Liberal Party of Australia (Western Australian Division) Inc v City of Armadale
[2013] WASC 27
•30 JANUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LIBERAL PARTY OF AUSTRALIA (WESTERN AUSTRALIAN DIVISION) INC -v- CITY OF ARMADALE [2013] WASC 27
CORAM: KENNETH MARTIN J
HEARD: 18 JANUARY 2013
DELIVERED : 18 JANUARY 2013
PUBLISHED : 30 JANUARY 2013
FILE NO/S: CIV 3074 of 2012
BETWEEN: LIBERAL PARTY OF AUSTRALIA (WESTERN AUSTRALIAN DIVISION) INC
Plaintiff
AND
CITY OF ARMADALE
Defendant
Catchwords:
Electoral signage - Freedom of political communication - Local authority's policy prohibition against electoral signage on private land - Temporary electoral signs - Candidate - Dimensions as to area and placement - Modifications proposed - Interlocutory injunction - Balance of convenience - Prima facie case - State election looming
Legislation:
Nil
Result:
Judgment for plaintiff
Interlocutory injunction granted
Category: B
Representation:
Counsel:
Plaintiff: Mr M Cooke
Defendant: Mr D W McLeod
Solicitors:
Plaintiff: Herbert Smith Freehills
Defendant: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334
Greene v Gold Coast City Council [2008] QSC 25
KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 18 January 2013 and has been edited from the transcript.)
This is an injunction application envisaged by orders of the Chief Justice of 24 December 2012 when he granted ex parte, on an urgent basis, a limited interim injunction concerning the electoral signage on private land, being lot 41, 1 Lefroy Road, Mount Nasura.
That limited (to one location) interim injunction was granted on behalf of the plaintiff, the Liberal Party of Australia (West Australian Division) Inc, in terms of its candidates' electoral signage, which was then under threat of removal by the City of Armadale ('the City').
Essentially, argument proceeded before the Chief Justice on Christmas Eve on the basis of the plaintiff invoking, as it does today, an asserted primacy against the City of the implied constitutional right of freedom of communication under the Australian Constitution and which the High Court has recognised, in a number of well known constitutional cases.
Today, there was no argument at all to me from the City challenging the existence of that implied freedom. Instead it seems from the materials before me now, that the City's solicitors were instructed to negotiate with the plaintiff, in an attempt to reach an interim arrangement, recognising a right to freedom in electoral communication, but, balancing that freedom against the asserted interests of the City in preserving the 'amenity' of its local district.
In an affidavit of Ian Finlay MacRae, sworn 17 January 2013 for the City, Mr MacRae says [18]:
The principal elements of the City's position are:
1.removal of the previous prohibition on electoral advertising and signage in what is the policy applied by reference to the City of Armadale's Town Planning Scheme LPP 4.2 as it is so referred;
2. permission without the requirement of planning approval of a reasonable amount and location of electoral signs for a reasonable time before and after an election; and
3. the requirement of planning approval for electoral signage beyond what is otherwise permitted.
Mr MacRae also said [19]:
The City is prepared to agree, for the purpose of the application for interlocutory injunction on 18 January 2013, not to take any action in regard to electoral signage for the 9 March state election already erected by 5.00 pm on 17 January.
Today, counsel for the City, Mr MacLeod, has not sought to engage against the existence and relevance of a constitutional right recognised in Australia to freedom of political communication: see for instance, this rights recognition and application in a context of electoral signage being protected, in Greene v Gold Coast City Council [2008] QSC 25 [16] (Daubney J). Mr MacLeod has merely sought to make points in terms potentially limiting the breadth of the interlocutory relief as is now sought in paragraph 1 of the plaintiff's minute of proposed orders.
The interlocutory injunctive orders sought by the plaintiff today would extend well beyond merely the Mount Nasura property so as to cover all electoral signage (not just that of the plaintiff) within the City that is affixed to private property by consent of the proprietor of land, until trial. The nature of what is sought today is therefore a wider interlocutory injunction in its applicability and scope than the interim injunction granted on Christmas Eve.
Today's application proceeds in circumstances where a State election is imminent, on 9 March 2013. But the electoral signage at issue is on any view, only of temporary character as regards candidates in that looming State election. No one suggests the signage is of a permanent nature.
I only received written submissions on behalf of the City this morning. They elaborate on what it just now offers in terms of an implementation, more correctly, a non‑implementation, of what is presently, the City's written policy concerning electoral signage. The policy sets down an absolute prohibition by the City against electoral signage in the locality of Armadale, even on privately owned land.
The City offers today not to interfere with any of the plaintiff's electoral signs, if they were in place by 5.00 pm yesterday. And as regards future signage, the offered position is that the City will only apply a modified policy in terms of regulatory constraints against electoral signs. That modified stance as articulated has not yet been approved by the council of the City. But, as I understand it, the approach that is now offered has been recommended by a relevant committee of the City in terms of insisting only on three remaining constraints the City would still seek to apply against electoral signs - leaving other electoral signage exempt from requiring planning approvals from the City. The first constraint is that there only be one sign per street frontage of every lot (two signs allowed on a corner lot with two frontages).
