Le Roy v Brisbane City Council [2025] QCAT 314

s 11Le Roy v Brisbane City Council [2025] QCAT 314 | Case summary | Zoe

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[4] By its clear terms it was a decision to disallow the Extinction Rebellion organisation from booking Council meeting facilities in the future.
[5] The second critical event was that on 16 October 2019, when the Respondent (by the Council's Manager of Library Services) sent an email ('the 16 October 2019 letter') to a member of Extinction Rebellion stating that Brisbane City Council is no longer accepting bookings for meeting rooms or other spaces for the group Extinction Rebellion, or anyone looking to hold a meeting on their behalf. The letter also notified that existing bookings at a couple of the Council's libraries were cancelled. This identifies the scope of the decision as relating to both meeting rooms or other spaces, and it was directed to the group Extinction Rebellion, or anyone looking to hold a meeting on their behalf. It also cancelled existing bookings even though the motion did not refer to that.
[6] Ms Le Roy further contends that she is a member of a politically motivated group known as Grey Power and which she says is a group which joined the Extinction Rebellion as an 'affinity' group, thereby affiliating itself and its members with Extinction Rebellion. Ms Le Roy contends and there is no real controversy, and I find that persons affiliated with Extinction Rebellion booked and used meeting rooms in Council operated libraries. She contends that persons associated with Extinction Rebellion and Grey Power made those room bookings for regular public information sessions, since as early as early 2019. The Council disputes the factual contention that they did so and invited a finding that they involved organising unlawful or illegal activity. Ms Le Roy contends that the library information sessions are political in nature, and many issues relating to climate change involve political action.
[7] On the most widely accepted account, the concept of civil disobedience is a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies.[1] It has a long history. Henry David Thoreau is widely credited with coining the term civil disobedience. For years, Thoreau refused to pay his state poll tax as a protest against the institution of slavery, the extermination of Native Americans, and the war against Mexico. It has a significant history of use in Australia.[2]
[8] There is no real dispute that Extinction Rebellion members (or affiliates as the Respondent refers to them) has engaged in acts of civil disobedience as one of its activities, although as I shall identify shortly, it is only one such activity.
[9] The Respondent alleges that Extinction Rebellion is an organisation which describes itself as an international movement that uses non-violent, civil disobedience in an attempt to halt mass extinction and minimise the risk of social collapse. That much may be and is accepted.
[10] The Respondent alleges in its contentions that in purported furtherance of its goals Extinction Rebellion conducts 'actions' which involve, amongst other things, acts of public disruption and disobedience, directed at causing inconvenience, delay, disruption, anger and provocation of the community and civil agencies generally, with a view to extracting concessions or change from governments and communities in furtherance of certain 'demands' which it makes. It contends that Extinction Rebellion and its members and affiliates engage in large scale, coordinated and premeditated unlawful activities, in furtherance of that organisation's aims and beliefs and that that unlawful conduct so pervades Extinction Rebellion's activities that it might properly be identified as: (i) its raison d'être; or, in the alternative: (ii) at least a substantial purpose of the organisation or (iii) a substantial part of its activities.
[11] Ms Le Roy rejects that proposition that such unlawful conduct pervades Extinction Rebellion's activities, while conceding that some civil disobedience has occurred in protests which she did not commit or countenance.
[12] It is uncontroversial and I find that from July 2019, Mr Robert Keller, a member of the Extinction Rebellion, and various other persons as well, made various bookings for information sessions to be held at Brisbane City Council libraries, but that on 16 October 2019, he received the 16 October 2019 letter as an email from the Council's Manager of Library Services stating that Brisbane City Council 'is no longer accepting bookings for meeting rooms or other spaces for the group Extinction Rebellion, or anyone looking to hold a meeting on their behalf'. The Applicant refers to this letter as a ban. The Council does not accept that characterisation. It says it was an 'enactment of the decision (by the passing of the motion) which precluded Extinction Rebellion from using Council facilities'. So, it says it was not a ban, it was an act precluding something. The Macquarie Dictionary defines the word 'preclude' as meaning shut out or exclude, make impossible, debar. There is no material distinction that matters to the outcome of this case.
[13] Ms Le Roy contends that the information sessions which were held in the libraries were in and of themselves political activity and politically motivated in nature and as well, many issues relating to climate change involve political action.
[14] The proceeding is being dealt with as a representative proceeding. In the notice to class members from the Queensland Civil and Administrative Tribunal ('QCAT') indicating what the nature of the proceeding is, it was described as:

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[17] The relief Ms Le Roy seeks on behalf of the class, and of course herself, is a declaration that she has been unlawfully discriminated against on the basis of her political belief and activity, namely her affiliation with the Extinction Rebellion.
[18] Despite a submission to the contrary from the Respondent, which was not supported by any identified foundation except by assertion in its written submissions that 'the Tribunal is not conferred a power, by s 209 of the AD Act to make a declaration of the kind sought by the Applicant', the Tribunal does have the power under s 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') to make declaratory orders. An example of a case where such an order was made can be seen from one of the authorities that the Respondent referred to for some other proposition, namely Ritson v The Giving Network Pty Ltd & Anor[3] ('Ritson'). There are many examples one can find of such orders being made.
[19] Ms Le Roy also seeks an order that the Council not deny any booking request for its facilities made by any person on the basis of that person's affiliation with the Extinction Rebellion movement and an order that the Council publish a press release stating that it is no longer banning any person affiliated with Extinction Rebellion from booking or using its facilities. That she was asking for a 'Press Release' was clear from the outset of this matter as is apparent from item 20(c), page 4 of the Applicant's Contentions dated 13 March 2020 and no resistance was raised to this relief in the intervening five years until the end of oral submissions at the hearing.
[20] In addition, just before the hearing in the submissions filed 17 February 2025, the Respondent identified that the Applicant was seeking an order pursuant to s 209(1)(a) of the AD Act, that the Council cease enforcement of the decision; and an order pursuant to pursuant to s 209(1)(c) of the AD Act, that the Council publish a notice of the kind sought (styled a 'press release' by the Applicant) by the Respondent. In his opening at the hearing, counsel said, no doubt on instructions, that these orders were the orders that should be made if the Respondent was unsuccessful. But then by the end of argument it had thoroughly moved away from that position, submitting in its 28 February 2025 submission that the 'order the Applicant seeks, in the event of success, could only rationally be to inform those persons on whom the decision operates, being the class, that the decision will no longer be enforced. A "press release" as that term would be used in ordinary parlance, is not required to achieve that purpose'.
[21] That clearly is not what the Applicant was asking for since she was asking for it long before this became a representative proceeding. Instead, it suggested that if the complaint is upheld, the Tribunal would appropriately order that the Respondent cease enforcing the decision and the Respondent notify the class by way of a notice published to the Facebook pages/groups identified in the directions of Member Fitzpatrick of 16 February 2024 that the Applicant's application has been upheld and the decision will no longer be enforced.
[22] That proposition is attendant with difficulty since what the Member ordered was not about what the Respondent would publish on those sites but what the Applicant would publish on them. The order was that:

