Hemelaar v Brisbane City Council

In the matter of Hemelaar v Brisbane City Council, the applicant sought leave to appeal from a decision of the District Court. The District Court had found the applicant guilty of eight breaches of the Public Land and Council Assets Local Law 2014 (Qld) and dismissed the applicant's appeal against those convictions. The applicant, a member of Operation 513, engaged in activities intended to make known the message of the bible to the public, including public addresses, literature distribution, and signs and banners. The applicant had given notice of these activities in accordance with the Peaceful Assembly Act 1992 (Qld), but did not obtain the necessary consent from the respondent, Brisbane City Council, to use an amplifier and other materials in the Queen Street Mall. The applicant argued that the Peaceful Assembly Act provided legal immunity for the breaches of the Local Law.

The legal issues before the court were whether there was a substantial injustice or a reasonable argument that there was an error arising from the District Court decision that would justify granting leave to appeal and whether the Peaceful Assembly Act provided legal immunity for the breaches of the Local Law. The primary Judge found that the rights conferred by the Act were broad rights in respect of public assemblies in general, and the activities of the applicant fell within the definition of an assembly to which the Act had operation. However, the primary Judge also found that the Local Law applied and the applicant committed the breaches the subject of the appeal.

The court granted leave to appeal but dismissed the appeal, holding that the Peaceful Assembly Act did not provide legal immunity for the breaches of the Local Law. The court found that the right to assemble peacefully provided by the Act was subject to the provisions of the Act which allowed the regulation of assemblies in pedestrian malls. The designation as an authorised public assembly was relevant to the provision of the limited immunity conferred by the Act, which was immunity from civil or criminal liability because of the obstruction of a public place. The court concluded that there was a clear legislative intent that Local Laws in respect of pedestrian malls were applicable to peaceful assemblies under the Act, despite the other provisions of the Act in respect of authorised public assemblies.

The final orders of the court were that leave to appeal be granted, that the appeal be dismissed, and that the applicant pay the respondent’s costs of the appeal, to be assessed on a standard basis.