6.4.7 Enforcement under the Regulations
210 Therefore, the only other Charter issue arising on appeal is what was called in the fourth further amended application the "enforcement activities" in Flagstaff Gardens. This is the matter which we accept the primary judge should have dealt with, but did not.
211 Declaratory relief was sought in relation to "conduct described in paragraphs 93 to 99 of the affidavit of the Appellant affirmed on 14 December 2011 and paragraphs 34 and 60 of the affidavit of the Appellant on affirmed on 6 March 2012". The identified paragraphs deal with two events. The paragraphs in the 2011 affidavit and paragraph 60 in the 2012 affidavit deal with an event on 6 December 2011, where a tent in which Ms Kerrison had slept, but then, in protest, modified so she could move around in it and "wear" it, was removed from her by police officers, with Council officers giving directions. Paragraph 34 in the 2012 affidavit deals with directions given to Ms Kerrison to remove an Occupy Melbourne banner which was tied to some railings in Flagstaff Gardens. Senior counsel for the appellant submitted that specific incidents were selected and then a "line in the sand" was drawn about the number of individual incidents to be challenged. Whatever the explanation for the forensic judgment made, the fact is that this aspect of the proceeding, and the Charter issues raised by it, concerned only those two incidents.
212 Both of these events occurred in Flagstaff Gardens, in circumstances where, all parties agreed, it was no longer the Local Law that was being enforced, but rather the provisions of the Regulations and in particular regs 18 and 21. It will be recalled that reg 33 imposes an obligation on a person to comply with "any reasonable direction of an Appointed Officer" and reg 34(3) authorises an Appointed Officer to remove, or cause to be removed, amongst other things a tent or "other structure" which has been placed on a reserve without consent. The provision for the seeking of consent or approval is set out in reg 32. No consent or approval was sought under the Regulations by the protestors.
213 The respondents accepted that the giving of directions pursuant to regs 18 and 33 was within the meaning of the phrase "to act in a way" in s 38(1) of the Charter. The appellant did not rely on the second limb of s 38(1) (the making of a decision and the associated considerations requirement). Rather, ground 4(c) of the further amended notice of appeal alleged the primary judge had erred in failing to find that these two "enforcement activities" were incompatible with the human rights in ss 15(2), 16(1) and 16(2).
214 Given the conclusions we have reached about the representative proceeding issue, and the refusal of leave to amend the notice of appeal to challenge the primary judge's findings about standing, the ground of appeal can refer only to whether those enforcement activities limited, disproportionately, Ms Kerrison's human rights in ss 15(2), 16(1) and 16(2).
215 It is also not necessary to resolve the contentious issue of onus in relation to the operation of s 7(2) of the Charter. The State submitted, as it has in Bare currently reserved before the Court of Appeal, that the person alleging conduct limits human rights bears the burden of showing those limits are disproportionate in accordance with s 7(2). The State relied on Vines v Djordjevitch (1955) 91 CLR 512 at 519 - 520 to support this argument. The State's argument is contrary to single judge decisions in the Supreme Court of Victoria such as Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 at [147] per Warren CJ, and Patrick's case [2011] VSC 327 at [310] per Bell J. It is also contrary to the weight of comparative decisions on proportionality approaches in other bills of rights: see, eg, R v Oakes [1986] 1 SCR 103 at 139; Bank Mellat [2014] AC 700; [2013] UKSC 39 at [73] - [74] per Lord Reed. Lord Reed was in dissent on the outcome in Bank Mellat, but the other Lords agreed with him on this point, demonstrating this proposition is well-established in the UK: see at [20] per Lord Sumption (with whom Baroness Hale, Lord Kerr and Lord Clarke agreed), at [166] per Lord Neuberger. See also Nicklinson v Ministry of Justice [2014] 3 WLR 200; [2014] UKSC 38 at [167] - [168] per Lord Mance); Schubert v Wanganui District Council [2011] NZAR 233; [2011] NZHC 48 at [106] per Clifford J; Hansen v The Queen [2007] 3 NZLR 1; [2007] NZSC 7 at [103] per Tipping J.