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[25] The Member accepted that Ms Le Roy is a member of a class of people, the members of which have been affected, or are reasonably likely to be affected by, the Council's conduct. The Member identified that Ms Le Roy contended that that she is a member of the Extinction Rebellion movement which has approximately 4,000 members in Queensland and 29,000 members Australia wide. She contends, as the evidence before me shows, that Ms Le Roy joined Extinction Rebellion at the beginning of October 2019 when Grey Power (another group to which she belonged) became an affinity group of Extinction Rebellion. The Member noted that '[t]the structure of Extinction Rebellion means that there is no one single group or organisational body however, groups are formed as "affinity groups" which identify as being part of, and contributing towards, the Extinction Rebellion movement.'
[26] Ms Le Roy says that to qualify as a 'member' of the Extinction Rebellion movement, individuals may sign up to a global database to receive updates and information. I accept that evidence.
[27] Ms Le Roy contends that she is affected by the Council's decision because she is unable to make use of Council facilities to hold education sessions and other activities associated with Extinction Rebellion and/or Grey Power and is unable to use the Council's facilities to hold meetings.
[28] On the material before the Tribunal in 2021, and also before me, there were affidavits by four other people in support of the application for the complaint to be dealt with as a representative complaint filed. Each of the four deponents also claimed to be members of Extinction Rebellion Brisbane West and they that had been affected by the Council's conduct by being unable to make use of Council facilities to hold meetings and education sessions.
[29] On the application to have the complaint dealt with as a representative proceeding, the Council submitted that Ms Le Roy had not identified the group or class of people she represents and that, even assuming she could, because of the amorphous and ever-changing nature of the group, its members were not readily identifiable and where it is unclear that anyone beyond Ms Le Roy wishes to pursue the complaint, it should not be dealt with as a representative complaint. The Council also made the submission that there is a difference between becoming a member and being an affiliate by virtue of being a member of an organisation that declares affinity which unlike membership, is essentially a unilateral act. Both of those submissions were rejected.
[30] Member Traves, as she then was, held that on balance, she was satisfied that the matter should be dealt with as a representative complaint. She held:

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[34] The Applicant relied on an affidavit from herself dated 28 September 2020, and a document entitled 'Additional Evidence submitted by Miree Le Roy' dated 27 August 2024 and affidavits of other persons who said they identified as members of Extinction Rebellion, Geraldine Holmes (dated 11 August 2020), Paul Grace (dated 11 August 2020), Robin Keller (dated 13 August 2020) and Susan Melloy (dated 14 August 2020). She relied on submissions dated 14 February 2025, 1 March 2025, 26 May 2025 and 29 May 2025.
[35] In the affidavit of Mr Keller, he refers to the Applicant as 'a fellow activist who is similarly involved in campaigns and actions to alert the public and our government to the urgency of the climate crises'. I do not consider his characterisation of her as implying that she condones unlawful conduct or participates in it.
[36] None of the Applicant's witnesses were cross-examined or challenged on their evidence as to how the decision adversely affected them. The Applicant was cross-examined at length. I found her to be intelligent, responsive in her answers, careful with the way she expressed herself to ensure accuracy. She demonstrated that she developed and held her views in a conservative way. She was not a 'militant' member of Extinction Rebellion but was certainly an activist for it. I broadly accept her evidence, including where it conflicts with that of Mr Evans.
[37] The Respondent relied on submissions dated 17 and 28 February 2025, 8 and 28 May 2025 to which I have given careful consideration.
[38] The only witness for the Council was Geoffrey Evans, a solicitor employed by the Council who swore an affidavit to various things some of which he did not appear to have had and did not say he had any direct knowledge of, but rather researched or read and collated documentary material from various sources. He swore at a level of generality that for the purposes of making his affidavit, he had read and was familiar with the Council's records relating to this matter. He swore that unless stated otherwise, the documents exhibited to his affidavit are documents he located in the Council's records. Some that he exhibited he found on the internet.
[39] The record of the Council debates on the motion suggests that only one document was referred to by the two relevant persons who spoke in favour of the motion. None of the others Mr Evans exhibited were referred to in the debate on the motion.

