Muldoon v Melbourne City Council

[2013] FCA 994

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 (4^th) 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 (2011) 110 SASR 334
Evans v New South Wales (2008) 168 FCR 576
FAI Insurances Limited v Winneke (1982) 151 CLR 342
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
Kioa v West (1985) 159 CLR 550
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Levy v Victoria (1997) 189 CLR 579
Mayor of London (on behalf of the Greater London Authority) v Hall [2011] 1 WLR 504
Monis v The Queen (2013) 295 ALR 259; [2013] HCA 4
No 2 Pitt Street Pty Ltd v Wodonga Rural City Council [1999] 3 VR 439
O’Flaherty v City of Sydney Council (2013) FCR 484
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
R v Connell: Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Simjase Pty Ltd v City of Melbourne [1990] VR 350
Sunol v Collier (No 2) (2012) 289 ALR 128; [2012] NSWCA 44
Victoria v Commonwealth (1996) 187 CLR 416
Vines v Djordjevitch (1955) 91 CLR 512
Wainohu v New South Wales (2011) 243 CLR 181
Weisfeld v The Queen [1995] 1 FC 68
Wotton v Queensland (2012) 246 CLR 1

Date of hearing:

21, 22, 23, 26, 28 and 30 March 2012, 5 April 2012 and 4 May 2012

Date of last submissions:

9 July 2013

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

468

Counsel for the Applicants:

Mr R Merkel QC with Mr E Nekvapil, Mr N Wood and Mr R Watters

Solicitor for the Applicants:

Fitzroy Legal Service

Counsel for the First Respondent:

Mr R Niall SC with Mr R Attiwill

Solicitor for the First Respondent:

Hunt and Hunt Lawyers

Counsel for the Second and Third Respondents:

Mr O P Holdenson QC with Mr R Gipp

Solicitor for the Second and Third Respondents:

Victorian Government Solicitor's Office

Counsel for the intervener:

Mr S Donaghue SC with Mr A Pound and Ms J Davidson

Solicitor for the intervener:

Victorian Government Solicitor's Office

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1224 of 2011

BETWEEN:

JAMES MULDOON
First Applicant

SARA LOUISE KERRISON
Second Applicant

AND:

MELBOURNE CITY COUNCIL
First Respondent

KEN LAY CHIEF COMMISSIONER OF POLICE
Second Respondent

STATE OF VICTORIA
Third Respondent

JUDGE:	NORTH J
DATE OF ORDER:	1 OCTOBER 2013
WHERE MADE:	MELBOURNE

THE COURT DECLARES THAT:

The notice to comply issued by the first respondent under the Melbourne City Council Activities Local Law 2009 (the Local Law) to the second applicant on 18 November 2011 and the two notices to comply also issued by the first respondent under the Local Law to the second applicant on 28 November 2011 are invalid.

AND THE COURT ORDERS THAT:

1.The proceeding not continue as a representative proceeding.

2.The application to amend the Fourth Further Amended Originating Application by adding [2(c)] and [6(c)] is refused.

3.The application is otherwise dismissed.

4.Costs are reserved.   

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth). 

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1224 of 2011

BETWEEN:

JAMES MULDOON
First Applicant

SARA LOUISE KERRISON
Second Applicant

AND:

MELBOURNE CITY COUNCIL
First Respondent

KEN LAY CHIEF COMMISSIONER OF POLICE
Second Respondent

STATE OF VICTORIA
Third Respondent

JUDGE:	NORTH J
DATE:	1 OCTOBER 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[1]
THE ACTS AND REGULATIONS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[9]
The Local Law........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[11]
The Regulations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[19]
THE CLAIMS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[22]
THE EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[23]
THE FACTS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[27]
The philosophy of the Occupy Movement........ ........ ........ ........ ........ ........ ........ ........ .......	[27]
The mode of protest of Occupy Melbourne........ ........ ........ ........ ........ ........ ........ ........ .....	[29]
The start of the protest........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[33]
Permit applications........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[40]
The protest at Treasury Gardens........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[48]
The protest at Flagstaff Gardens........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[57]
Signs........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[65]
The enforcement activities under the Regulations........ ........ ........ ........ ........ ........ ........ ..	[67]
The reason for the Council’s actions........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[70]
OVERVIEW........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[78]
JURISDICTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[79]
The subject matter of the proceeding........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[79]
The submissions in chief of the applicants........ ........ ........ ........ ........ ........ ........ ........ .......	[90]
Submissions of the respondents and the Attorney-General........ ........ ........ ........ ........ ...	[100]
The submissions in reply of the applicants........ ........ ........ ........ ........ ........ ........ ........ ......	[116]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[120]
REPRESENTATIVE CAPACITY AND STANDING........ ........ ........ ........ ........ ........ ....	[136]
Representative capacity........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[136]
Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[136]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[155]
The Same Interest........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[155]
The Temporal Question........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[164]
Discretion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[173]
Standing........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[187]
SUNSETTING........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[192]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[202]
THE CONSTRUCTION OF CLAUSE 2.11 AND CLAUSE 4.6 OF THE LOCAL LAW........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[216]
The clause 2.11 notices........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[219]
The clause 4.6 notices........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[229]
The clause 2.11 and clause 4.6 notices........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[242]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[244]
THE CONSTITUTIONAL IMPLIED FREEDOM OF POLITICAL COMMUNICATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[245]
Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[245]
The submissions of the applicants........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[247]
The permission regime........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[252]
Less drastic means........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[268]
The challenge to cl 14.13 of the Local Law........ ........ ........ ........ ........ ........ ........ ........ ...	[275]
Implied freedom of association........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[284]
A distributive operation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[285]
The submissions of the Council........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[289]
The permission regime........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[298]
Wotton applies........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[306]
The potential for delay........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[308]
Supplementary submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[309]
The submissions of the Attorney-General........ ........ ........ ........ ........ ........ ........ ........ ........	[321]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[351]
The first Lange question........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[353]
Did the impugned provisions burden a communication?........ ........ ........ ........ ........ ......	[354]
Is this the type of communication which the Constitution protects?........ ........ ........ .....	[361]
Did the applicants wrongly focus on the terms, operation or effect of the impugned provisions on their protest rather than on the terms, operation or effect of the impugned provisions on the freedom to communicate on political matters?........ ........	[362]
Was the burden of the impugned provisions an ‘effective’ burden?........ ........ ........ .....	[368]
The second Lange question........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[376]
The limited restriction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[384]
The permission regime........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[385]
Less drastic means........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[407]
The enforcement provisions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[413]
THE CHARTER........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[417]
The submissions of the applicants........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[417]
The submissions of the Council........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[434]
The submissions of the Attorney-General........ ........ ........ ........ ........ ........ ........ ........ ........	[442]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[450]
THE LAWFULNESS OF THE ACTION TAKEN BY THE POLICE........ ........ ........ ..	[454]
CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[467]

INTRODUCTION

1. This proceeding arises out of the occupation of public gardens close to the centre of the City of Melbourne by a group called Occupy Melbourne and out of the response by the authorities to those actions.  In November 2011 the group occupied Treasury Gardens, and briefly, Gordon Reserve.  In December 2011 the group occupied Flagstaff Gardens.

2. The occupation was meant as a protest against economic inequality and the structures and operation of the present system of government.  It is part of a world wide movement which shares the same philosophy and method of protest. 

3. The applicants are involved with Occupy Melbourne and have been present for most of the time when the actions of the authorities were taken against the protesters.  They seek to sue in a representative capacity.  The first applicant seeks to represent the people who participated in the protest gatherings.  The second applicant seeks to represent protesters against whom action was taken by the authorities.

