Muldoon v Melbourne City Council

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FEDERAL COURT OF AUSTRALIA

Muldoon v Melbourne City Council [2013] FCA 994

Citation: Muldoon v Melbourne City Council [2013] FCA 994
Parties: JAMES MULDOON and SARA LOUISE KERRISON v MELBOURNE CITY COUNCIL, KEN LAY CHIEF COMMISSIONER OF POLICE and STATE OF VICTORIA
File number: VID 1224 of 2011
Judge: NORTH J
Date of judgment: 1 October 2013
Catchwords:

HIGH COURT AND FEDERAL COURT – Jurisdiction of the Federal Court – Judiciary Act 1903 (Cth) s 39B(1A)(b) – matter arising under the Constitution or involving its interpretation – whether challenge to Council by-laws and regulations on the basis that they infringed the implied freedom of political communication gave rise to a matter arising under the Constitution or involving its interpretation

PRACTICE AND PROCEDURE – Representative proceeding – persons having the same interest – whether same interest – Federal Court Rules 2011 (Cth) rr 1.32, 8.21, 9.21

CONSTITUTIONAL LAW – Implied freedom of political communication – Council by-laws and regulations prohibited certain conduct in public gardens without permission and provided for the enforcement of those provisions – whether by-laws and regulations effectively burdened freedom of political communication –  whether by-laws and regulations were reasonably appropriate and adapted to achieving a legitimate end in manner compatible with system of representative and responsible government

HUMAN RIGHTS – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7, 15, 16, 32, 38 – freedom of expression – peaceful assembly – freedom of association – whether making of Council by-laws and regulations was incompatible with a human right – whether actions taken under Council by-laws and regulations were incompatible with a human right
Legislation: Constitution ss 7, 24, 128
Judiciary Act 1903 (Cth) ss 39B, 78A
Administrative Law Act 1978 (Vic) s 8
Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7, 15, 16, 32, 38
Crown Land (Reserves) Act 1978 (Vic) s 13
Local Government Act 1989 (Vic) s 111
Subordinate Legislation Act 1994 (Vic) s 5
Federal Court Rules 2011 (Cth) rr 1.32, 8.21, 9.21
Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations 1994 (Vic)
Melbourne City Council Activities Local Law 2009
Cases cited: Attorney-General (SA) v Corporation of the City of Adelaide (2013) 295 ALR 197; [2013] HCA 3
Annetts v McCann (1990) 170 CLR 596
APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Batty v City of Toronto (2011) 108 OR (3d) 571
Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386
Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398
CECA Institute Pty Ltd v Australian Council for Private Education & Training (2010) 30 VR 555
City of London Corporation v Samede [2012] 2 All ER 1039
City of Vancouver v Zhang (2010) 325 DLR (4th) 313
Clark v Community for Creative Non-Violence, 468 US 288 (1984)
Coleman v Power (2004) 220 CLR 1
Corporation of the City of Adelaide v Corneloup
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Details
Case
[2013] FCA 994
Decision Date

CaseChat Overview and Summary

The case of Muldoon v Melbourne City Council involves a challenge by the applicants, Muldoon and another, against the enforcement actions taken by the Melbourne City Council and the police in relation to the Occupy Melbourne protest. The applicants sought various declarations and injunctions arguing that the Council's actions and the police enforcement of the Local Laws and Regulations were unlawful and violated their rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The applicants claimed that the Local Laws and Regulations, which regulated the use of public spaces, impermissibly burdened their implied freedoms of political communication and association under the Commonwealth Constitution and were incompatible with their Charter rights.

The legal issues before the court included whether the Local Laws and Regulations, as applied to the Occupy Melbourne protest, were valid under the powers conferred on the Council by the Local Government Act 1989 (Vic) and the Crown Land (Reserves) Act 1978 (Vic). The court had to determine if the Local Laws and Regulations, and the actions taken under them, were compatible with the implied freedoms of political communication and association under the Commonwealth Constitution and the Charter rights. The applicants argued that the Council failed to properly consider their Charter rights as required by s 38 of the Charter when deciding to enforce the Local Laws.