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[40] As was said in Cairns Regional Council v Carey[5] ('Carey') at [90], it will be necessary to determine the matters on which the decision to disallow library use was based, and then to characterise them in accordance with what the authorities say falls within the notions of political belief or activity. In Carey at [104] it was said that the essential questions are 'what was the substantial reason or reasons for the (decision) and should it or they be characterised as discrimination?'
[41] Orders were made on 12 May 2020 that the parties deliver a Statement of Contentions and a Response to the Statement of Contentions. The pleadings that recorded the parties' position at the time of the hearing were the Amended Statement of Contentions dated 18 June 2020 and the Amended Response to the Statement of Contentions dated 14 May 2020.
[42] The Respondent also put in issue whether the Applicant has, at all material times, identified herself as a member and affiliate of the Extinction Rebellion global movement, which she pleaded is, amongst other things, a political movement with the purpose of encouraging governments to take action to prevent climate breakdown and the extinction of species. The Applicant gave evidence to that effect and there is other objective evidence that this was so and I accept that evidence.
[43] The Respondent also put in issue whether, as the Applicant contends, since on or about 5 October 2019, a group, known as Grey Power, of which the Applicant was allegedly a member, officially joined the Extinction Rebellion global movement as an 'affinity' group, thereby affiliating itself and its members with the movement. The Applicant gave evidence to that effect and I accept that evidence.
[44] The Respondent put in issue whether due to its structure, the Extinction Rebellion movement comprises many groups, which identify as being part of, and contribute towards, the Extinction Rebellion movement. The Applicant gave evidence to that effect and there is other objective documentary evidence that this was so and I accept that evidence.
[45] The Applicant swore that Extinction Rebellion is a community collective of like-minded individuals who believe in man-made climate change. It is not a formal organisation and therefore this decision affects each and every one of the people who have the same political belief. I accept that evidence.
[46] The Applicant swore that prior to October 2019, she was a member of Grey Power, an environmentalist group. Grey Power has approximately 500 members within the South-East Queensland region. In the beginning of October 2019, she joined the Extinction Rebellion, which she said was a global movement, when Grey Power became an affinity group of Extinction Rebellion. The Applicant swore that she has been and remains a member of Extinction Rebellion. Cross-examination concerning a document in the hearing book at page 218 demonstrated that as at September 2019, she was not a member of Extinction Rebellion but was a member of Grey Power. She swore that she joined in October 2019, although she was familiar with all of those involved with before then. Her description of having become a member or joining in October 2019, was a reference to her signing up to be on the mailing list, not actually her being issued with any kind of membership per se. I accept that evidence also.
[47] The Applicant said, and there is other objective documentary evidence to support the proposition that Extinction Rebellion is a global movement which is, amongst other things, a political movement with the purpose of encouraging governments to take action to prevent climate breakdown and the extinction of species. Extinction Rebellion has three demands and ten principles which all members and associated groups promote. I accept that evidence.
[48] The Applicant said, and there is other objective documentary evidence to support the proposition that Extinction Rebellion is an organisation which describes itself as an international movement that uses non-violent, civil disobedience in an attempt to halt mass extinction and minimise the risk of social collapse. The Applicant said that the structure of Extinction Rebellion means that there is no one single group or organisational body however, groups are formed as 'affinity groups' which identify as being part of, and contributing towards, the Extinction Rebellion movement. She estimated that there are approximately 4,000 members of Extinction Rebellion within the South-East Queensland region. I accept that evidence also.
[49] The Applicant said, and there is other objective documentary evidence to support the proposition, and I accept, that as a member of Grey Power and Extinction Rebellion she has used library facilities provided by the Respondent to hold education sessions, known as 'heading for extinction talks'. I accept that evidence also.
[50] As I observed at paragraph 10 of these reasons, the Respondent alleges that in purported furtherance of those goals Extinction Rebellion conducts 'actions' which involve, amongst other things, acts of public disruption and disobedience, directed at causing inconvenience, delay, disruption, anger and provocation of the community and civil agencies generally, with a view to extracting concessions or change from governments and communities in furtherance of certain 'demands' which it makes. In that regard, and to a limited degree in support of it, reference may be made to one of the documents referred to by the mayor during debate on the motion was a publication, the author of which was not identified, and it was not put into evidence here which said:

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[53] The cross-examination of the Applicant was directed to ascertaining precisely what, if any, common ideas, themes, concepts or behaviours she considered to be elemental features of what Extinction Rebellion stood for. The cross-examination also sought to have her agree that one of those essential elements, and if not essential, certainly a feature was the notion of engaging in unlawful, or as it was called in some of the questions, illegal conduct.
[54] As her evidence made clear and I accept, it is not part of the policies or practices of Extinction Rebellion as she engaged with them to engage in unlawful activity, or to in any way, promote speaking, used among other tools, tactics and practices, non-violent direct action to promote its causes for government to act. Some may break laws when protest occurs. That she explained was not what she believed. I accept her evidence. There is however clear evidence that civil disobedience was part of the way Extinction Rebellion affiliated promoted it.
[55] As she explained it a part of what Extinction Rebellion stood for was to engage in peaceful protest, but that was not the only way in which it engaged the public and it's political and other leadership. She said, and I accept, that she strongly believed that the world generally faced a climate emergency, and that this was a belief shared by scientific bodies.
[56] She spoke to having a passionate belief that the world faced a potential catastrophe, a climate emergency of an existential character. She said, and I accept, that she believed that the consequences of inaction were dire. She saw the actions of the political cohort, ignoring the problem, and perhaps, even making it worse by providing subsidies to fossil fuel providers. She saw the domination of media by a relatively few entities as part of her concerns, because the problem which she identified was not being recognised in that media.
[57] She said, and I accept, that the essential feature of the activity of Extinction Rebellion was to provide information sessions, to let the public know what was in fact going on. She conceded that ultimately, the problem could not be resolved by individual action, but had to be resolved by government action. She said, and I accept, that the actions of Extinction Rebellion were ultimately about provoking government action.
[58] It was put to her that what she and Extinction Rebellion were about was that once they had tried all the usual ways such as writing to politicians and speaking to people, they had to try more extreme measures or perhaps illegal conduct. She entirely rejected that proposition, and her evidence in that regard was not undermined.
[59] She used the analogy of concert goers taking illegal drugs at a concert and it being the individual responsibility of the patrons, not the performer.
[60] She said, and I accept, that in terms of organised protests in 'International Rebellion Week' from 6 to 11 October 2019, none of the planning that went around the holding of those protests occurred in any library context. She gave evidence that to the extent that there were arrests during protests that this arose out of disobeying police directions and highlighted that these were minor, insignificant offences, which often never went beyond protesters being escorted to a police wagon, and then released or alternatively being issued with a $70 fine.
[61] Counsel for the Respondent repeatedly suggested to her that some sort of illegal or criminal activity must necessarily have been involved in these protests although he did not identify any criminal activity in particular that actually took place. He sought to focus upon the number of arrests identified in media reports, but which in turn, were only in evidence because of media reports exhibited to a solicitor's affidavit. I have elsewhere in these reasons summarised what the offences or arrests for offences were said in those reports to have been.
[62] It was suggested that because of the climate change emergency, Extinction Rebellion took a stance that it was appropriate to take more extreme measures. The Applicant rejected that proposition, insisting that they only engage in legal protests. Her evidence as to this was not undermined during cross-examination.
[63] Ms Le Roy swore, and I accept, that the stance that she personally and Extinction Rebellion took was that it engaged in nonviolent direct action. This can include things such as slowing down traffic by slow marching or other conduct, which was disruptive of peak hour traffic, with a view to drawing attention to the climate change emergency and putting pressure on politicians to act.
[64] To the extent that there were arrests, reported in the media, she rejected the proposition that Extinction Rebellion had any advance notice of any proposed unlawful conduct. I accept her evidence as to this.
[65] One proposition put to her in cross-examination and later adopted in the Respondent's submissions was that the Tribunal could infer pre-organised, or premeditated unlawful activity at the protests, or if not pre-planned, then at least evidence of illegality. The Council did not condescend to identify what offences were or may have been committed during that week of protests. Counsel could do no more than repeat the proposition that the existence of arrests by the police established that proposition.
[66] During the week of organized protests in 'International Rebellion Week' from 6 to 11 October 2019 week, the Applicant attended only one protest and it was one in respect of which a police permit to march had been issued. All police directives issued in her march were obeyed, although in some cases individuals chose to disobey those directives. But as was elicited in cross-examination, her evidence, which was not undermined was that the core principle for which Extinction Rebellion stood was to engage in nonviolent action. She rejected the notion that Extinction Rebellion condoned illegality. Nothing was suggested to her to demonstrate otherwise, or for that matter to demonstrate unlawful acts were either planned or actually carried out. I accept that evidence.
[67] The Applicant rejected the proposition that Extinction Rebellion held itself out on its website as promoting activity which would work where the usual steps to influence climate change outcomes had not worked. She explained the language to be found there as engaging in nonviolent acts to demand government action immediately.
[68] She admitted she had in 2022 once been arrested herself, three years after the events of 2019 for unfurling a banner in parliament and for which she pleaded guilty to some minor offence of disturbing the legislature, and for which no conviction was entered.
[69] I am not persuaded to the view that based on what the Applicant said in her evidence under cross-examination that Extinction Rebellion and its members and affiliates engage in large scale, coordinated and premeditated unlawful activities, in furtherance of that organisation's aims and beliefs or that that unlawful conduct so pervades Extinction Rebellion's activities.
[70] Nor do I accept that her evidence showed that unlawful conduct was the raison d'être or, in the alternative, at least a substantial purpose of the organisation or a substantial part of its activities.
[71] Even if the contrary had been found, I find that the Applicant did not embrace or condone that unlawful conduct and I accept her evidence to that effect.