4. The Melbourne City Council, the first respondent (the Council) is the local authority responsible for the administration of the public spaces in the City of Melbourne.  Delegated legislation made by the Council under statutory powers restricted camping in tents, including in Treasury Gardens, Gordon Reserve and Flagstaff Gardens, restricted what items might be brought into the gardens, and provided mechanisms for the enforcement of the provisions.  In respect of Flagstaff Gardens, the Council and the Minister for Conservation and Environment, as trustee, also made regulations in respect of similar matters.

5. The applicants claim that the enforcement of these provisions by the Council against the protesters was the main reason that the protest had to be called off.  They contend that the statutory scheme and the enforcement action taken under it were unlawful.  They seek declarations that the authorising statutes, the delegated legislation made under them, and the enforcement actions were unlawful, and they further seek injunctions restraining the Council from using the provisions against the protesters. 

6. The Chief Commissioner of Police, the second respondent (the Chief Commissioner) commands the Victorian Police.  The applicants asserted that Victoria Police assisted the Council in its enforcement of the provisions. 

7. The State of Victoria is the third respondent.  It has an interest in the proceeding because the delegated legislation which was enforced against the protesters was made under the authority of statutes made by the Parliament of Victoria. 

8. The Attorney-General for the State of Victoria, (the Attorney-General), appeared as an intervener in response to service by the applicants of a notice under s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act) notifying that the proceeding involves a matter arising under the Constitution or involving its interpretation. The Attorney-General also intervened pursuant to s 34 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) which provides that the Attorney-General may intervene in any proceeding in which a question of law arises that relates to the application of the Charter.

   THE ACTS AND REGULATIONS

1. The legislation and delegated legislation governing the use of the gardens is of central importance to the issues raised in the proceeding. 

2. Section 111(1) of the Local Government Act 1989 (Vic) (the Local Government Act) provides:

   A Council may make local laws for or with respect to any act, matter or thing in respect of which the Council has a function or power under this or any other Act.

   The Local Law

3. Pursuant to that statutory power the Council made the Melbourne City Council Activities Local Law 2009 (the Local Law) which applies to Treasury and Flagstaff Gardens and the Gordon Reserve and relevantly includes:

   2.11Unless in accordance with a permit, a person must not camp in or on any public place in a vehicle, tent, caravan or any type of temporary or provisional form of accommodation.

   4.6Unless:

   (a)       in accordance with a permit; or

   (b)to do so is specifically authorised by and in accordance with the Melbourne Planning Scheme or a planning permit issued under it,

   a person must not place or erect a portable advertising sign or other thing in, on or over a public place or allow that to occur.
   [Emphasis added]

4. Advertising sign is defined in cl 1.11 as including:

   [A]ny letter, figure, symbol, device, poster, sign, banner or message used for notifying:

   (a)       the existence of the sale or use of any goods or services; or

   (b)the holding of an event or function; or

   (c)the promotion of any person, company, organisation or thing.

   [Emphasis added]

5. Clause 13.1 provides:

   Where in this Local Law a person is prohibited from doing a thing “unless in accordance with a permit”, a person who does the thing which is prohibited to be done without first obtaining a permit from the Council under this Part is guilty of an offence.

6. Clause 13.2 provides:

   The Council may grant a permit subject to such conditions as it thinks fit.

7. One method of enforcement provided by the Local Law is for the giving of a direction as follows:

   14.12An authorised officer may either orally or in writing direct a person to leave a public place if in the opinion of the authorised officer the person is failing to comply or has failed to comply with this Local Law.

8. Another method of enforcement provided by the Local Law is for the issue of a notice to comply.  The relevant clauses applicable to this procedure are as follows:

   14.13Either as an alternative or in addition to an infringement notice, an authorised officer may serve a Notice to Comply under this clause on a person who the authorised officer reasonably suspects to be in breach of this Local Law.

   14.14A Notice to Comply under clause 14.13 must be in writing and in a form approved by the Council.

   14.15A Notice to Comply under clause 14.13 may do one or more of the following things:

   (a)direct the person to comply with the Local Law;

   (b)direct the person to stop the conduct which constitutes the breach of the Local Law;

   (c)direct the person to deliver up to the authorised officer or to some specified person or some specified location any item or property of the person which constitutes the breach of the Local Law;

   (d)direct the person to remove or cause to be removed any item, goods, equipment or other thing that constitutes a breach of the Local Law;

   (e)direct the person to leave an area within the time specified in the notice that constitutes a breach of the Local Law.

   14.16A Notice to Comply under clause 14.13 must specify the time and date by which the person specified in the Notice to Comply must comply with the directions in clause 14.15.

   14.17The time required by a Notice to Comply under clause 14.13 must be reasonable in the circumstances having regard to:

   (a)the amount of work involved; and

   (b)the degree of difficulty; and

   (c)the availability of necessary materials or other necessary items; and

   (d)climatic conditions; and

   (e)the degree of risk or potential risk; and

   (f)any other relevant factor.

   14.18A person served with a Notice to Comply under clause 14.13 must comply with a direction contained in the notice.

   [Emphasis added]

9. Clauses 14.19 to 14.24 then provide:

   14.19Any authorised officer may in urgent circumstances arising as a result of a failure to comply with this Local Law, take action to remove, remedy or rectify a situation without the necessity to serve a Notice to Comply provided:

   (a)he or she considered the circumstances or situation to be sufficiently urgent and that the time involved or difficulties associated with the serving of a Notice to Comply, may place a person, animal, property or thing at risk or in danger; and

   (b)details of the circumstances and remedying action are forwarded as soon as practicable to the person on whose behalf the action was taken. 

   14.20The action taken by an authorised officer under 14.19 must not extend beyond what is necessary to cause the immediate abatement of or to minimise the risk or danger involved. 

   14.21Where a person owning or responsible for items, goods and equipment has ignored a direction from an authorised officer to remove them, the items, goods, equipment or other property or thing may be confiscated and impounded.

   14.22If an authorised officer has confiscated anything in accordance with this Local Law, the Council may refuse to release it until the appropriate fee or charge for its release has been paid to the Council.

   14.23As soon as it is reasonably practicable to do so, the authorised officer must serve a written notice in a form that is prescribed by the Council from time to time on the owner or person responsible for the confiscated item setting out the fees and charges payable and time by which the item must be retrieved.

   14.24If after the time required in a notice a confiscated item is not retrieved, an authorised officer may take action to dispose of the confiscated item according to the following principles:

   (a)where the item has no saleable value, it may be disposed of in the most economical way; and

   (b)where the item has some saleable value the item may be disposed of either by tender, public auction or private sale but failing sale may be treated as in sub-clause (a);

   (c)where the owner has advised the Council in writing that the Council may dispose of the goods because he or she does not intend to retrieve them, the Council may dispose of them by the method identified in sub-clauses (a) and (b).

10. Most of the discussion concerning the Local Law in these reasons for judgment relate to cll 2.11, 4.6 and 14.13 of the Local Law.  These provisions together will be referred to as the impugned Local Laws.  