The court found that the Local Laws and Regulations were validly made under the relevant Acts. The court held that the Local Laws and Regulations, as applied to the Occupy Melbourne protest, did not impermissibly burden the implied freedoms of political communication and association or violate the Charter rights. The court rejected the applicants' argument that the Council failed to properly consider their Charter rights, finding that the Council had taken into account relevant factors such as the potential damage to the gardens, the rights of other users, and the visual impact of the protest. The court concluded that the police enforcement of the Local Laws and Regulations was also valid as the Local Laws and Regulations were lawful.

As a result, the court dismissed the applicants' claims and made orders declaring certain notices to comply invalid, refusing the application to amend the originating application and dismissing the proceeding. The court reserved the question of costs as it was not argued. The applicants' case against the lawfulness of the police action was found to be unsustainable as their claims against the validity of the Local Laws and Regulations were rejected.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Chief Commissioner relied on the affidavits of Peter Anthony O’Neill, sworn on 17 February 2012 and 15 March 2012. Superintendent O’Neill was in charge of the police operation. He gave a detailed account of the preparations for the police support of the Council officers in the enforcement of the provisions. He also chronicled the observations made by officers of Victoria Police of the actions of the protesters. He was not cross-examined.THE FACTS The philosophy of the Occupy Movement The Occupy Melbourne protest was inspired by the Occupy Wall Street protest which commenced in September 2011. The New York protest sparked many similar protests in cities throughout the world including, in the United Kingdom in London, in Canada in Toronto, Vancouver, and Calgary, in New Zealand in Auckland, and in the United States, in Boise, Augusta, Columbia, Minneapolis and Fort Myers. Occupy Melbourne is a protest against economic inequality that exists within Australian society and the world. It is also a protest against the existing structures and operation of government in Australia on the basis that they are overly influenced by large corporations and professional political parties, and that these organisations fail to represent the interests of ordinary citizens. Those who follow Occupy Melbourne believe that the Australian democratic processes are ineffective and need to be reformed. Occupy Melbourne intends to build a functional grassroots democratic form of governance in Australia. The mode of protest of Occupy Melbourne The primary mode of protest used by Occupy Melbourne was for protesters to maintain a continuous presence in public spaces. This mode of protest allowed the protesters to continually convey the political message to the public. The occupation of public space was part of the political message because it allowed the protesters to enact and demonstrate the alternative political and governmental structures it sought to promote for Australia. All decisions were made in public in a general assembly. Any person was entitled to attend and vote at the general assembly. It operated on a consensus decision making model. Occupy Melbourne had working groups which performed functions relevant to the organisation including media, logistics, kitchen, education, first aid and care, womens’ group, facilitation and community outreach. Occupy Melbourne has a presence in social media and on the internet. For instance, on 7 December 2011, 13,335 people indicated on Facebook that they liked the Occupy Melbourne Facebook page, and 2,141 indicated they were talking about the page. On the same day 6,061 people indicated that they followed Occupy Melbourne on Twitter. Up to that day the Occupy Melbourne website had been visited 251,721 times. On 6 December 2011 alone it was visited 4,776 times. The start of the protest Although the events with which this proceeding is concerned commenced on 2 November 2011, it is useful to record the lead up to those events to show the context in which they occurred.