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[76] The case pleaded for the Respondent was that the actions between 30 September 2019 and 11 October 2019 were in whole or in part planned and arranged at the Extinction Rebellion meetings which occurred in the libraries owned or operated by the Respondent.
[77] It was put in cross-examination of the Applicant that there were hundreds if not thousands who participated on the protests and that there must have been a lot of planning. The Applicant rejected the idea that this group was connected around a single issue or that it was not a body that stood for particular things or that the ideas of members were black and white.
[78] I have referred already to the article, exhibit GJE-14, from August 2019 in which a police superintendent is quoted the saying that protesters were committing 'unplanned, disruptive activity'. This is evidence which is inconsistent with the Respondent's contention that it was planned in the libraries.
[79] Ms Le Roy was taken to exhibit GJE-3, a flyer entitled 'Welcome to International Rebellion Week', which was posted on the Extinction Rebellion Brisbane/Meanjin Facebook page on 7 October 2019. There were other similar documents exhibited to the Evans affidavit. Many were not copied so as to be legible. This flyer actually refers to planning 'a non-violent disruptive action with friends' and in that context 'pre-planned actions' occurring daily with participants meeting in a park at the beginning of each day for the day's events. Much was made of its reference to taking part in an action 'arrestable and non-arrestable roles available.'
[80] In cross-examination the Applicant was taken to this document that identified that participants would meet at the gardens, and that individuals could be involved in arrestable and non-arrestable things. She said in response not that she had anything to do with that but that none of the planning occurred in any Council library. Her evidence as to this was not challenged or undermined. In cross-examination, the Applicant said she had nothing to do with the creation of that flyer.
[81] Taken as a whole, the flyer spoke only of planning 'a non-violent disruptive action' but also identified as some of the many ways to be involved in that week, volunteering to sign up people for workshops, hand out flyers, work on stalls and enjoying other ways. On the reverse side was an event schedule. Nothing on the reverse side is relied on by the Respondent as suggesting law breaking was planned. A legible copy of exhibit GJE-5 does not mention any unlawful activity or getting arrested.
[82] I am prepared to accept that there were other documents or publications issued by Extinction Rebellion produced relating to that week and other times. They were set out in the Respondent's contentions.
[83] A flyer promoting a security workshop to occur on 15 September 2019 noted that 'Security and privacy is always a concern in these times of mass surveillance and increasing police powers ... especially if you are planning on partaking in civil disobedience against the state.'
[84] In a flyer entitled 'Civil Disobedience & Why It Works', it is observed that 'We do not want or need everyone to get arrested-as individual's situations differ and do not always permit this- but we do want everyone involved to support non-violent civil disobedience as a tool.'
[85] In a flyer entitled 'Despair Ends & Tactics Begin - How can social change happen at the monumental pace & scale that is now required to address the climate crisis? Come find out', listed workshops to occur between 12 and 26 September 2019 at each of the Nundah, Indooroopilly, Brisbane Square, New Farm and Toowong Public Libraries. Nothing was said there about planning International Rebellion Week.
[86] A flyer promoting International Rebellion Week noted that 'on 7 October 2019, civil disobedience in Brisbane will escalate for Rebellion Week. Thousands of rebels will descend on the Queensland capital over the period to take part in major actions, rebellions and disruptions- every day' and 'on Friday 11 [October 2019] we will conclude the week with a public occupation and shutdown of the William Jolly Bridge'.
[87] In a flyer promoting International Rebellion Week for each day of 8-11 October 2019, in the 'Brisbane Rebellion Week Event Schedule' appears an entry 'Swarming Flash Mob' to occur from 7.30am until 10.00am [coinciding with peak hour traffic].
[88] Ms Le Roy gave plausible evidence, which I accept, that whatever nonviolent direct action was planned to occur in 'International Rebellion Week', occurred in private homes and never at any Council library meeting rooms. It was put to her that this was in some way illogical, and in oral submissions described as having no 'currency'. She rejected this and went through all of the records of booking forms for library use to demonstrate, and I accept, that the evidence does establish, that what was presented there was a standard PowerPoint presentation about what is happening in climate change, what governments are not doing about it and the existence in general terms of the purpose of nonviolent action to pressure government.
[89] She gave evidence under cross-examination, which I accept, that the Grey Power and eventually the Extinction Rebellion group in Southeast Queensland was very small group of individuals which developed around Stop Adani and Lock the Gate. When she moved across to Extinction Rebellion, she knew the individuals who made the bookings at the libraries and did the presentations in the library meeting rooms in 2019, partly because she knew them all, since they were a tight-knit community.
[90] On those forms the meetings were identified as information sessions, and while the topics covered included nonviolent direct action at a general level, it was not with respect to those specific protests or indeed any specific protest action in International Rebellion Week or at any other time. I accept her evidence that she knew all individuals who ran these sessions, what the subject matter of their presentations was, or what they would have been. I reject the submission made for the Council that I should find as a fact on the evidence that unlawful or illegal actions were planned for International Rebellion Week or at any other time at any of those information sessions or in Council libraries. Apart from one reference in the description of the group 'including activities', (almost illegible on the material filed), in one of the booking forms for one meeting for a group described as an 'information meeting' for a 'climate crisis protest group nonviolent direct action re climate crisis' on 23 July 2019 well before International Rebellion Week. Almost all others referenced talks about climate change, PowerPoint presentations, information sessions, talks, giving a talk on a projector, introduction talk, environmental talks, for climate crisis activists for a 'cause environmental'.
[91] No evidence was called by the Council from any person who ever attended any of these meetings to say that unlawful or illegal actions were planned for International Rebellion Week or at any other time at any of those information sessions.
[92] When the Council chamber debated the resolution, one councillor demanded proof that the rooms were being used to plan unlawful or illegal actions. The mayor was asked a question about how many library bookings Extinction Rebellion made and had there been any problems with those bookings whatsoever. He was asked where was his evidence to justify the motion and this was properly a matter for the police to ensure that there is no illegal behaviour happening. None was produced or identified.
[93] As I noted earlier in these reasons, meetings were held on 11 August 2019, 13 August 2019, 29 August 2019 and 3 October 2019, at the Council's Indooroopilly Library on 7 July 2019, 27 July 2019, 15 September 2019 and 13 October 2019 (actually after International Rebellion Week, and at the Council's New Farm Library on 30 July 2019, 28 August 2019 and 25 September 2019. International Rebellion Week started on 6 October. There was one meeting three days before on 3 October, two in September, four in August. This infrequency is inconsistent with the intense planning Counsel for the Respondent suggested to the Applicant would have been necessary to organise all the things that happened in International Rebellion Week.
[94] None of the materials put together and exhibited to Mr Evans' affidavit made reference to, suggested, or even hinted at the suggestion that unlawful or illegal actions were planned for International Rebellion Week or at any other time at any of those information sessions or that people should attend them for that purpose.
[95] The Respondent alleged that it was a reasonable inference that the protest and other unlawful conduct by actions between 30 September 2019 and 11 October 2019 were in whole or in part planned and arranged at the Extinction Rebellion meetings which occurred in the libraries owned or operated by the Respondent. I reject that assertion as implausible and contrary to the direct evidence which I accept from the Applicant.