    The Regulations

11. Flagstaff Gardens are not only subject to the statutory power in the Local Government Act, but also to the statutory power contained in the Crown Land (Reserves) Act 1978 (Vic) (the Crown Land Reserves Act). A general regulation making power is provided in s 13(1)(a) as follows:

    (1)Where any land has been reserved under this Act-

    (a)       the trustees thereof or the Minister and the trustees (as the case may be) with the approval of the Governor in Council;

    …

    may make regulations for and with respect to-
    [a series of items about which no point is taken in this case]

12. On 12 January 1995, the Minister for Conservation and Environment and the Council, as trustee, with the approval of the Governor on the advice of the Executive Council, made the Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations (1994) (Vic) (the Regulations) which applied to Flagstaff Gardens and which included prohibitions on camping with tents and ancillary provisions as follows:

    18.A person must not in a Reserve, without the written consent of the Committee or Appointed Officer-

    (a)use, erect or cause to be used or erected any booth, kiosk, tent or other temporary building or structure; or

    (b)erect any temporary building, enclosure, tent or structure for public entertainment, exhibition or meeting purposes and charge for admittance.

    21.A person must not in a Reserve, without the written consent of the Committee or Appointed Officer, bring in or use any caravan, structure, tent, trailer or vehicle for camping purposes.

    32.(1)       The Committee or an Appointed Officer may issue a permit or consent for any purpose (for which consent is required under these Regulations).

    (2)       A permit or consent given under these Regulations authorises the holder to enter and use the Reserve for the purpose specified, for the period specified and subject to the terms, conditions and fees, consistent with these Regulations, as the Committee or an Appointed Officer may from time to time determine either generally or in a particular case.

    (3)       Where a person is in contravention of any condition of a permit or consent given by the Committee or Appointed Officer under these Regulations, the permit or consent may be cancelled or amended as required by the Committee or Appointed Officer.

    33.A person in a Reserve must comply with any reasonable direction of an Appointed Officer.

    …

    34.(3)       An Appointed Officer may remove or cause to be removed any tent, caravan or other structure which –

    (a)has been placed in a Reserve without written consent; or

    (b)in the opinion of the Appointed Officer has been abandoned in a Reserve;

    and store such property at an appropriate location.

    …

    (6)In the case of property removed in accordance with this regulation the Committee or an Appointed Officer must within 48 hours –

    (a)contact the owner, if known, and make arrangements for him or her to claim that property; or

    (b)if the owner is not known, display a notice at a suitable location at or near where the property was found detailing –

    (i)the name of the Appointed Officer responsible for the removal of the property; and

    (ii)a contact telephone number for the Appointed Officer; and

    (iii)reference to the relevant Regulations; and

    (iv)a period of time, not less than 7 days, from the date of the notice for the owner to claim and remove the property.

    [Emphasis added]

13. Most of the discussion in these reasons for judgment concerning the Regulations relate to cl 21 and cl 34 of the Regulations.  These provisions together will be referred to as the impugned Regulations.

    THE CLAIMS

14. 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.

    Injunctions

    7.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

15. The applicants relied on the affidavits of James Muldoon, the first applicant, affirmed on 12 December 2011 and 6 March 2012, and the affidavits of Sara Louise Kerrison, the second applicant, affirmed 14 December 2011 and 6 March 2012.  Both applicants were cross-examined.  The applicants also relied on the affidavit of Jeffrey Ronald Reinten affirmed 12 December 2011.  He was not cross-examined.

16. The first applicant gave evidence principally about the ideas behind the Occupy Movement, and some evidence about the events which made up the protest and the response by the Council.  The second applicant gave more detailed evidence about how the protest was conducted and the way the Council acted which brought the protest to an end.  Mr Reinten’s affidavit concerned some of the events of the protest, and the way the actions of the Council interfered with the protest. 

17. The Council relied on the affidavit of Samuel Benjamin Schwarz, the Manager of Parking and Traffic of the Council, affirmed on 20 February 2012.  Mr Schwarz was cross-examined.  The evidence of Mr Schwarz mainly concerned the enforcement of the provisions by the Council.  The Council also relied on the affidavits of Ian Gordon Shears, the Manager of Urban Landscapes Branch of the Council, affirmed on 17 February 2012, and 16 March 2012.  Mr Shears’ affidavits described the functions of the Council and its strategies and policies applicable to the protection, preservation and regulation of the equitable use of the gardens.  Mr Shears was not cross examined.

18. 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

19. 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. 

1. 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

2. 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. 

3. 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. 

4. 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. 

5. 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

6. 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. 

7. On 10 October 2011, Victoria Police learned of the plan for an Occupy Melbourne rally to be held at City Square on 15 October 2011 and they commenced preparations for that event.  The rally was attended by about 400 people.  The City Square protest continued for six days.  There were about 100 to 150 people present at the protest during the day and 50 people at night.  A kitchen was established and generators were brought to the site. 

8. On 20 October 2011, the Council formally requested Victoria Police to evict the protesters from the City Square.  Late in the afternoon on 20 October 2011, Inspector Bernie Jackson of Victoria Police addressed the general assembly of Occupy Melbourne.  He told them of the decision of the Council that the protesters were to be evicted from the City Square if they did not leave, and that Victoria Police would assist the Council. 

9. The next morning the Council officers served a number of notices to comply which required the removal of tents and other structures within about an hour.  The protesters then numbering about 80 to 100 commenced preparations to resist by building barricades out of milk crates and by collecting rocks and bottles filled with white or yellow liquid.  Through the morning Council officers removed tents and equipment.  Victoria Police gave the protesters further directions to leave.  At about 12.40 pm the protesters were forcibly removed.  Then, about 250 protesters sat on the roadway at the intersection of Swanston and Collins Streets.  At 1.30 pm the police forcibly removed the protesters from the intersection because they were causing major traffic disruption and the police were concerned that the situation might escalate because members of the public were becoming irate at the traffic jams.  The protesters, then numbering about 300, assembled about 50 metres further along Swanston Street in front of Melbourne Town Hall.  The police directed the protesters to leave and some protesters were arrested.  They again regrouped at the intersection of Bourke and Swanston Streets and blocked traffic by linking arms.  About 105 protesters were arrested at this point.  Negotiations were then conducted which resulted in the protesters, then numbering about 200, agreeing to leave and march to the State Library. 

10. On 29 October 2011, the protesters gathered at the State Library, moved to City Square, and then onto Treasury Gardens.  There were about 400 to 500 protesters at Treasury Gardens.  In the afternoon the protesters left Treasury Gardens and marched down Spring Street.  By then there were about 1000 protesters marching. 

11. The protest continued over the next few days in the City of Melbourne and commenced at Treasury Gardens again on 2 November 2011.  It is at this time that the events with which the proceeding is concerned commenced. 

12. Occupy Melbourne made a number of applications to the Council for permission to occupy the gardens.  Although the applications were first made shortly after the start of the occupation of Treasury Gardens, it is convenient to refer to them now before describing that occupation.

    Permit applications

13. On 4 November 2011, Occupy Melbourne lodged two applications for a permit apparently under cll 2.11 and 4.6 of the Local Law.  These were superseded by an application lodged on 8 November 2011. 

14. The application lodged on 8 November 2011 was refused on 11 November 2011. 

15. Then Occupy Melbourne lodged a further application on 17 November 2011, which was refused on 24 November 2011. 

16. The way in which the applications were made and determined is relevant to the practical effect and operation of cll 2.11 and 4.6 of the Local Law.  The application dated 8 November 2011 was determined on 11 November 2011 by Mr Cutter who was the Director of City Business.