216 Whether it is described as the Council discharging the burden of demonstrating the actions of the council officers were proportionate (as the appellant would have it), or as Ms Kerrison failing to discharge the burden of showing the actions were disproportionate (as the State would have it), when the Court is examining on appeal the evidence as it existed at trial and considering the arguments now put about that evidence, the matter can be resolved without resort to questions of onus or burden. In our opinion where an important legal issue under the Charter is currently reserved before the Victorian Court of Appeal, unless it were necessary to determine the matter in order to decide an issue on the appeal, this Court should refrain from expressing any opinion on it.
217 The focus in argument on the appeal was on the first incident involving Ms Kerrison and the tent. The appellant invited the Court to watch the video of this incident which was exhibited to Ms Kerrison's affidavit and the Court did so. It is fair to say the manner in which the power in reg 34(3) was exercised to remove the tent from Ms Kerrison does not reflect well on the Council or Victoria Police. The choice to exercise the power conferred by the Regulations in those circumstances may not have been the most appropriate choice. Those observations say nothing about the lawfulness of the Council and police conduct but simply reflect what we consider might be the reaction of many members of the community on seeing that video.
218 At trial, the appellant expressly elected to discontinue any allegations against the police officers involved in the removal of the tent from her person. It was never clarified in argument on the appeal whether the appellant alleged it was Victoria Police officers who removed the tent and the Council officers "caused" it be removed, or whether she alleged it was Council officers who removed the tent directly, or a combination. Rather it was generally asserted that the removal for the purposes of reg 34(3) meant Council officers acted in a way which was incompatible with Ms Kerrison's human rights under ss 15(2), 16(1) and 16(2) of the Charter.
219 It is possible to read the primary judge's summary conclusion at 78 as also covering these arguments. The primary judge expressly refers to the relief sought under ground 4A of the 4th further amended application, and the evidentiary basis relied on, at [67] of his reasons. He briefly refers to the removal of the tent from Ms Kerrison at [63] and [68] of his reasons. He also briefly refers to the removal of the banner at [69] of his reasons. Unlike the other Charter matters, however, there is nothing in that part of the primary judge's reasons where he considers the Charter arguments ([450] - [453]) about this claim, or about enforcement under the Regulations. The primary judge deals only with the Local Law in this part of his reasons. That focus is also apparent in the preceding sections where the primary judge recites the parties' submissions about the Local Law only. There is one part of the primary judge's reasons where he notes (at [424]) the applicants' concession that the Charter could not apply to the making of the Regulations as they were enacted prior to the Charter. It is possible this caused his Honour to overlook the applicants' separate argument about the Charter based on the Council officers' conduct.
220 Whatever the explanation, the appellant is correct to submit that the primary judge did not deal with an argument she had made and maintained at trial. Unlike the notices arguments, the respondents accepted that the appellant had made and maintained a Charter argument about these two incidents at trial in the same terms as she put the argument on appeal. The State did not deal with this argument in written submissions, and the Council simply submitted that
the appellant's evidence concerning the particular enforcement actions in Flagstaff Gardens was also vague and incomplete. The appellant failed to discharge her burden to prove: the relevant enforcement actions; the relevant circumstances of the enforcement action and whether the enforcement action imposed any limitations upon her rights under the Charter, and those who she sought to represent.
221 The appellant's invitation to the Court to watch the video meant there was an increased focus in argument on the appeal on this incident. However in common with other aspects of the appeal, there was a lack of detail in the submissions about the evidence the appellant sought to have the Court rely on to make the findings she sought on the appeal. The Council produced, towards the end of the appeal and in consultation with the appellant and the State, a bundle said by all parties to represent the evidence available at trial about this incident.