Evidence

Evidence Before The Court

The final form of the claims made by the applicants appear in the Fourth Further Amended Originating Application as set out below. There is an outstanding application for leave to amend by adding [2(c)] and [6(c)]. The applicants claim:1.A declaration that the issue of each Notice was ultra vires the powers conferred on an authorised officer under the Local Law, by reason that the authorised officer could not lawfully or reasonably have suspected the conduct described in the Notice to be prohibited by cll 2.11 and/or 4.6 of the Local Law;2.Declarations that the issue, the threat to act upon, and the enforcement of each notice to comply contained in Annexure SK-2 and SK-3 to the affidavit of Sara Louise Kerrison affirmed 14 December 2011 was ultra vires the powers conferred on an authorised officer under the Local Law, by reason that:(a)cll 2.11, 4.6 and/or 14.12 to 14.24 of the Local Law, insofar as they apply to the Protest [which was defined to mean the various assemblies of persons who have since 2 November 2011 gathered at the Treasury Gardens, Gordon Reserve and the Flagstaff Gardens, Melbourne, being the assemblies known as, and indentified by the persons participating in them as, the Occupy Melbourne movement] and to the Protesters [which was defined to mean each person who has been a participant in one or more of the various assemblies constituting the Protest] , impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution;(b)such actions were incompatible with one or both of the Charter rights [the right to freedom of expression and the right to peaceful assembly and freedom of association described in ss 15(2) and 16 respectively of the Charter]; and(c)the decisions to issue and act upon the said notices to comply were made without proper consideration of the Charter rights as required by s 38 of the Charter. 3.Declarations that the making of each of cll 2.11 and 4.6 of the Local Law and/or 14.12 to 14.24 of the Local Law, insofar as they apply to the Protest and the Protesters, was ultra vires the powers conferred on the First Respondent under s 111 of the Local Government Act 1989 (Vic), by reason that:(a)the clauses impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution; and(b)such action was incompatible with one or both of the Charter rights. 3A.A declaration that s 111 of the Local Government Act 1989 (Vic) is invalid to the extent that:(a)cll 2.11 and 4.6 and cll 14.12 to 14.24 of the Local Law apply to the Protest and the Protesters; and(b)the Local Law contains those clauses. 4A.A declaration that the enforcement activities undertaken in the Applicable Area [Flagstaff Gardens] by the First Respondent and/or its Relevant Persons [Council officers] purportedly pursuant to or in reliance upon the Regulations, being the conduct described in paragraphs 93 to 99 of the affidavit of Sara Kerrison affirmed on 14 December 2011 and paragraphs 34 and 60 of the affidavit of Sara Kerrison affirmed on 6 March 2012, were unlawful, by reason that the Regulations were not in force at the times that those enforcement activities were undertaken. 5.Declarations that the enforcement activities undertaken by the First Respondent and its Relevant Persons in the Applicable area and described in paragraph 4A above were ultra vires the powers conferred on Appointed Officers under the Regulations, by reason that:(a)regs 18, 21 and/or 33 and 34(3) of the Regulations, insofar as they apply to the Protest and to the Protesters, impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution; and(b)such activities were incompatible with one or both of the Charter rights. 6.Declarations that the making of regs 18, 21, 33 and 34(3) of the Regulations, insofar as they apply to the Protest and the Protesters, was ultra vires the powers conferred on the First Respondent under s 13 of the Crown Land (Reserves) Act 1978 (Vic), by reason that:(a)the clauses impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution; (b)such action was incompatible with one or both of the Charter rights; and(c)the decisions to engage in the enforcement activities were made without proper consideration of the Charter rights as required by s 38 of the Charter. 6A.A declaration that s 13 of the Crown Land (Reserves) Act 1978 (Vic) is invalid to the extent that:(a)cll 18, 21 and/or 33 and 34(3) of the Regulations apply to the Protest and the Protesters; and(b)the Regulations contains those clauses. 6B.Declarations that:(a)in purportedly issuing the Notices, and/or the other notices contained in Annexure SK-2 and SK-3 to the affidavit of Sara Kerrison affirmed on 14 December 2011, and in conducting activities purportedly to enforce the said notices, officers of the First Respondent were not performing their duties within the meaning of s 224(8) of the Local Government Act 1989 (Vic); and(b)in engaging in certain activities in the Applicable area, purportedly to enforce the Regulations – as described at paragraph 93 to 99 of the affidavit of Sara Kerrison affirmed on 14 December 2011 and paragraphs 34 and 60 of the affidavit of Sara Kerrison affirmed on 6 March 2012, officers of the First Respondent were not performing their duties within the meaning of s 224(8) of the Local Government Act 1989 (Vic).(c)s 458(1) of the Crimes Act 1958 (Vic) did not authorise Victorian police officers to apprehend protesters in reliance upon s 224(8) of the Local Government Act 1989 (Vic) in relation to the notices and activities set out in sub-paragraphs 6B(a) and (b) above. Injunctions7.An injunction restraining the First Respondent and its Relevant Persons from acting under or pursuant to cll 2.11 and 4.6 of the Local Law insofar as those provisions apply to the Protest and the Protesters.8.An injunction restraining the First Respondent and its Relevant Persons from acting under or pursuant to cll 14.12 to 14.24 of the Local Law, insofar as those provisions apply to cll 2.11 and 4.6 of the Local Law in relation to the Protest and the Protesters. 9.In the alternative, an injunction restraining the First Respondent and its Relevant Persons from acting under or pursuant to cll 14.12 to 14.24 of the Local Law, insofar as those provisions apply to cll 2.11 and 4.6 of the Local Law in relation to the Protest and the Protesters.10.An injunction restraining the First Respondent and its Relevant Persons from acting under or pursuant to regs 18, 21, 33 and 34(3) of the Regulations, insofar as those regulations apply to the Protest and the Protesters. THE EVIDENCE