17. The application sought a permit from 8 November 2011 until 31 December 2011 with an indication that it may need to be extended for the continuation of the protest.  The application stated in part:

    Estimated numbers:  Occupy Melbourne has a fluctuating community based membership.  It tends to be larger on weekends, at general assemblies, and at special marches organised to publicise the key messages of Occupy Melbourne.  Between 30 and 100 people have maintained an overnight presence as a part of Occupy Melbourne; however this number is subject to change according to the changes in the social movement.  General Assemblies, which last approximately 2 hours, have seen numbers swell to approximately 500 people.  This number is also subject to change, however the General Assemblies have a far lesser potential impact on the environment, being as they are, for such a finite period of time.  The Logistics Working Group also works to mitigate any impact that the increased numbers at General Assemblies may have on the gardens or the public’s use of them. 

    …

    4.        EVENT LOCATION

    Location:  Presently the Occupy Melbourne protest is based at Treasury Gardens.  From time to time the protesters conduct marches through the city and hold meetings at City Square; however the majority of activities will be held at Treasury Gardens where protesters will be situated. 

    5.        PROPOSED EVENT INFRASTRUCTURE

    We need to feed people at the protest and run a communal kitchen for people at the protest and people who would like to eat with us also.  We will require a marquee to cover the kitchen and food preparation area, permission for a small generator or access to electricity to assist us with refrigeration, access to taps for hygiene, recycling and intractable waste collection.  Other marquees will be necessary for provision of shelter to protect the occupiers and the public amenities that serve them – for example first aid and information. 

    We can assist City of Melbourne by maintaining cleanliness and ensuring our presence does not negatively impact on the environment through communication with protesters and our Working Groups.

    We need to provide protection from the elements for protesters (sun and wind and rain) as they maintain their continuous presence.  We are able to co-ordinate regular rotations of any items that may otherwise impact on grass or other aspects of the environment to ensure the impacts are minimized. 

18. The application then proffered a number of ways the organisers could work cooperatively with the Council to address concerns which the Council might have.

19. Mr Cutter responded with a written refusal of the permit which included the following:

    From your application it appears you are seeking a permit to camp under clause 2.11 of the Councils Activities Local Law 2009 (local law) and to place objects / things under 4.6 of the local law.

    …

    In considering the application I have taken into account and weighed up a number of factors including:

    •The application relates to a protest, which I assume will engage the human right to freedom of expression under section 15 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) and the right to peaceful assembly and association under section 16 of the Charter;

    •The constitutional right protecting political communication;

    •The proposal relates to a period of the onset of summer, which is historically a time that the Gardens need additional care and attention;

    •The potential impact of the application on the Treasury Gardens and their use, including:

    οThe potential to obstruct other users of the Gardens.  For example a number of other applications and existing bookings exist in respect of the area requested including six weddings, four corporate Christmas parties and two community events;

    οThe limited facilities in and around the Gardens in respect to matters such as water, toilets, food, lighting;

    οPublic health, safety and hygiene issues involved in food preparation including the risks of fire and cooking;

    οThe potential impact of the activities including the proposed tent and marquees on the heritage gardens and the flora and fauna in the gardens including irrigation / watering;

    οThe extended period of time sought would exacerbate the above impacts and, in my view, lead to significant damage to the Gardens requiring reinstatement and associated costs;

    οThe nature of the event is not in line with the Council’s Sustainability Guidelines for Parks and Gardens;

    οNoise emanating from the activities and its impact on surrounding residents.

    •The application does not provide for any insurance including public liability insurance and I am of the view that the applicant would not be able to obtain adequate and appropriate insurance to protect the Council’s interest. 

    In balancing the above matters I have formed the view that the potential impact of the activities subject to the permit is unacceptable. 

    I have also formed the view that if the permit application is unsuccessful this will not impose either a burden on political communication or limit your charter rights noting that people would still be able to use the Gardens for the purpose of protest. 

    As a result I have determined to refuse your application. 
    [Emphasis added]

20. The later application was in a similar form although it sought separate permits for each of six items, namely, general information and first aid marquee, political signs, communal sleeping marquee, Indigenous marquee, kitchen marquee and shade cloth.  This application was refused for the same reasons except in relation to signs.  In relation to that application Mr Cutter responded as follows:

    Application 2

    In relation to Application 2 (political signs) I note that you have indicated:

    1.You are seeking permission on behalf of other protestors to use their own signs.

    2.Permission is not sought for the signs to be affixed in any way on or between any part of a building, plant, pole, post, or other structure;

    3.The signs will be affixed to any marquees that are permitted, or placed on the ground or held by protestors. 

    4.Any permission that is granted can be subject to any reasonable conditions considered necessary to protect the amenity of the Gardens;

    5.A condition may be imposed that the content of the signs is not to contravene any law.  

    I note that insofar as a permit is sought to have signs held by you or other protestors, it is not necessary to seek a permit from Council under the local law.  Council does not regulate the use of hand held political signs under the local law.  I also note that you have indicated that signs will not be affixed to any structure or asset other than a marquee (if permitted).  The only aspect of your permit application that I need to consider, therefore, is the placing of signs on the Gardens. 

    In relation to Part 1 of Application 2 “general political signs”, I have determined that your application in relation to the placement on the ground of the four signs listed in your application (the signs) is accepted, subject to the following conditions, which I consider are reasonably necessary to protect the amenity of the Gardens;

    •The depth of each of the signs must be minimal (having regard to likely impact of the signs on the Gardens);

    •You must ensure the signs are placed clear of the automatic irrigation system when in operation;

    •         The signs must not be staked into the ground;

    •The signs must be secured with appropriate weighting to ensure safety of people in the vicinity;

    •Having regard to the weighting of the signs you must ensure that the signs location is rotated on a daily basis ensuring that each space used by a sign is left to rest for not less than a day after each 24 hour of use;

    •In the event that an Authorised Officer notifies you that s/he has reasonable concerns that a sign is causing an unacceptable loss of amenity to the Gardens, you must ensure the reasonable directions of the Authorised Officer are complied with within the time given by the Authorised Officer;

    •You must agree to indemnify Council for remediation costs incurred by Council in the event of damage occurring to the Gardens by the placement of the signs. 

    I have formed the view that the conditions imposed in relation to Part 1 of the Application 2 will not impose either an unreasonable burden on political communication or limit your Charter rights.

    In relation to Part 2 of the Application 2, I assume that the protest signs that you refer to will be hand held, in those circumstances no permit is required. 
    [Emphasis added]

    The protest at Treasury Gardens

21. During November 2011 when the occupation of Treasury Gardens was underway the protesters publicised their protest by gatherings in other parts of the city.  They also used chalk drawings on the footpaths and signs around Treasury Gardens.  A notice to comply was issued in respect of each of two signs and there was some dispute about whether the Council tolerated other signs.  The Council also took no action against protesters who slept in Treasury Gardens in sleeping bags without tents. 

22. Things at Treasury Gardens were relatively quiet in the first two weeks of November.  There were usually around 20 protesters in the gardens, sometimes down to 15 and other times up to 60.  Generally assemblies attracted larger numbers but these were usually held in City Square. 

23. By 15 November 2011, the occupation, which had begun to increase in size, caused Mr Schwarz to become concerned about the potential damage to the gardens.  On that day he saw large tarpaulins with mattresses, sleeping bags and other personal belongings, crates, boxes of food and cooking utensils stored on them.  Mr Schwarz served four notices to comply in respect of this situation. 