222 That exercise having been undertaken, and the Court having identified error in the primary judge's judgment (by his failure to reach any conclusion on this argument), this Court is in as good a position as the primary judge to make findings on the appellant's claim under s 38(1) of the Charter. We do so on the basis (as we have earlier stated) that s 7(2) informs the Court's assessment of when a public authority acts in a way which is incompatible with a human right.
223 We make the following findings based on that evidence. Much of this account is drawn from the affidavit evidence of Peter Anthony O'Neill sworn 17 February 2012. At the time, he held the rank of Superintendent within Victoria Police, and was not cross-examined at trial.
224 In the afternoon of 4 December 2011 (that is, two days before the incident relied upon), Council officers and police observed three tents had been erected in Flagstaff Gardens. Protestors were observed to be inside the tents with holes cut out to enable their heads, arms and legs to protrude. They started to run around the Council and police officers displaying a banner. No action was taken against them on this occasion. The following morning, and after receiving legal advice that they could proceed by way of directions under the Regulations rather than by notices to comply under the Local Law, Council officers agreed with Victoria Police that Council officers would adopt the approach of requesting removal of the tents and structures and, if not removed within a reasonable time (for example 10 minutes for a standard tent), Council officers would take action and confiscate the property. The role of Victoria Police was to support Council officers in exercising their powers under the Regulations, to ensure safety and keep the peace, although it was contemplated arrests may need to be made to achieve these objectives.
225 In the afternoon of 5 December 2011, 15 protestors were observed in Flagstaff Gardens with six tents erected, three of which were being "worn" by three protestors. None were secured to the ground. Council officers served a notice to comply under cl 14.13 and at least one tent was removed without incident. Police did not physically assist the Council officers in that removal.
226 A little later, there were some protestors still "wearing" tents. Council officers informed them the tents would be seized. A Victoria Police officer spoke to Ms Kerrison, who was also "wearing" one of the tents at this time. Superintendent O'Neill's evidence was:
At the time of 5 December 2011, Sergeant Hinton spoke to Ms Sara Kerrison who was wearing a 'tent costume' at the time and who claimed she was naked underneath. Ms Kerrison told Sergeant Hinton that if an attempt was made to remove her 'clothes', she would claim she had been sexually assaulted and would be represented by her solicitor, Megan Fitzgerald.
227 Legal advice was sought about Ms Kerrison's claim, and then throughout the evening of 5 December 2011 various discussions occurred between the police, Council officers and protestors (including Ms Kerrison). Ms Kerrison claimed to be homeless and have no clothes. She (and other protestors who made the same claim) were offered clothes, blankets, and transport to the Salvation Army premises to collect clothing. It appears none of the invitations were accepted. Ms Kerrison and the other protestors were warned throughout the evening that the tents they were "wearing" would be removed as having a tent in the gardens without consent was not allowed. Ms Kerrison and the other protestors refused to remove the tents.
228 In the early hours of 6 December 2011 (around 1am) Council officers enforced the removal of a tent in relation to a male protestor who was sleeping in it and refused to get out of it: indeed, he zipped himself inside the tent. He was arrested and the tent removed. By around 7.30am there were four dome tents erected in the gardens. Council and police officers approached the area where the tents were erected, read out a statement that they were under a legal obligation to remove the tents. After 10 minutes, when the tents were not removed, Council officers seized two empty tents without incident. A third, in which a man was sleeping, was seized after he voluntarily left the tent.
229 That left the dome tent in which Ms Kerrison had been sleeping. She stood up through an opening in the top of the tent, shouted that the tent was her clothes, she did not consent to being undressed, and that this was sexual assault. She refused to leave the tent, or to remove it. On the basis she had asserted she was not wearing anything underneath the tent, she was asked to put on a set of blue police overalls. She refused. Police and Council officers then encircled her and two female police officers removed the tent which, because of the practical difficulties in doing so, involved using a knife to cut some of the knots holding the tent around Ms Kerrison. Once the tent was removed it was confiscated. Ms Kerrison remained on the ground, with her sleeping bag around her, the unused police overalls next to her, shouting she had been sexually assaulted.
