patently did his level best to work out the meaning of the statutory term that constituted a criminal element.
75․Nevertheless, the above extract demonstrates that, even though it was apparently consented to by at least the respondent, an approach to statutory construction which started with a hybrid of dictionary definitions from two online sources, neither of which was Australian (because “camping” was “not well defined” in the other unspecified dictionaries considered by the magistrate), adopting that combination as “the ordinary meaning” of an element in a particular Commonwealth statute, and then embarking on a detailed search through legislative history of the Ordinance to see if there was anything contradicting the meaning first adopted, was not the correct approach.
76․To explain the arbitrariness of the course adopted in this case (and the vice discussed by Leeming JA in the extract above), the magistrate could equally have used a definition taken from a different dictionary and then referred to other legislation as being consistent with that definition. For example, in Stewart v Wreck Bay Aboriginal Community Council [2014] ACTSC 334; 291 FLR 428 (Stewart), Burns J considered the Aboriginal Land Grant (Jervis Bay Territory) By-Laws 2005 (Cth), which similarly did not define “camping”. His Honour stated at [92]:
… The Macquarie Dictionary defines “camp”, when used as a verb, to mean “to establish or set up a camp”. This directs attention to the meaning of the word as a noun, for which the relevant definition is “a group of tents, caravans, or other temporary shelters in one place”. …
77․Some have expressed the view that, when interpreting Australian legislation, the Australian-based Macquarie Dictionary is the most authoritative: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [33], although that is not to be taken as the Court indicating there is any single authoritative dictionary, and even then, given the above discussion, that does not take the argument very far.
78․The point of the example in Stewart is that selecting a different dictionary definition, comparing it with other legislation, such as the Commonwealth legislative instrument considered by Burns J, and undertaking the same discussion of the legislative history that the magistrate included in the reasons above, would have produced the opposite outcome for the appellant. Indeed, the appellant included other dictionary definitions in his submissions and a definition of “overnight camping area” taken from the (now repealed) Territory Plan 2008 (ACT) which stated:
Overnight camping area means the use of land for holiday and recreational purposes which involves primarily the setting up and use of tents for overnight accommodation which is open to public use.
79․It is unnecessary to consider those definitions further because, as I have said, the approach was erroneous. The error in construction on Issue 3 affected the application of the term to the facts of the case and the factual conclusion reached by the magistrate (Issue 4).
80․Formulating my own reasoning, the established approach was discussed in R v A2 [2019] HCA 35; 269 CLR 507 (A2), where Kiefel CJ and Keane J stated (Nettle and Gordon JJ agreeing) at [32]:
The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. …
81․Those words confirm that working out the meaning of the provision as disclosed by the words Parliament used does start with having regard to the words of the provision itself. This extends to a consideration of the ordinary meaning of the words in question. Further, with all the caution expressed in the authorities discussed above, the use of dictionaries may assist in identifying various meanings the word “camping” may bear.
82․In that regard, the Macquarie Dictionary definition of “camp”, when used a verb, has been set out in the context of discussing Stewart (see [76] above). Establishing or setting up a temporary shelter suggests doing something more to create a camp than parking a car in a carpark. However, what is of significance is that there is uncertainty in what it means to set up a temporary shelter, and which of the ordinary meanings the word is to bear in this particular piece of legislation.
83․Kiefel CJ and Keane J went on in A2 to state at [33] (footnotes omitted):
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
84․Here, the mischief or purpose behind the legislation is readily discernible from section 4 of the Ordinance, headed “Simplified outline of this Ordinance” (emphasis added):
National Land is land within the Australian Capital Territory that the Commonwealth continues to manage following the establishment of self‑government in the Territory.
This Ordinance provides for the management of National Land that is open to the public (such as parks and roads), as well as other National Land that has not been leased.
Some provisions apply to all unleased National Land. Other provisions only apply to unleased National Land that is open to the public.
The Ordinance covers the making, alteration and closure (both temporary and permanent) of public roads on National Land. It also covers doing things necessary for the protection of unleased National Land, such as drainage work, damage repair and tree management.
The Ordinance provides a system for granting permits to use public unleased National Land for activities like functions and events, as well as for placing signs and other objects on or adjacent to public National Land. The permit provisions also apply to lake areas.
The Ordinance provides for the grant of licences to occupy or use unleased National Land. The licensing provisions also apply to lake areas.
The Ordinance also sets out certain offences in relation to things happening on unleased National Land.
85․I will pass over the provisions of the Ordinance dealing with public roads and protection and management of unleased National Land. Of more significance is how the land may be used. Part of the context for the provision with which the present facts are concerned relates to Part 4, which covers the use of public National land.
86․Activities that are regulated included the placement of a marquee on the land for a public or private event, as that is an event that involves the erection or placement of a structure: s 44(1) of the Ordinance. However, the same provision also regulates activities or events that may not involve the erection of a structure, such as weddings.