As to the second abiding constraint concerning the dimensions of signage proposed, I was shown a photograph of corflute signs affixed to the fence at the Mount Nasura property. I was told they were an area of about half a square metre. Therefore, what is proposed today by compromise is essentially a position by which the abiding requirement of the City for the approval of a sign or signs will be operative only, where the area of the sign exceeds effectively double what is the area of corflute signs that gave rise to the interim injunction application on 24 December 2012. For signs of an area greater than one square metre will still require permission from the City's personnel.
The City as its third abiding constraint requires that electoral signage on private property not be erected prior to 60 days before an election date. Relevantly, that timing window is already open at this point as regards the looming State election fixed for 9 March 2013. Furthermore, all electoral signage must be removed within 48 hours after an election.
These temporal constraints in effect will pose no real difficulties for this plaintiff although as is seen the orders sought today will extend in scope beyond merely the electoral signs of this plaintiff to cover all electoral signage.
What is apparent in today's concessions, as I have broadly summarised them from the City's written submissions of today, is essentially a stark retreat from the City's written policy which sets down an absolute prohibition against electoral signage. The present written policy, prohibiting all electoral signage, will not now be enforced I am told, on an interlocutory basis before trial.
(When I say prohibits all electoral signage, there is a small concession by the existing policy of the City allowing signage that is placed at polling booths on an election day.)
In a practical sense what this all means is that the breadth of the interlocutory injunctive order 1 in the plaintiff's minute of proposed orders, currently sought today is proposed to be qualified by the City, effectively by a proviso to be added to order 1. The proviso as now sought by the City would stipulate that a sign must not exceed one square metre in area and that there is not more than one such sign erected on each street frontage of any lot.
For its part, the plaintiff says these late offered modifications, or adjustments to its policy, by the amended position the City has indicated it is prepared to apply on an interlocutory basis, pending the trial and effectively then the looming State election, are still offensive to the freedom of communication and insufficient for various reasons, including that these are only indications as to the City's future position and that the concessions come too late in the piece. It is said the concessions have been cobbled together in circumstances where they may well clash with other provisions in the City's Town Planning Scheme as regards signage and may be discriminatory in terms of the assessment of electoral signage vis‑à‑vis other signage.
Evaluation
The extent of the regulatory control which the City still seeks to exert in terms of temporary electoral signage on private property (for signs greater than a square metre in area or to the extent that there is more than one sign on each lot) is still, in my assessment, a significant fetter against political communications in the lead up to the State election. This fetter in policy terms is grounded by the City only, it seems, upon what is said to be that of local 'amenity'.
I can accept there may, in proper circumstances based say, on health or safety considerations, a legitimate justification for some degree of constraint against temporary electoral signage. That is not this case. The only basis that is articulated today in justification for proposed continuing constraints against signage communications is local amenity. In my view that policy consideration fails to afford a sufficient degree of weight to the vital importance of political communications being made freely, in an electoral process which is an established part of the democratic processes applicable and expected in this State.
For reasons broadly in accord with those articulated by Kourakis J (as he then was), in Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334, 371 ‑ 375 (particularly [157]), Australia as a nation and Western Australia as a State, will forever place a high value upon the freedom to engage in political communications. Entities or organisations that perhaps unwittingly seek to fetter the freedom of political communication can expect to be called to account to explain a proper rationale for fetters they seek to impose against political communications, even if their measures only fetter in part, by requiring people to jump through bureaucratic hoops such as to obtain permissions or the like, in order to engage. Requiring a permission is a fetter as Kourakis J rightly explains at [159]. It may slow down an electoral communication. A fetter or fetlock inhibiting political communications under electoral signage properly made in a liberal democracy during an electoral process leading to a State election needs to be properly justified by considerations weightier than the mere temporary look of a local neighbourhood during an election campaign.
When I weigh the force of a protected freedom of communication against the range of fetters still sought to be applied by the City, in the now rather narrow parameters of the present dispute, I remain unsatisfied that there is a proper basis to add any proviso to order 1 of the plaintiff's minute of proposed orders, as is sought by the City. A proviso as to limiting electoral signs to greater than one square metre presents, to me, on the evidence as wholly arbitrary, in terms of why the chosen limit is to be one square metre. No better policy consideration manifests here than local amenity.
In weighing an overall balance of convenience at this time, I consider amenity must give way to democracy and the democratic process, at least for the duration of the looming election campaign. Therefore I would, at this point in time, on the evidence today assess the proposed fetters under a proviso as the area of a sign or signs, as inappropriate.
This is, as I indicated, only an interlocutory assessment: see Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57. The matter has not been determined finally. But in circumstances where today's application is urgent and the City's proposed residual constraints against the temporary electoral signs on private property constitute real fetters against free electoral communications that carry inherent importance in a lead up to State election, the choice is obvious. The residual fetters presently sought to be imposed by the City are not supportable. In present circumstances a prevailing balance of convenience, coupled with what I assess to be a strong, serious question or prima face case as is advanced by the plaintiff, supports interlocutory relief in terms now sought by the plaintiff. I will therefore make orders in these terms:
1.The defendant, whether by itself, its officers, servants, agents or otherwise be restrained, and an injunction granted restraining it, from removing any electoral signage situated within the City of Armadale erected on or affixed to private property with the consent of the registered proprietor or lessee (as the case may be) thereof until the trial of this action, or until further order.
2.The costs of the application be reserved.
3.The defendant have liberty to apply on 48 hours' notice to the plaintiff to dissolve or vary this injunction.
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