230 In cross-examination, Ms Kerrison agreed she had remained many nights in the gardens without a tent. She also said it was "impossible to be there without tents when it was pouring down rain". She admitted laying down in the tent, and spending the night in it, on the night of 5 December 2011, and said she had a blanket. She said she didn't sleep the entire night because of the patrols by Council officers, and the fact she and other protestors stood up and walked around the gardens with the tent "every 20 minutes" during the night. She insisted she did not classify the tent as a tent: "I was wearing a costume so to me it was being asked to hand over my clothes". In re-examination she said the wearing of the tent was intended in the beginning to be a commentary on the fact that "Occupy Melbourne as a protest was being told what it could and what it wasn't or what was acceptable as a form of protest. And so I thought that that, the tent monster costume, was a particularly engaging channel that I could kind of - I could express that idea to the general public".
231 Mr Schwartz, who was the responsible officer from the Council to whom we have earlier referred, on being shown the video during cross-examination, accepted that the intent of reg 21 of the Regulations was not "what we see on the TV. If I was there I would have advised the officers just to stand down and observe…. My direction was that clause 21 was to do with camping and tents brought in for the purpose of camping and I don't think that that's what we saw on the TV".
232 The Council's submission to which we have referred at [220] above should be rejected. In our opinion, Ms Kerrison's evidence establishes that by wearing the tent she was using it as a form of protest: as she said, to highlight the fact that the Occupy Melbourne protestors were having the mode and manner of their political protests curtailed by the very authorities against whose power, at least in part, they were protesting. When she was walking around wearing the dome tent she was, in our opinion, exercising her right under s 15(2) to impart information and ideas about how the Occupy Melbourne protests were being constrained.
233 The direction to her to remove the tent, although lawful, limited her right under s 15(2) because it precluded her from imparting her ideas about the constraints on the Occupy protestors in the way she had decided was most effective. Objectively, it can be appreciated as an effective visual form of protest against the restrictions on tents and camping in tents in the gardens. Whether the manner in which the tent was removed was lawful at common law, or under reg 34(3), is not in issue before us on appeal. We assume, in the absence of any continuing challenge, the manner in which the tent was removed was lawful in that sense. If it was not, it would have been unlikely to be found to be proportionate.
234 We turn then to consider the proportionality of the limits imposed on Ms Kerrison's freedom of expression right by the actions of the Council officers in removing the tent, or causing it to be removed.
235 The respondents relevantly accepted the right to freedom of expression is undoubtedly important, being at the heart of an open and democratic society. The existence and nature of the implied freedom of political communication in the Constitution reinforces the importance of this right. Yet there is obviously a need to ensure that the valid substantive prohibitions in the Regulations can be enforced in a way which is capable of achieving the preservation, care and maintenance of the gardens and their equitable use. The gardens have historic, cultural, environmental and social significance to the Victorian community, and to those who visit Victoria. The freedom of all people to use the gardens lawfully in the way they wish to - whether for exercise, celebrations or quiet contemplation - is important. The horticultural preservation and care of the gardens is an ongoing task, all aspects of which may not be readily apparent to casual users of the gardens. For example, damage caused by some uses may not be immediately apparent, and there is a place for cautious approaches to the preservation of living things such as gardens.
236 Giving people directions to remove items they are prohibited from having or using in the gardens, and removing those items if the person does not comply with the direction, is a demonstrably justifiable method of seeking to preserve and maintain the gardens and their equitable use. The giving of a direction provides a person with an opportunity to comply with the law, without any further interference. The law in question is not one directed at limiting freedom of expression - it is a law about bringing things into the gardens which may cause damage or interfere with equitable use. The effect on freedom of expression is in that sense incidental. These observations all apply to the directions given to Ms Kerrison, especially since she had been warned over at least two days that her tent, and the tents of others, needed to be removed from the gardens.