24. Then, on 16 November 2011, Mr Schwarz again visited the site.  He observed a marquee in which a person was sleeping.  He also observed eight personal tents used for sleeping and about six large tarpaulins with personal belongings on them.  He estimated that about 20 to 25 people were sleeping or awake in tents.  He had a conversation with one of the organisers who asked what items could be left and what items removed.  Mr Schwarz described the conversation thus:

    I informed him that if the site reverted back to the way it had been previously that that would be acceptable.  By that I meant that if people were sleeping overnight in sleeping bags, but not with any structures, and during the day putting their gear on a small tarp and moving it during the day, or as directed by Local Law officers, we could definitely tolerate that.  I told him that we definitely would not allow tents or tent like structures to remain.  I told him I was concerned about the volume of materials.  I wanted to give Manu [one of the organisers] some time to discuss these issues with the group.  I told him that I would come back with Local Law officers within the next half hour and we would issue notices if we took issue with anything we saw. 

    As the items were not removed Mr Schwarz issued five notices to comply in relation to them. 

25. About an hour later Mr Schwarz returned.  Eighty police also attended and a marquee and several personal tents were removed.  The marquee was draped with Aboriginal flags and signs reading “Treaty Now”.  It was used as a centre for communication about Indigenous issues.  The protesters physically resisted the removal of the marquee.  Mr Schwarz said that he had observed a person sleeping in this marquee.  The affidavit of the second applicant affirmed on 6 March 2012 gave a detailed response to Mr Schwarz’s affidavit but did not contest this evidence.  Mr Schwarz’s evidence that the marquee was used for sleeping should be accepted. 

26. By 18 November 2011, Mr Schwarz had become more concerned about the volume of materials potentially causing damage to the gardens.  Fifteen notices to comply were issued that day.  Late in the evening there were 20 to 30 protesters present.  They set up a seven by three metre tarpaulin supported by one to 1.5 metre tent poles as a communal sleeping structure.  Six protesters linked arms and resisted Council officers who dismantled the structure.  Eighty police attended to maintain public order.  The protesters remained in the gardens overnight.  There was a storm and a good deal of rain.  The protesters could not sleep.  Without shelter the protesters and their sleeping materials got wet.  As a result on the following day the protesters were exhausted and demoralised. 

27. For the balance of November there were usually 30 to 50 protesters in Treasury Gardens.  They generally had five or six, but up to 15, small tents, some large tarpaulins with gear on top, and several larger tents or marquees.  The Council issued notices to comply on most days as follows: 21 November – 4; 23 November – 12; 25 November – 6; 26 November – 13; 27 November – 12; 28 November – 16; 29 November – 8; and 30 November – 11. 

28. The protesters sometimes removed the items which were the subject of the notices to comply, and on other occasions Council officers removed the items.  Police attended to ensure the maintenance of public order.  On a couple of occasions when Council officers removed tents and tarpaulins there were up to 35 police present, but generally a much smaller number.  The protesters also had kitchen, first aid, and communication marquees. 

29. The protesters briefly moved to Gordon Reserve on 28 November.  Then, on 30 November 2011, the protesters relocated to Flagstaff Gardens. 

    The protest at Flagstaff Gardens

30. On 1 December 2011 there were nine small dome tents and two gazebo structures erected in Flagstaff Gardens by the protesters. 

31. From 1 to 7 December 2011, the police positioned a mobile van as a 24 hour, seven day per week command post at the corner of La Trobe and William Streets about 20 to 30 metres from the protesters. 

1. On 5 December 2011, the Council commenced a 24 hour presence at Flagstaff Gardens to deter the erection of more tents and structures.  Two Council officers remained in a car parked near the protesters. 

2. Between 1 and 5 December 2011, the protesters continued to erect tents.  There were usually about 15 protesters and six tents during these days.  The Council issued notices to comply generally directed to the removal of tents and other associated items as follows:  1 December – 11; 2 December – 7; and 4 December – 7.

3. On 4 December 2011, some of the protesters began using tents in a different way.  Instead of erecting them in the gardens, they cut holes for head, arms and legs in the tent fabric and then utilised the tent as a garment.  The protesters called these garments tent costumes.

4. On 5 December 2011, the Council determined that it would no longer use the notice to comply procedure at Flagstaff Gardens.  The Regulations applied to these gardens and did not require the service of such a notice.  In future at Flagstaff Gardens the Council officers would ask protesters to remove tents or other structures or items.  If the protesters did not do so, the Council officers would remove the tents, structures and other items after a short time.  The Council and the police told the protesters that the Council would no longer rely on notices to comply.  They also said that the tent costumes were not permitted in Flagstaff Gardens because the protesters were using the tents for camping in breach of the Regulations.  The protesters were told that the tent costumes would be removed. 

5. On 6 and 7 December 2011, the second applicant and another protester respectively refused to remove the tent costumes they were wearing.  Council officers, and later with the assistance of police, then removed the tent costumes from the two protesters.

6. For the remainder of December 2011 in Flagstaff Gardens, Superintendent O’Neill reported that there continued to be about 15 to 30 protesters.  Sometimes they erected small tents, but removed them when asked by Council officers.  They slept on tarpaulins in sleeping bags. 

   Signs

7. Two of the notices to comply related to signs.  One notice was issued on 14 November 2011 in relation to a notice which stated “Occupy Melbourne Discussion Group Occupy Movement Civil Rights – Human Rights”.   The notice was issued as soon as the sign was placed on the ground.  Mr Schwarz did not issue the notice, and thought that it was a mistake to do so.

8. The other notice to comply in relation to a sign was issued on 25 November 2011.  The sign was erected in Treasury Gardens and consisted of words written on cardboard boxes.  Mr Schwarz said that there were many other signs in and around Treasury Gardens but notices were issued only in relation to these two.  The second applicant disputed this evidence.  She said that other notices to comply were issued in relation to signs, particularly in February 2012, and that on numerous occasions the Council officers directed that signs be taken down.  The notices to comply issued in February 2012 were produced by the second applicant.   

   The enforcement activities under the Regulations

9. In addition to the relief sought in respect of the notices to comply, the Fourth Further Amended Originating Application sought a number of declarations including in [4A] that the enforcement activities of the Council under the impugned Regulations were unlawful.  These activities were defined as the conduct described in [93] to [99] of the second applicant’s affidavit affirmed on 14 December 2011, and in [34] and [60] of the second applicant’s affidavit affirmed on 6 March 2012. 

10. The conduct referred to in the affidavit affirmed on 14 December 2011 and in [60] of the affidavit affirmed on 6 March 2012, related to the incident referred to in [63] of these reasons for judgment when the Council officers, assisted by the police, removed the tent costume from the second applicant.

11. The conduct referred to in [34] of the affidavit affirmed on 6 March 2012 related to an Occupy Melbourne banner which identified the protests at Flagstaff Gardens.  The second applicant said that this was removed by the protesters as a result of verbal directions by Council officers in order to avoid having it confiscated by the Council.

    The reason for the Council’s actions

12. Mr Shears’ affidavit explained that public open spaces are set aside primarily for recreation, nature conservation, passive outdoor enjoyment and public gatherings.  The Council has 132 sites covering 442 hectares of public open space under its control and management.  It seeks to manage these spaces in a fair and equitable manner which often involves balancing competing interests particularly in relation to gardens close to the central business district like Treasury and Flagstaff Gardens.  At the time of the last survey in 2000 there were over 10 million visitors to the Council’s parks and gardens each year.  One of the most frequently visited parks was Flagstaff Gardens with over 1.7 million visitors per year. 

13. Mr Shears also explained that the Council has an urban forest strategy.  The parks and gardens, especially the older gardens like Treasury and Flagstaff Gardens, need to be carefully managed because they contain a dominance of elm and plane trees.  Those trees are coming to the end of their lives and have been adversely impacted by drought in recent times. 