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[102] There was evidence from the Applicant, which I accept, that between 6 and 11 October 2019 there was an event called 'International Rebellion week'. It has been referred to earlier in reference to a flyer promoting International Rebellion Week relied on by the Respondent.
[103] The Respondent alleged that between 30 September 2019 and 11 October 2019, Extinction Rebellion carried out a series of actions which involved unlawful protests and unlawful activities including the disruption of traffic in the local government area of the Respondent using drums of concrete, concrete and dust spread over roads, wooden structures on roads, horse manure on roads, canoes glued to roads, a boat and trailer on roads, vehicles on roads, members of Extinction Rebellion glued or otherwise affixed to such structures, canoes, boats and vehicles. That resulted in the arrest of 129 people it was alleged. The Respondent sought to make out that case not by direct evidence from police, or anyone who personally observed what had occurred, but by Mr Evans' evidence. Direct evidence from police and documentary evidence of the arrests made and the offences allegedly committed, it can be assumed, would be readily available.
[104] The Respondent alleged that those actions resulted in widespread disruption of traffic in peak hours (when the actions were staged) and associated inconvenience, distress, delay and upset to the ratepayers in the local government area of the Respondent.
[105] Although the case pleaded by the Respondent focussed on that period between 30 September 2019 and 11 October 2019, Mr Evans swore to things he said happened throughout 2019. He said:
1. Throughout 2019, people said to be part of the group Extinction Rebellion conducted numerous protests including a slew of high profile and highly disruptive protests in the CBD of Brisbane.
2. I personally recall, and the documents I have located in the Council's records confirm that, those protests seriously disrupted traffic movement within the CBD of Brisbane during morning peak hour and caused significant disruption.
3. The protests, amongst other things, involved the disruption of peak hour traffic in the local government area of the Council using drums of concrete, concrete and dust spread over city streets, wooden structures on city streets, horse manure spread on city streets, canoes with people in them glued to streets, a boat and a trailer on a city street, people glued or otherwise affixed to structures and objects on city streets.
4. During the period of the above actions the Council received, from people in or visiting Brisbane, numerous reports of widespread disruption to traffic in peak hours, inconvenience, distress and delay. The media at the time reported that approximately 129 people were arrested in connection with the abovementioned activities.
[106] The Applicant's response to this evidence was not to formally object to it or specifically dispute it, but to say:

[88]