237 There is a clear relationship between giving a direction to remove and actually removing a prohibited item from the gardens, and the purpose of the enforcement provisions. Especially where what the laws are seeking to do is maintain continuous equitable use of the gardens, and continuous preservation of them, enforcement actions which have immediate effect are critical.
238 On the evidence, an important factor in our opinion is that Ms Kerrison had been using the tent to stay in overnight: that is, she had been camping in the tent and indeed asserted that she needed it to be able to stay overnight in the gardens. She had been using it as a place to stay, not simply as a costume designed as a form of political protest. In other words, she wanted to be able, and intended, to use it for the very conduct which the (valid) Regulations prohibited. The enforcement action was directed at precluding her from doing this. It was not directed at stopping people walking around wearing tents they had brought into the gardens only so they could walk around in them as part of the Occupy Melbourne protest.
239 In our opinion, the second critical aspect of proportionality on the evidence is whether there were less restrictive means which were reasonably available to the Council officers. This is the aspect which has troubled us, because of the manner in which the video evidence in particular shows the tent was removed from Ms Kerrison. She was no doubt genuinely embarrassed, upset and perhaps humiliated in having the tent removed when she had little clothing on underneath. On the evidence, however, this was a consequence she undertook to risk. She had placed herself in the same position the day before, by also standing up into the tent and walking around, proclaiming she had no clothes on underneath and that removing her tent would be sexual assault. In our opinion this evidence demonstrates she knew there was a risk the prohibition of which she had been informed would be enforced against her and she was attempting to challenge the Council officers not to enforce it because she had elected not to wear any clothes underneath the tent. On both days she was offered clothes and refused them. On 5 December 2011 no action was taken to remove the tent, but she continued to contravene the Regulations again that night by staying all night in the tent, using it for shelter, and then again ensuring she had no clothes on underneath the tent when she stood up and started walking around in it the following day, again in effect challenging the officers not to remove it because she was not wearing anything but a bra and pants underneath.
240 Other protestors had complied with the direction to remove the tents they had slept in from the gardens. If the officers did not act to remove Ms Kerrison's tent, then it was a rational and reasonable inference she would again use it for shelter and stay in it overnight on 6 December 2011, in direct and knowing contravention of the prohibitions. The Regulations like the Local Law have a permission scheme built in, although in this case permission had not been sought. Perhaps there was an error of judgment in removing the tent by force while Ms Kerrison was wearing it rather than while she was staying in it overnight: with hindsight, these assessments are generally easier. The officers were in a tense situation where there was apprehended to be potential damage to the gardens and their equitable use, and protestors like Ms Kerrison were expressly refusing to comply with reasonable directions, and deliberately contravening a law they regarded as at least unfair and perhaps unlawful but which at that time had not successfully been impugned.
241 It is not possible to conclude that less restrictive means to enforce the prohibition were available on 6 December 2011. Certainly, on that day, the Council officers could have chosen not to enforce the prohibition at all, as they had done on 5 December 2011. This assumes that the only proportionate way in which the Council officers could act was by permitting continued contravention of the prohibition. The appellant did not meaningfully develop her argument to this effect and thus it was not dealt with by the respondents. We doubt that the argument can withstand scrutiny given the assumption on which it is based.
242 We find the Council officers did not act incompatibly with Ms Kerrison's human right to freedom of expression by removing the tent she was "wearing" on 6 December 2011.
243 In relation to the action of the Council officers in removing the Occupy Melbourne banner, there was no attention at all paid to this in oral argument. In those circumstances the appellant has not discharged her (agreed) burden of persuading this Court, considering the matter for itself, as to how and why the actions of the Council officers limited her human rights under ss 15 and 16. To take one example, we were not taken to any evidence to identify what the connection was between Ms Kerrison and the banner: that is, whether it was her banner, or whether she was prevented from erecting it.