Decision

Reasons for decision

In the event, nothing turns on that circumstance because the applicants’ case against the lawfulness of the police action is unsustainable. Their case depends on the invalidity of the impugned Local Laws and the impugned Regulations. These reasons for judgment have explained that those provisions are valid. Consequently, the arrests were also valid. CONCLUSION For these reasons, there will be a declaration that the notice to comply issued under the impugned Local Laws to the second applicant on 18 November 2011 and the two notices to comply issued to the second applicant on 28 November 2011 are invalid. There will also be orders that the proceeding not continue as a representative proceeding, that the application to amend the Fourth Further Amended Originating Application by adding [2(c)] and [6(c)] be refused and that the application be otherwise dismissed. As the question of costs was not argued, that question is reserved.

Ratio Decidendi

Legal Principle Established

The applicants claimed relief including the following:1.A declaration that subsection 46(3) of the World Youth Day Act 2006 (NSW) (“the Act”) is invalid and of no effect as it impermissibly burdens the implied freedom of communication on matters of government or politics arising under the Commonwealth Constitution.2.A declaration that clause 4 of the World Youth Day Regulation 2008 (NSW) as amended (“the Regulation”) is invalid and of no effect as it:(a)impermissibly burdens the implied freedom of communication on matters of government or politics arising under the Commonwealth Constitution; and/or(b)is ultra vires the Act.3.A declaration that clause 7 of the Regulation is invalid and of no effect as it:(a)impermissibly burdens the implied freedom of communication on matters of government or politics arising under the Commonwealth Constitution; and/or(b)is ultra vires the Act.[Emphasis added] The Court at [36] defined the issues for determination as follows:1.Whether s 46(3) of the WYD Act, read with cl 4 of the Regulation, impermissibly burdens the implied freedom of political communication under the Constitution. 2.Whether cl 4 of the Regulation is within the scope of the power conferred by the WYD Act to prescribe items for the purposes of s 46(3). 3.Whether items of a kind that the applicants propose to distribute are within a valid prohibition effected by cl 4 of the Regulation.4.Whether cl 7 of the Regulation impermissibly burdens the implied freedom of political communication. 5.Whether cl 7 of the Regulation is within the regulation making power conferred by s 58 of the WYD Act.[Emphasis added] In relation to the procedural limb of s 38(1) which requires a public authority to give proper consideration to a relevant human right in making a decision, the applicants submitted that the evidence of Mr Schwarz demonstrated that there was a no tolerance policy to breaches of the impugned Local Laws. Whilst Mr Schwarz took into account such matters as the potential damage to the gardens, the rights of other users, and the visual impact of the protest, he did not take into account the protesters’ Charter rights. Yet, under s 38(1), the Council was bound to take proper consideration of those rights into account when deciding to enforce the impugned Local Laws. The applicants then argued that cl 2.11, cl 4.6 and cl 14.13 of the Local Law limited their Charter rights of freedom of expression, peaceful assembly and freedom of association. The limitation was described in the written submissions thus:As the objects of the Local Law make clear, it is directed at controlling the use of public space. As explained above, cll 2.11, 4.6 and 14.13 of the Local Law, taken cumulatively, have the effect of allowing Council officers to stifle a protest without any opportunity for effective judicial review. In the usual course protests involve the use of political signs. Where a protest continues 24 hours a day for longer than a few days, it will necessarily involve basic amenities of life – a tent, food and first aid. But cl 14.13 of the Local Law empowers Council officers to issue notices to comply to require the removal of tents, signs and “other things”, based only on a “reasonable suspicion”. Failure to comply with such notices is an offence. As this proceeding has demonstrated, the practical reality is that, by the time there is any opportunity for judicial review, the service of the Notices to Comply and the engagement in the Enforcement Activities will have been effective in stifling the protest. Indeed, the Council has previously submitted in court that the Notices and Enforcement Activities are “exhausted”, and cannot be the subject of judicial review.