14. The Council has impact guidelines which govern the use of the gardens for events so that the number and size of events do not exceed the capacity of the gardens.  A high impact event lasts for more than five days and/or has more than 10,000 people.  A medium impact event last between two and five days and/or has between 1,000 and 10,000 people.  A low impact event lasts not more than a day and/or has not more than 1,000 people.  The Council has assessed that Treasury and Flagstaff Gardens should not have any high impact events, may have four medium impact events per month, and 25 low impact events per month.  Mr Shears said that the gardens are not designed to accommodate short or long term living. 

15. He also explained that both Treasury and Flagstaff Gardens are historically and horticulturally significant.  Both are recognised by listings by Heritage Victoria and the National Trust.  In both cases a large number of trees have a life expectancy limit of one to 10 or 11 to 20 years. 

16. Mr Shears expressed concern about people seeking to occupy these gardens for lengthy or indefinite periods.  Under the impact guidelines this type of occupation would be a high impact event and should not be permitted in either of the gardens in issue.

17. Mr Shears considered the impact on other people of an indefinite occupation of Treasury and Flagstaff Gardens.  The occupation would be unfair on others who already hold permits to have weddings, festivals, parties, sporting events, rallies or personal training.  These events are of limited duration and do not substantially impact on other uses. 

18. An indefinite or lengthy period of occupation presented a danger of damage to lawn areas and trees, and of interference with the Council’s maintenance activities of the gardens.  Furthermore, the gardens do not have the infrastructure, such as toilets or showers, for such an occupation.

19. Mr Schwarz said that the Council had significant concerns about damage to the lawns and trees particularly when he observed an increase in the number of tents and equipment being used in the gardens.  He said that he observed areas of lawn dying because items had been placed on the lawns.  The second applicant responded that she had not seen any substantial damage to the lawns and trees.  She said that the protest was moved several times to minimise the impact of the protest on the gardens. 

    OVERVIEW

20. These reasons for judgment address the following major issues and come to the conclusions indicated.

    1.Whether the challenges to the Local Government Act and the Crown Land Reserves Act and the impugned Local Laws and the impugned Regulations made under them respectively are matters arising under the Constitution or involving its interpretation such that the Court has jurisdiction under s 39B(1A)(b) of the Judiciary Act.

    The Court accepts the applicants’ argument that the Court has jurisdiction.

    2.Whether the applicants may bring or continue the proceeding in a representative capacity. 

    The Court accepts the argument of the respondents that the proceeding should not continue as a representative proceeding.

    3.Whether the Regulations were automatically revoked by operation of the sunset provisions in s 5(1) of the Subordinate Legislation Act 1994 (Vic) (the Subordinate Legislation Act).

    The Court accepts the arguments of the respondents and the Attorney-General that the Regulations were not revoked at the time of the protest.

    4.Whether the notices to comply were invalid on their face because their wording meant that they fell outside cl 2.11 and / or cl 4.6 of the Local Law.

    The Court accepts the argument of the Council that five of the eight notices to comply  issued to the second applicant were validly issued.  The Court accepts the argument of the second applicant that three notices to comply issued to her, one on 18 November 2011 and two on 28 November 2011, were invalid.  

    5.Whether the impugned Local Laws and Regulations when read together with their enabling provisions were invalid because they infringed the implied freedom of political communication and association.

    The Court accepts the arguments of the respondents and the Attorney-General that the provisions are valid.

    6.Whether the impugned Local Laws and the Regulations were incompatible with the rights to freedom of expression or peaceful assembly or freedom of association under the Charter.

    The Court accepts the arguments of the respondents and the Attorney-General that the impugned provisions are not incompatible with those rights under the Charter.

    7.Whether the decisions of Council officers to issue the notices to comply or take the enforcement action infringed the implied freedom of political communication or were incompatible with the right to freedom of expression or the right of peaceful assembly or freedom of association under the Charter.

    The Court accepts the arguments of the respondents and the Attorney-General that the decisions did not infringe the implied freedom of political communication and were not incompatible with those rights under the Charter.

    8.Whether the arrests of protesters made by Victoria Police were unlawful. 

    The Court accepts the arguments of the Chief Commissioner that the arrests were lawful.

    9.Whether the applicants should have leave to amend [2(c)] and [6(c)] of the Fourth Further Amended Originating Application.

    The Court accepts the argument of the Council and the Attorney-General that the application to amend should be refused.

    JURISDICTION

    The subject matter of the proceeding

21. The applicants contended that the Court has jurisdiction under s 39B(1A)(b) of the Judiciary Act which provides:

    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

    …

    (b) arising under the Constitution, or involving its interpretation;

22. In order to determine whether the Court has jurisdiction it is necessary to identify the controversy which the Court is asked to address. The way in which the case developed pre-trial gave rise to some confusion whether the applicants challenged the validity of s 111 of the Local Government Act and s 13 of the Crown Land Reserves Act or whether they challenged the validity of the impugned Local Laws and Regulations made respectively under the Acts. It is necessary to explain the way the confusion arose.

23. The proceeding was commenced by an application supported by affidavits.  The parties agreed to proceed by way of written submissions rather than by way of pleadings. 

24. The applicants filed their written submissions on 8 March 2012.  At this time the then current application namely the Third Further Amended Originating Application relevantly claimed:

    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.

    …

    6.Declarations that the making of each of regs 18 and 21 of the Regulations and/or reg 34 of the  Regulation, 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; and

    (b)such action was incompatible with one or both of the Charter rights.

    [Emphasis added]

25. The issue concerning the impugned Local Laws and the Regulations was described in the applicants’ written submissions as follows:

    Are any one or more of cll 2.11, 4.6 and 14.13 of the Local Law and regs 21 and 34 of the Regulations cumulatively or separately invalid insofar as those provisions purport to apply to the Protest and the Protesters, by reason that the clauses impermissibly burden the implied freedoms of political communication and association under the Constitution?

26. The issue of jurisdiction was dealt with briefly as follows:

    The Application invokes the Court’s jurisdiction under s 39B(1A)(b) of the Judiciary Act 1903 (Cth) (the Judiciary Act) – the matter is one arising under the Constitution or involving its interpretation. The Application also invokes the jurisdiction of the Court under s 32 of the Federal Court of Australia Act 1976 (Cth). In any event, the jurisdiction conferred on the Court by s 39B of the Judiciary Act is sufficient to authorise the Court to determine all of the claims – federal and non-federal – which are involved in the controversy.

27. The applicants relied on Evans v New South Wales (2008) 168 FCR 576; [2008] FCAFC 130 (Evans).  In Evans, the applicants similarly challenged regulations on the basis that they impermissibly burdened the implied freedom of political communication and the applicants invoked the Court’s jurisdiction under s 39B(1A)(b).  The claim for relief in the present case mirrored the claims for relief in that case.

28. On 29 February 2012, the High Court delivered judgment in Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 (Wotton).  The respondents and the Attorney-General filed their written submissions on 19 March 2012.  The hearing of this case commenced a few days later on 21 March 2012.  The respondents and the Attorney-General then, for the first time, raised a challenge to jurisdiction based on the recent judgment in Wotton.  In essence they submitted that the applicants’ challenge was that the impugned Local Laws and Regulations were beyond the power of the enabling statutes and this claim did not arise under the Constitution or involve its interpretation, but rather, arose under the statutes.  Consequently, so they argued, the case did not fall within s 39B(1A)(b) and the Court had no jurisdiction to hear and determine it. 

29. In response, on the first day of the hearing, the applicants applied to file an amended application, the Fourth Further Amended Originating Application, which included claims for:

    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.

    …

    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. 

