Padraic Gibson v Commissioner of Police

[2007] NSWCA 251

New South Wales

Court of Appeal

CITATION:	Padraic Gibson & Ors v Commissioner of Police & Ors [2007] NSWCA 251 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6 September 2007
JUDGMENT OF:	Beazley JA at 1; Giles JA at 1; Ipp JA at 1
EX TEMPORE JUDGMENT DATE:	6 September 2007
DECISION:	The Summons is dismissed with costs.
CATCHWORDS:	CONSTITUTIONAL LAW – rights and freedoms implied in Commonwealth Constitution – freedom of political communication – State law provided for exclusion and removal of persons from a defined area for a defined period of time – State law burdened the freedom of communication on political matters – whether State law reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative and responsible Government
LEGISLATION CITED:	APEC Meeting (Police Powers) Act 2007 (NSW), s 24(1)(g), s 26 Uniform Civil Procedure Rules 2005 (NSW), r 1.21
CASES CITED:	Coleman v Power & Ors (2004) 220 CLR 1; [2004] HCA 39 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 Levy v The State of Victoria & Ors (1997) 189 CLR 579; [1997] HCA 31
PARTIES:	Padraic Gibson (First Plaintiff) Daniel Jones (Second Plaintiff) Daniel Robins (Third Plaintiff) Timothy Davis-Frank (Fourth Plaintiff) Commissioner of Police (First Defendant) State of New South Wales (Second Defendant)
FILE NUMBER(S):	CA 40600/07
COUNSEL:	G Kennett; M Avenell; B O'Donnell (Plaintiffs) N Perram SC; K Richardson (First Defendant; NSW Attorney General (intervenor)) R Orr QC (Commonwealth Attorney General (intervenor))
SOLICITORS:	Redfern Legal Centre (Plaintiffs) Crown Solicitor's Office (Defendants) Australian Government Solicitor (Commonwealth Attorney General)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 14570/07
LOWER COURT JUDICIAL OFFICER:	Adams J

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CA 40600/07

BEAZLEY JA
GILES JA
IPP JA

Ex tempore 6 September 2007

Padraic Gibson & Ors v Commissioner of Police & Ors

Judgment

1 THE COURT: On 5 September 2007 the plaintiffs filed a Summons in the Supreme Court claiming, inter alia, a declaration that ss 24(1)(g) and 26 of the APEC Meeting (Police Powers) Act 2007 (NSW) (the APEC Act) are beyond the power of the Parliament of New South Wales and hence invalid. That Summons has been removed into the Court of Appeal pursuant to r 1.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for the purpose of determining the question whether those provisions are invalid.

2 The Summons was supported, inter alia, by an affidavit of Kirrillie Moore, sworn 5 September 2007. Ms Moore is the solicitor for the plaintiffs. She deposed in that affidavit, at para 7, that the plaintiffs want to participate in an organised demonstration, commencing at 10am on 8 September 2007, at Sydney Town Hall, and to then march along certain streets of the city. She deposes that, amongst other matters, the plaintiffs want to protest against the joint Australian and United States operations in Iraq and Afghanistan, the joint Australian and United States nuclear agreement and “WorkChoices” legislation.

3 The APEC Act makes provision for the exclusion and removal of persons from “APEC security areas”. It does so by defining “APEC security areas” and also defining “the APEC period”. Relevantly, “the APEC period” is defined to mean the period commencing at the beginning of 30 August 2007 and ending at the end of 12 September 2007: see s 3(1); and the “APEC security area” is defined as any area that forms part of declared areas and any restricted area.

4 Section 6 provides, inter alia, for a core declared area. That area is defined or is indicated in a map that is part of Sch 2 to the APEC Act and relevantly includes an area commencing in the Central Business District at King Street and extending to Circular Quay and across Sydney Harbour to Kirribilli and is bounded relevantly by Clarence Street in the west. The intended protest march, to which Ms Moore refers in her affidavit, would involve persons entering that area.

5 Part 5 of the APEC Act provides for the exclusion and removal of persons from an APEC security area. It provides, relevantly, that certain persons may be excluded from any APEC security area during the APEC period or any part thereof.

6 Paragraph (g) of s 24 provides that amongst persons who may be excluded is any person whose name appears on an “excluded persons list”. Section 26 informs us what an “excluded persons list” is. It provides that the Commissioner of Police may, from time to time, compile one or more lists of persons that the Commissioner is satisfied are persons who would pose serious threats to the safety of persons or property or both in an APEC security area during the APEC period. A list that is so compiled is described in s 26 as an “excluded persons list”.

7 The application has been brought before the Court urgently. Nonetheless, the Court, during the course of argument, has had the time and the opportunity to consider the relevant law that governs this application and in particular, to consider the decisions of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25, Levy v The State of Victoria & Ors (1997) 189 CLR 579; [1997] HCA 31 and Coleman v Power & Ors (2004) 220 CLR 1; [2004] HCA 39.

8 The Court assumes for the purposes of the application before it that the provisions under consideration burden the freedom of communication on political matters and accepts, as was conceded by the defendants and the Attorney-General of New South Wales, that the matters of intended protest as described in the affidavit of Ms Moore are political matters. That assumption is, therefore, sufficient to satisfy the first question that is raised for the Court's consideration as stated in Lange, namely, whether the law effectively burdens freedom of communication about government or political matters either in its terms, operation or effect: see Lange at 567.

9 The Court is satisfied, however, that the second question posed in Lange should be answered affirmatively. That second question is, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible Government, and a procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people: see Lange at 567; Coleman v Power at 50, 77-78, 82.

10 The Court is satisfied that the provisions under challenge here are appropriate to achieve the end of public safety and the safety of leaders of other countries and their accompanying parties who are present in Australia for the APEC meeting. It is relevant and significant that the legislation does not prohibit public protests by any person including persons on an “excluded persons list”. Rather, it provides for the potential exclusion of persons on the “excluded persons list” for a limited period in designated areas.

11 The ability to engage in protests and any other form of political communication both before, during and after the APEC period in any other part of the city or indeed, any other part of the State of New South Wales, is unaffected.

12 We consider, therefore, that there is no disproportionate effect on any burden of communication as recognised in Lange and the recognition of achieving the legitimate ends of the APEC Act are compatible with the maintenance of the system of representative and responsible government. In this regard, we note that in Lange the formulation of reasonably appropriate and adapted legislation was equated with proportionality. We conclude, therefore, that the provisions under challenge do not offend the constitutional implication to which we have referred. It follows that the Court would refuse the making of the declaration as sought in the Summons.

13 Having said that, the question that we should turn attention to is the formal orders we should make on this application. Under r 1.21(2) of the UCPR, the Court has a number of powers, including that the proceedings be remitted to a division for determination. However, in circumstances where the Court has determined that ss 24(1)(g) and 26 of the APEC Act are valid, is there anything left in these proceedings and, if not, is the appropriate order that we should now make that the Summons be dismissed?

[Counsel addressed on orders.]

[Plaintiff’s counsel addressed on application in respect of costs.]

14 Counsel for the plaintiffs have made an application either that the costs be reserved or that each party pay their own costs.

15 The Court sees no reason in this case why the usual rule should not be made that costs follow the event. We order that the plaintiffs pay the costs of the defendants. In making that Order, the Court has been informed that the State Attorney-General does not seek costs. It is not the practice of Attorneys-General to do so. Accordingly, the order as to costs will only extend to the defendants to the Summons.

16 The formal Order of the Court is:

The Summons is dismissed with costs.

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19/09/2007	-	Typographical error - Paragraph(s) Coversheet
04/07/2008	-	Typographical error - Paragraph(s) coversheet