87․For those regulated activities, a permit, licence or works approval is required: s 45 of the Ordinance. Use of the land for a regulated activity without one of the required authorisations is an offence.
88․The Ordinance then deals with permits and licences, before the part in which s 68 of the Ordinance is located: Part 5 titled “Other activities on unleased National Land”. That part solely provides for a series of offences for other activities on unleased National Land. They include:
(a)Damaging or destroying a fence, sign or marker without authorisation (s 64);
(b)Leaving open a gate when there is a notice on the gate requiring it to be kept closed when not in use (s 65(1));
(c)Damaging or destroying flora without authorisation (s 66); and
(d)Taking earth of any kind without authorisation (s 67).
89․Section 68 (the terms of which are set out at [11] above) is the final offence provision in that part. The note to the section makes it clear that camping is only authorised under a permit authorising a separate regulated activity on public National Land, which is why consideration was given to regulated activities as part of considering the context of the provision. However, the note does not assist in clarifying the breadth or boundaries of what constitutes camping itself.
90․The remainder of the Ordinance deals with police powers, the power to make rules, impose fees and approve forms, and transitional provisions.
91․It can be seen that the offence provisions in Part 5 all involve doing something to the land or the structures on it. Parliament’s intention or purpose, disclosed by the clear words of each provision, was to criminalise such conduct. But even with the broader context and purpose of the statute being considered and understood, there remains ambiguity about whether an individual parking in a car in an unrestricted carpark overnight, with the intention of sleeping for part of that time in the car, is engaging in conduct that constitutes the setting up of or establishing a camp or “camping”, and thus offends the provision. The ambiguity is not resolved by reference to any of the legislative history, set out in the magistrate’s reasons.
92․It is here that other tools of construction may be usefully employed. If the language of the statute remains ambiguous or doubtful after the application of those principles (that is, as a principle of last resort), the ambiguity or doubt is to be resolved in favour of the subject: see A2 at [52], where Kiefel CJ and Keane J cautioned against accepting any “loose” construction of an offence provision, citing Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193 at [45]. If it were necessary to go further, the principle of legality may also aid the interpretation of the offence in a narrower form.
93․For this reason, properly construed, the ambiguity in the meaning of the word “camping” forming an element of the offence in s 68 of the Ordinance should be resolved in favour of the appellant, such as to exclude the conduct that was found in the present case, which amounted to parking in a carpark (without time restrictions) with an intention to sleep inside the car for a period of time that extended overnight.
94․Accordingly, the appellant succeeds in establishing error on Issues 3 and 4. Further, that conclusion means that the prosecution did not prove beyond reasonable doubt an element of the offence, which entitles the appellant to an acquittal on this charge.
Issues 5, 6 and 7: Right to freedom of movement, unlawful arrest, and trial by jury
95․The appellant has established a number of errors, one of which is dispositive of the appeal. Notwithstanding the diligence of the submissions prepared by the parties on the remaining grounds, it is unnecessary to address them in any detail.
96․In relation to Issue 5, the appellant’s right to freedom of movement is a statutory right in the Territory under s 13 of the Human Rights Act 2004 (ACT), but the same statute provides it may be limited by reasonable (proportionate) means: s 28. The question of whether it has any operation in the context of a Commonwealth ordinance dealing with National Land falls away in light of the findings above.
97․In relation to Issue 6, putting aside the difficulties of the competency of the ground, whether the appellant was subject to unlawful arrest also falls away on the findings above.
98․In relation to Issue 7 and whether there was a right to trial by jury, as the respondent submitted, the right to trial by jury specified in s 80 of the Commonwealth of Australia Constitution Act (Cth) (Constitution) expressly only applies in respect of trials on indictment. It is for the Parliament to decide what offences are to be tried on indictment: R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 at 135-136; and Kingswell v The Queen (1985) 159 CLR 264 at 276-277.
99․Here, the Parliament has done that through s 4G of the Crimes Act which provides that an indictable offence is one that is punishable by imprisonment for a period exceeding 12 months.
100․A summary offence is prescribed in s 4H of the Crimes Act as one that is either:
(a)punishable by imprisonment for a period not exceeding 12 months; or
(b)not punishable by imprisonment.
101․The second of those alternatives applies here. A breach of s 68(1) of the Ordinance is punishable by 2 penalty units only and is therefore a summary offence. The consequence is that s 80 of the Constitution is not enlivened. The magistrate was correct to proceed to hear the case on a summary basis.
Orders
102․For the above reasons, the orders of the Court are as follows:
(1)The appeal is allowed.
(2)The verdict delivered on 6 November 2023 is set aside and in lieu thereof the charge of unauthorised camping on unleased National Land, contrary to s 68 of the Australian Capital Territory National Land (Unleased) Ordinance 2022 (Cth) is dismissed.
| I certify that the preceding one hundred and two [102] numbered paragraphs are a true copy of the Reasons Judgment of her Honour Justice McWilliam Associate: Date: |
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