[110] The Respondent alleged that on its proper construction, the motion was directed at the use of Council meeting rooms in libraries owned or operated by the Respondent by organisations that advocate or incite illegal activities, and identified, accurately, Extinction Rebellion as such an organisation and was not concerned with the political beliefs or (lawful) activity of Extinction Rebellion or any other organisation or person.
[111] This case was therefore conducted on that narrow basis, and did not deal in any focussed way with the ways in which, if the facts as found did not uphold the contention that the resolution was directed at the use of Council meeting rooms in libraries owned or operated by the Respondent by organisations that advocate or incite illegal activities or did not solely do so, but also potentially done on the basis, the protected attribute was a substantial basis for the discriminatory conduct, and where there existed multiple reasons for the decision to use the language of the AD Act, even though there were multiple bases for the conduct.
[112] Section 10(4) of the AD Act provides that if there are two or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
[113] The Respondent's submissions did not address the applicability of section 10(4) of the AD Act or of the relative significance of the various factors which were referenced by the speakers in favour of the motion and produced the Councillors' vote in favour of the motion. Hence the approach taken by the Council was a blanket approach and was taken to the ultimate question in which it sought to argue for only one basis for the decision and the letter enforcing and notifying of it.
[114] The Tribunal took the Respondent to the statements made during the two arguments when the motion was put to point to the fact that there might be seen to be a number of reasons for the decision. The response was to say that the Respondent 'did not necessarily embrace the division of those aspects'.
[115] It is not difficult to see that difficulties can arise when a Respondent has many reasons for treating the complainant less favourably. As Kirby J has pointed out,[6] '[d]iscriminatory conduct can rarely be ascribed to a single "reason" or "ground"' and, '[i]n some cases, where multiple possible causes for discrimination are presented, the task of characterising the "grounds" is a difficult one which calls for judgment and discernment'.

[116]

[136] Clearly there was more than one basis expressed by the Mayor in this introductory speech as to why the motion was being put and should be passed. They included first, the perception that Extinction Rebellion advocate or incite illegal activities. Secondly, that the Council should 'enforce' this guideline which had apparently just been identified as in existence or its potential identified, which makes rooms 'unsuitable' to be used for activities which advocate or incite illegal activities, such as trespass, vandalism, theft, violence or hate speech. I say 'apparently just been identified as in existence or its potential identified' because of the Mayor's statement that he had a look at what policies may be in place or what policies may exist on the matter and that this was not something that the city has experienced in the past.
[137] Thirdly, the bases included that Extinction Rebellion was or was perceived to have been causing major disruption to the city during peak hours and was doing so deliberately, and in that context that they were also encouraging people to break the law. Fourthly, that Extinction Rebellion was an organisation that was organised enough to disrupt the city, and it was time that Council made sure that they were not using Council facilities to organise or plan their disruption of the city. Fifthly, 'this', whatever that specifically referred to, (in context apparently that the Council make sure that Extinction Rebellion are not using Council facilities to plan their disruption of the city) was something the vast majority of Brisbane residents would be supportive of.
[138] I pause to observe that the motion did not just operate in a way that involved the Council making sure 'that they are not using Council facilities to plan their disruption of this city'. It meant no longer accepting bookings for meeting rooms or other spaces for the group Extinction Rebellion or anyone looking to hold a meeting on their behalf, whatever they proposed to do at such meetings, and even if they were not using Council facilities in the future to plan the disruption of the city.
[139] The stated justifications were not, despite counsel's oral submission to the contrary, referable just to the recent conduct in the demonstrations.
[140] Then Cr Matic spoke in what amounted to his explanatory speech as to the basis for the motion and said in part relevantly:

[148]

[149] At the heart of what the Mayor was contending was that the reality of civil disobedience is about breaking the law.
[150] The motion was then put and was passed.
[151] I have identified the stated bases in earlier speeches in paragraphs 138 and 142 above. In addition or supplementary to those, from these later passages one can elicit the following as stated bases:
1. Extinction Rebellion is about civil disobedience which is about breaking the law.
2. The motion concerned groups that incite people to break the law.
3. Extinction Rebellion says about itself that it is a complex web of small autonomous groups across the world who are evolving and they promote, train and participate in peaceful direct action. They transform their despair tactics into tactics of rebellion. They say they break the rules to convey that they are serious and unafraid.
4. Extinction Rebellion has caused damage and inconvenience to people throughout Brisbane.
5. Extinction Rebellion was 'in breach' of the guideline and the motion was to reiterate the importance of the guideline.
6. Extinction Rebellion meet some of the criteria referred to in the guideline around their illegal activity, such as trespass, and vandalism.
7. The State Government was taking needed actions so that the city can function. The Council cannot be any different, implicitly that this was going to achieve the outcome of ensuring the city can function.
8. This was what Council and as a government needed to do to bring some kind of certainty back to people's activities.
9. People had been impacted by damage and inconvenience by this group of people who are being and should not be supported in some form or fashion by the resources of Council. That is the position of the Mayor and that is why the motion was being put that day.
10. It was important that the Council did not support the kind of activities that in respect of those activities, even the State Government has said enough is enough.
11. Council rooms are not to be used by an organisation or individuals that cause wide-scale disruption to the city, day upon day, week upon week.
12. Council rooms funded by council funds are not to be used for encouraging, inciting and training people to break the law.
13. It was not for Council to support those kinds of activities, i.e. wide-scale disruption to the city, day upon day, week upon week, or disrupt the lives of Brisbane residents.
14. Inferentially, that prohibiting use of library facilities was a way to remove any perceived or actual support the Council might be providing to Extinction Rebellion.
15. Many people had approached the Mayor, and one could see on radio and television, that people are frustrated at these actions, where the actions of Extinction Rebellion are actually impacting on the day to day lives of everyone.
16. The resources of the Council, the rates that people pay to provide those services should not be utilised for activities which are illegal, for activities which cause inconvenience, and for activities which obviously are contrary to the guidelines, which are common sense.
17. Extinction Rebellion was an organisation that incites, encourages people and trains people to break the law and it won't have the privilege of using Council funded facilities or ratepayer funded facilities.
[152] Some of what was said in those passages also suggested the Council was sending a political message to constituents that they did not approve of and would not be seen to support a group that caused such disruption. That was to signal in a political context, by an arm of government to members of Extinction Rebellion disapproval of its conduct in engaging in civil disobedience, ironically then directed at what I have found was a political movement with the purpose of encouraging governments to take action to prevent climate breakdown and the extinction of species.
[153] What was not said in the course of those speeches was what the Respondent contended was the basis for the motion and the letter that followed it, namely that Extinction Rebellion and its members and affiliates engage in large scale, coordinated and premeditated unlawful activities, in furtherance of that organisation's aims and beliefs and that that unlawful conduct so pervades Extinction Rebellion's activities that it might properly be identified as its raison d'être or, in the alternative, at least a substantial purpose of the organisation or a substantial part of its activities.
[154] It was certainly part of the basis for the motion and the letter that followed that Extinction Rebellion says about itself that it is a complex web of small autonomous groups across the world who are evolving and they promote, train, and participate in peaceful direct action and that they transform despair tactics into tactics of rebellion. They say they break the rules to convey that they are serious and unafraid. Council rooms are not to be used by an organisation or individuals that causes wide-scale disruption to the city, day upon day, week upon week.
[155] Since there is no relevant distinction between a person having a protected attribute, and the perception of a person (the Council) having a protected attribute or characteristic associated with that attribute, it is not strictly necessary to decide if the Council's perception or belief as to what Extinction Rebellion did or stood for was correct or not. It is enough that the perceived attributes identified by the Mayor and the councillor were the basis for the decision constituted political belief or activity.