30. After referring to the receipt by the applicants of the respondents’ written submissions challenging jurisdiction, Mr Merkel QC, who appeared with Mr E Nekvapil, Mr N Wood and Mr R Watters as counsel for the applicants, explained the purpose of the amendments thus:

    …there was a simple answer and that was to make explicit which was implicit – merely to say that the head sections didn’t authorise the laws – and to the extent they impermissibly burdened, they were beyond constitutional power of the state parliament. 

31. The Council did not oppose that amendment, but argued that the amendment did not answer the challenge to jurisdiction.  The Attorney-General, as an intervener, did not see it as his role to put a position on the application to amend, but also said that the amendment did not achieve the purpose.  The Chief Commissioner did not oppose the amendments on the basis that they did not relate to any relief sought against him. 

    The submissions in chief of the applicants

32. In support of the contention that the Court has jurisdiction to hear and determine this proceeding, the applicants relied on Evans. 

33. In that case, s 58(2) of the World Youth Day Act2006 (NSW) (WYD Act) authorised the making of regulations for or with respect to “regulating the use by the public of, and the conduct of the public on, World Youth Day venues and facilities”.

34. Clause 7(1)(b) of the World Youth Day Regulation 2008 (NSW) (WYD Regulation) provided that an authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that causes annoyance or inconvenience to participants in a World Youth Day event.

35. Section 46(3) of the WYD Act provided that a person must not sell or distribute a prescribed article during the sales control period in a World Youth Day Coordination Authority controlled area without the approval of the Authority. Clause 4 of the regulations prescribed various classes of articles for the purpose of s 46(3).

36. 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]

37. 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]

1. 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.

2. 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.

3. The applicants next submitted that the limitations on their Charter rights were not demonstrably justified within the terms of s 7(2) of the Charter. In this regard the argument followed the contentions relied upon in relation to the implied freedom of political communication outlined in [0] in these reasons for judgment. A carve out could have been made for the rights of freedom of expression, peaceful assembly and freedom of association. This would not have been difficult to do and, hence, was a reasonably available less restrictive means to achieve the purpose of the provisions. Consequently, the provisions went beyond the reasonable limits on those rights (s 7(2)(e)). In relation to the right to freedom of expression, the provisions imposed limitations which were not reasonably necessary (s 15(3)). It follows that the making of cl 2.11, cl 4.6 and cl 14.13 was unlawful under s 38(1) and the provisions were invalid.

4. The applicants contended that they could seek relief under s 39(1) which provides:

   If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

5. The applicants then contended that the impugned Local Laws were not saved by s 32(1) and (3) of the Charter which provide:

   (1)So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

   …

   (3)This section does not affect the validity of –

   (a)an Act or provision of an Act that is incompatible with a human right; or

   (b)a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

6. Section 32(3)(b) does not save these provisions because s 111 of the Local Government Act which gave the Council authority to make the Local Law did not expressly or by implication empower the Council to make laws incompatible with Charter rights.

7. If the impugned Local Laws which were used by Council officers were invalid, then the notices to comply issued, and the enforcement actions taken under them, were also unlawful. If the provisions were invalid, then the notices and actions taken infringed the applicants’ rights to freedom of expression, peaceful assembly and freedom of association. They were not demonstrably justified within s 7(2) or, in respect of the restriction on the right to freedom of expression, not reasonably necessary within s 15(3).

   The submissions of the Council

8. The Council argued that s 38(1) of the Charter does not permit a challenge to the making of subordinate legislation. The function of making subordinate legislation is not an act of a public authority within the meaning of s 38(1).

9. The Charter draws a distinction between legislative acts and administrative action. Only administrative acts are the subject of a claim of unlawfulness under s 38.

10. The validity of legislative acts is dealt with in Division 3 of Part 3 of the Charter.  The interpretation of laws is dealt with in ss 32(1) and (3) which are set out in [431] of these reasons for judgment.

11. Where an issue of law arises as to whether a statutory provision complies with the Charter, that issue may be referred to the Supreme Court of Victoria.  Section 36(2) provides that:

    [I]f in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to the effect in accordance with this section.

12. Section 36(5) provides:

    A declaration of inconsistent interpretation does not –

    (a)affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or

    (b)create in any person any legal right or give rise to any civil cause of action.

13. The Charter contemplates that an empowering Act may authorise the making of subordinate legislation that is not compatible with Charter rights (s 32(3)(b)). Under s 32(3)(b) such a subordinate instrument is valid. It was argued that s 38 cannot operate to render the making of the instrument unlawful. The Charter cannot render unlawful that which it expressly recognises as valid. The way s 38 is reconciled with the rest of the Charter is by construing s 38 as inapplicable to legislative acts.

14. Then, the Council argued that if the impugned Local Laws were valid under the Charter, the notices to comply and enforcement action taken under them were valid. 

15. Finally, the Council contended that, if it were necessary for the impugned Local Laws to comply with the Charter, then the provisions were justified within the terms of s 7(2), and in relation to the right to freedom of expression, also within s 15(3), on the same analysis as applied to the implied freedom of political communication. The restrictions were subject to a permit system, any permit decision had to take into account the applicants’ Charter rights, and such a decision was reviewable also by reference to the applicants’ Charter rights.

    The submissions of the Attorney-General

16. The written submissions of the Council and the Attorney-General raised essentially the same arguments, although the Attorney-General raised some significant additional issues in his written submissions.  Dr Donaghue adopted the oral submissions made by Mr Niall, but elaborated some and provided some useful insight into others.  As before, reference will be made only to additional matters. 

17. In the written submissions it was observed that the right to freedom of expression in s 15 is broader than the implied freedom of political communication in several respects. Not only is it not limited to political communication, but it is an individual right. On the other hand, whilst it can be accepted that cl 4.6 might involve a form of expression by placing signs on public land, and hence fall within the Charter right to freedom of expression, cl 2.11 relating to camping in tents does not necessarily involve expressive conduct. Whether it does so is a matter of proof, and this aspect was addressed in the argument concerning the implied freedom of political communication.

18. Then, the written submissions contended that neither cl 2.11 nor cl 4.6 restricted the protesters’ right of peaceful assembly. Clause 4.6 relates to the placement of advertising signs and other things and does not inhibit the protesters’ ability to assemble. Clause 2.11, by requiring the protesters to apply for a permit, does not restrict the right to peacefully assemble. Further, the law does not prevent protesters assembling in public places but only from erecting tents and other structures.

19. In oral submissions, Dr Donaghue emphasised that the applicants’ Charter arguments went only to the validity of the impugned Local Laws and not to the Regulations. The Regulations were made before the Charter was introduced and s 49(3) of the Charter provided that Div 4 of Part 3, in which one finds s 38, does not apply to acts or decisions made before the commencement of the Division.

20. Assuming, contrary to the Attorney-General’s position, that s 38(1) is engaged at all, Dr Donaghue contested the applicants’ argument that the Council carried the burden of proof of the justification of the restrictions on the Charter rights. Dr Donaghue contended that to establish that the act was unlawful under s 38, the applicants had to prove that the act in question was incompatible with human rights. To do this the applicants had to show not only that the right was restricted, but also that there was non-compliance with s 7(2). This would be critical if the Court came to consider each incident comprising the enforcement action because, so it was argued, the applicants provided no evidence in respect of each action to show that it was not justified.

21. The principle which applies was explained in, and illustrated by, Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19. Section 47(1) of the Motor Car Act 1951 (Vic) gave a person injured a right to sue the nominal defendant where the identity of the car which caused the injury could not be established, provided that the person gave notice of claim to the Minister as soon as possible after he knew that the car could not be identified.  The High Court held that the burden of proving compliance lay on the plaintiff and said at 519:

    When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions.  Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision.  In other words it may embody the principle which the legislature seeks to apply generally.  On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. 

22. Dr Donaghue contended that the present case fell within the former category.  The Charter provisions define the elements of unlawfulness and the circumstances that qualify or excuse non-compliance.  Section 7(2) does not work by excusing unlawfulness.  It defines circumstances where there is a breach.  It was for the applicants to establish each of these elements. 

23. Dr Donaghue opposed the proposed amendment to the Fourth Further Amended Originating Application sought by the applicants to add a claim that the officers of the Council failed to properly consider the Charter rights when taking action against the protesters.  He said that this was a new case which would depend on further evidence from Council officers relating to each of the actions taken by them.  

    Consideration

24. The rights to freedom of expression, peaceful assembly and freedom of association are subject to such reasonable limits as can be demonstrably justified in a free and democratic society as provided for in s 7(2) and, in respect of the freedom of expression, subject to lawful restrictions reasonably necessary as provided for in 15(3).  The permitted restrictions are not relevantly different from the permitted limitations on the implied freedom of political communication.  These reasons for judgment have earlier concluded that the impugned Local Laws do not impermissibly burden the implied freedom of political communication.  The same analysis applies to the Charter rights of freedom of expression, peaceful assembly and freedom of association, so that the limits are reasonable limits within the terms of ss 7(2) and 15(3) of the Charter.

25. It is therefore unnecessary to decide whether s 38 of the Charter applies to legislative acts of the Council. Were it necessary to do so I would accept the arguments of the Council and the Attorney-General that the section does not apply to such acts.

26. The proposed amendments to the Fourth Further Amended Originating Application which sought to add [2(c)] and [6(c)] allege that the decision to issue and act on the notices to comply and to engage in the enforcement activities were made without proper consideration of the Charter rights contrary to the requirements of s 38(1) of the Charter.

27. The application to amend was made late in the applicants’ final oral submissions.  The respondents had no notice of the application prior to this time.  It raised new legal and factual issues.  To the extent that it raised new factual issues the respondents would need the opportunity to call further evidence.  It would not conduce to the efficient management of the proceeding in the interests of justice to allow a further evidentiary issue to be commenced almost at the end of the proceeding and after the evidentiary cases had been closed.  In view of the conclusion that the impugned Local Laws were not incompatible with the Charter rights and not unlawful, the applicants are not prejudiced by not being permitted to amend the application.  

    THE LAWFULNESS OF THE ACTION TAKEN BY THE POLICE

28. In view of the determination that the matter is not to continue as a representative proceeding and that the applicants who themselves were not arrested do not have standing to challenge the arrests, it is not necessary to consider the lawfulness of the actions of the police.  However in deference to the helpful arguments put by Mr Holdenson, it is appropriate to indicate my view on the issues raised.  These views may be relevant to the question of costs.

29. In [6B(c)] of the Fourth Further Amended Originating Application the applicants sought a declaration that s 458(1) of the Crimes Act did not authorise the officers of Victoria Police to apprehend protesters in reliance on s 224(8) of the Local Government Act. The arrests were made in the course of the enforcement of the notices to comply, and in the course of the enforcement of the Regulations on 6 December 2011 when the second applicant’s tent dress was removed, and on various occasions when the protesters were directed to remove Occupy Melbourne banners.

30. Section 458(1) relevantly provided:

    Any person, whether a member of the police force or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates’ Court to be dealt with according to law or deliver to a member of the police force to be so taken any person –

    (a)he finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely -

    (i)to ensure the attendance of the offender before a court of competent jurisdiction;

    (ii)to preserve public order;

    (iii)to prevent the continuation or repetition of the offence or the commission of a further offence; or

    (iv)for the safety or welfare of members of the public or of the offender;

31. Section 224(8) of the Local Government Act provided:

    A person is guilty of an offence and liable to a fine not exceeding 60 penalty units if he or she –

    …

    (b)obstructs or hinders an authorised officer while performing his or her duty

32. The claim for relief against the Chief Commissioner led him to file the affidavit sworn by Superintendent O’Neill which chronicled in detail the actions taken by police throughout the protests.  The affidavit of Superintendent O’Neill revealed that 13 protesters had been arrested at various times during the protest, but neither of the applicants was arrested. 

33. The claim for relief also led the Chief Commissioner to make comprehensive and cogent written and oral submissions which included contentions that:

    ·The applicants had no standing to argue the lawfulness of the arrests because they had not themselves been arrested.

    ·The applicants had no community of interest with people who had been arrested, and hence this issue was not appropriate for a representative action. 

    ·The impugned Local Laws and the impugned Regulations were valid

    These arguments have already been canvassed in these reasons for judgment. 

34. The Chief Commissioner also argued that even if the impugned Local Laws or impugned Regulations were invalid, the arrests were lawful by operation of s 461(1) and s 462 of the Crimes Act. This argument which has not previously been addressed in these reasons will now be considered.

35. Section 461(1) of the Crimes Act provided:

    Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 or section 459 the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged.

36. Section 462 of the Crimes Act provided:

    In this Act the expression finds committing and any derivative thereof extends to the case of a person found doing any act or so behaving or conducting himself or in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence.

37. By the time the applicants came to reply, the only argument pressed which was solely directed to the lawfulness of the actions of the police depended on the Court holding that the impugned Local Laws and the impugned Regulations were invalid. The applicants contended that if such laws were held to be invalid then it followed that the laws did not exist.  As a result, the arresting officer could not have formed a belief on reasonable grounds that the protester was guilty of an offence.  For this approach, the applicants relied on the judgment of McHugh J in Coleman. In relation to a provision relevantly the same as s 458 his Honour said at [138] and [140]:

    138     In Hazelton v Potter , Griffith CJ said:

    The reasonableness of the defendant's belief, if he honestly entertained it, is not to be inquired into, except as an element in determining the honesty ...  Nor is a mistake in the construction of the Statute fatal to the defendant ...  But there must be some Statute in force under which the act complained of could under some circumstances have been lawful.  A mistake by the defendant as to the existence of a law cannot be brought within these principles.

    …

    140Section 35(1) of the Police Powers Act was not identical with the enactment considered in Hazelton.  But in my opinion the principle on which that case was decided applies to the present case.  Hazelton holds that a person cannot intend to execute a statutory instrument if the instrument does not exist.  A fortiori, a person cannot have a reasonable suspicion that an offence has been committed under an enactment that does not exist.  It is not reasonable to believe or suspect that a law exists when it does not. 

    [Emphasis added]

1. In Coleman there was no provision corresponding to s 461(1) of the Crimes Act. On its face that section may have the effect of making the arrest lawful even where no offence existed.

2. On the other hand, such a provision may itself be unconstitutional.  McHugh J said at [142]:

   The constitutional prohibition or immunity extends to invalidating not only a law directly infringing the prohibition or immunity but also any consequential law that seeks to validate conduct that occurred under the first law.

   In the course of his oral reply, Mr Merkel appeared to stray into this area of constitutional invalidity. The respondents objected that there had been no s 78B notice served in relation to a constitutional challenge to s 461 of the Crimes Act. Mr Merkel explained that it was not intended to make such a challenge. In a sense this left the issue incompletely addressed.

3. 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

4. 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. 

5. As the question of costs was not argued, that question is reserved.  

I certify that the preceding four hundred and sixty eight (468) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       1 October 2013