[150]

[156] The Respondent conceded in the submissions it filed just before the hearing that it was content to accept that, 'but for the unlawful nature of the political activities engaged in by Extinction Rebellion', the Applicant's membership of, and affiliation with that group would constitute 'political belief or activity' of the kind contemplated by s 7(j) of the AD Act. This seems to accept that she was a member or affiliate of a group, without a distinction being drawn between those concepts.
[157] First, it should be observed that it is affiliation with the group, including specific things that she or other members of the group being represented in the representative proceeding engaged in, that must be the focus.
[158] Secondly, the concession made is elusive in its effect since it does not provide a complete answer to the questions this case throws up, unless the only basis for the decision was the Applicant's membership of, and affiliation with that group. If there were other substantial bases for the decision, not the mere membership or affiliation with the group, including specific things that she or other members of the group being represented engaged in, constituted a 'political belief or activity' then the decision may have been discriminatory on the bases of those other political beliefs or activities. For example, a decision to 'ban' a person from using facilities because they were a member of a political party would be one basis for the conduct. A 'ban' based on the fact that although a member of that party, the person advocated for some unpalatable policy (even if the party had it as a policy) would not necessarily be the same basis for the decision.
[159] The Respondent submitted however that on account of the unlawful nature of the political activities (or the unlawful nature of such a substantial part of those activities) engaged in by Extinction Rebellion, it was the Council's position that the Applicant's membership of, and affiliation with that group is not 'political belief or activity' of the kind contemplated by (and therefore protected by) the AD Act. I shall return to this contention later.
[160] In Carey, the Appeal Tribunal held at [95] that the dismissal of an employee, Mr Melchert, was a true political issue in the Council. The fact that the four Councillors voted in favour of his conditional dismissal of the employee, no doubt reluctantly, and intending to prevent it happening in due course, did not alter this. Their resentment against the Applicant Mr Carey over his support of the mayor in what turned out to be a successful manoeuvre in dismissing Mr Melchert could therefore be regarded as resentment founded upon Mr Carey's political activity. This, it was held, was the dominant factor in the dismissal and was discriminatory on the basis of political belief or activity.
[161] Carey dealt with the decisions that concern what was within the notion of political belief or activity.
[162] The Appeal Tribunal rejected an argument that 'an ideological basis' was a necessary requirement of the 'political belief or activity'.
[163] There the Tribunal held:

[174]

[180] The latter statements were cited with approval recently in Lattouf v Australian Broadcasting Corporation (No 2).[15]
[181] The conduct which was the political activity here was the holding of meetings in Council libraries in order to discuss, give presentations for or even plan, (if contrary to findings of fact I have made) protest marches to put pressure on government to do something about climate change. It is activity concerned with the process of Government.
[182] The perceived attributes identified by the Mayor and the councillor, and listed above, individually or taken with others as the basis for the decision, constituted political belief or activity may not all fall within that definition, but most constitute a substantial basis for the conduct that led to the prohibition, including the carrying on of peaceful protest that disrupted the residents of Brisbane. Not only was membership of and affiliation with Extinction Rebellion 'political belief or activity' as the Respondent conceded (qualified by the point that it acted unlawfully) but the things that it was identified as what they were doing in their protests, whether lawful or unlawful, were also represented as political belief or political activity.
[183] The belief or ideology which was the political belief here was the actual, or at least perceived by the Respondent to be, belief that public protest marches should be planned and take place which involved the activities to put pressure on government to do something about climate change. It is also concerned with the process of Government.
[184] In and of itself, the letter of 16 October 2019 focussed on the membership of Extinction Rebellion, as the basis for that prohibition. That did not distinguish between members who did not engage in civil disobedience in the period in question, like the Applicant, but focused on membership in the group. Its direct focus then was on the membership in a politically motivated pressure group and disentitled any member of it from using the library for that reason alone.

[176]

[185] It was conceded in oral submissions for the Respondent that it may well be that protest is not unlawful but that I should draw inferences that it was unlawful conduct from the fact that police made arrests.
[186] Section 22(1) of the Human Rights Act 2019 (Qld) ('Human Rights Act') provides that every person has the right of peaceful assembly. The right of peaceful assembly, commonly referred to as protesting, is considered a key pillar of a democratic society. It is an article of the International Covenant on Civil and Political Rights, to which Australia is a signatory.
[187] The Peaceful Assembly Act 1992 (Qld) ('the PAA') gives persons the right to hold peaceful public assemblies in Queensland. The objects of the PAA are set out in section 2 and include, among other things, to recognise the right of peaceful assembly and to ensure, so far as it is appropriate to do so, that persons may exercise the right to participate in public assemblies. The right of peaceful public assembly is set out in section 5. This right is subject only to such restrictions as are 'necessary and reasonable' in the interest of public safety; public order; or the protection of others' rights and freedoms. This includes rights of members of the public to enjoy the natural environment; and the rights of persons to carry on business.
[188] The scheme of the PAA is that protesters cannot be prosecuted, for example, for 'obstructing a public place' under the traffic management laws, provided the public assembly is authorised, peaceful; and held substantially in accordance with any conditions of authorisation. The PAA overrides other laws relating to the right of peaceful assembly, the movement of traffic or pedestrian, loitering, or the use or obstruction of a public place. Implicitly it recognises that peaceful protest, even that which might involve the commission of offences such as failing to abide a police direction to move on, does not cease to be unauthorised protest or assembly merely because some offence is committed.
[189] Hamilton J in Commissioner of Police (NSW) v Gabriel[16] observed in relation to New South Wales laws that provided for prohibition of an assembly, that the making of a prohibition order does not render the conduct of or participation in any assembly unlawful. The making of a prohibition order merely deprives participants of protection that s 24 of the Summary Offences Act 1988 (NSW) would otherwise afford them. Hamilton J, in discussing Part 4 of the Summary Offences Act 1988 (NSW), at [1] observed that:

[192]

[197] As I observed at paragraphs 10 and 50 of these reasons, the Respondent alleged in its Response to the Statement of Contentions that Extinction Rebellion, in purported furtherance of its goals, it conducts 'actions' which involve, amongst other things, acts of public disruption and disobedience, directed at causing inconvenience, delay, disruption, anger and provocation of the community and civil agencies generally, with a view to extracting concessions or change from governments and communities in furtherance of certain 'demands' which it makes.
[198] The Respondent contended in its submissions filed just before the hearing that Extinction Rebellion engaged in 'large scale coordinated and premeditated unlawful activities'.
[199] Also, in those submissions filed by the Respondent just before the hearing, the Tribunal was invited to draw 'at least' the following two conclusions from Mr Evans' evidence. First, that 'Extinction Rebellion and its members and affiliates engage in large scale, coordinated and premeditated unlawful activities, in furtherance of that organisation's aims and beliefs and that that unlawful conduct so pervades Extinction Rebellion's activities that it might properly be identified as: (i) its raison d'être; or, in the alternative: (ii) at least a substantial purpose of the organisation or (iii) a substantial part of its activities'. The first thing to be said about that was that Mr Evans' evidence said no such thing. And if he had, he had no actual personal knowledge of such things.
[200] Elsewhere during oral addresses specifically in the context of inviting a factual finding that Extinction Rebellion had an 'overall propensity to engage in illegal behaviour', counsel identified that the conduct that he was referring to as unlawful or illegal behaviour or 'universally unlawful' as he described it as well, was actually a shorthand way of saying, 'illegal or unlawful conduct or attracts police attention or conflicts with the mores of urban or city life', and conduct that was 'extreme'. I sought further submissions on this multifaceted notion of unlawful conduct.
[201] During oral argument in the context of my being invited to conclude that Extinction Rebellion had an 'overall propensity' to engage in illegal behaviour or that 'a substantial part of its activity was a commitment to unlawful behaviour', I asked counsel what laws were broken, what offences were committed that reflected that propensity. None were identified as such, it was to engage in 'nonviolent direct action'. I was told it was a matter for inference from the making of arrests. In my view that arrests were made is entirely equivocal in relation to showing whether Extinction Rebellion and its members and affiliates engage in large scale, coordinated and premeditated unlawful activities, in furtherance of that organisation's aims and beliefs or that that unlawful conduct so pervades Extinction Rebellion's activities. That some people break traffic or public order laws while protesting does not reasonably lead to the conclusion that this was the raison d'être; or, in the alternative, at least a substantial purpose of the organisation or a substantial part of its activities. I prefer the direct evidence of the Applicant as to what Extinction Rebellion stood for and did.
[202] The onus was on the Respondent to establish the proposition that Extinction Rebellion carried on those activities and had that purpose and was an entity that promoted and engaged in unlawful acts. I was not taken in any detail to the exhibits to the affidavit of Mr Evans. Much of what he exhibits is illegible, even when enlarged.
[203] Mr Evans set out in a table examples, GJE-3 to GJE-11, of 'literature and material published by Extinction Rebellion' between June and October 2019 which were either: (a) obtained by the Council and retained in its records; or (b) located upon a search by the Council's lawyers, Wotton + Kearney, and provided to the Council in the course of this proceeding. He did not identify which were obtained by the Council and retained in its records and when it did obtain them. The Applicant points out that many of them have a print date which shows they were compiled much later. I will nevertheless treat the documents as being what they purport to be, contemporaneous records from 2019 of things that someone, not the Applicant wrote or said about Extinction Rebellion between June and October 2019.
[204] Mr Evans also exhibited 14 media articles published from June 2019 to October 2019.
[205] There is no evidence that any of the published material he exhibited was known of, believed to be true or taken into account by the Councillors. The media articles seek to prove by documentary hearsay what activity persons who identified as part of Extinction Rebellion claimed it did or might do. No one for the Respondent says the Evans exhibits were known about or considered or referenced by any person involved in the decision to prohibit use of library facilities
[206] During the course of the hearing, the Respondent by its counsel enthusiastically invited the Tribunal to accept as things that were undisputed or uncontested evidence because they were from the affidavit of Mr Evans. To similar effect, paragraphs 3 to 5 of the Respondent's Further Submission dated 8 May asserts that Mr Evans' Affidavit is 'uncontested'. Oral submissions were made several times to similar effect by the Respondent's counsel.
[207] Ms Le Roy pointed to the fact that the table of media articles he exhibits is silent as to when those 14 exhibits were sourced by, or came to the attention of, Brisbane City Council. The only evidence of the latter is a 'print date and time' (repeated in the top left corner of pages 187 to 198 of the attachments), being 10 June 2024, four and a half years after the relevant resolution was passed. The council minutes of the meeting show that no-one during the debates referred to any of those 14 documents nor were any of them tabled on 15 October 2019.
[208] Ms Le Roy's response to the Evans affidavit was to dispute its relevance and accuracy. It was neither undisputed or uncontested. As the Applicant identified numerous times including in written submissions immediately after the hearing but also in her 29 May 2025 submissions, she most certainly did challenge that evidence and the conclusions sought to be drawn from Mr Evans' evidence inter alia of what Extinction Rebellion stood for and what illegal or unlawful conduct occurred and by whom and when; or as it was put by the Respondent in its submission of what was 'specifically engaged in when and by whom ...' is limited to that emerging directly, or by inference, from the evidence of Mr Evans', as if I could ignore not only the Applicant's evidence even though she was an actual participant in some of the demonstrations and other events of that week, but should not read the material he did curate and exhibit as a whole and put the things said in the exhibited material in context.
[209] In her written submissions, Ms Le Roy pointed to the Affidavit of Mr Geoffrey Evans and noted that:

[194]

[210] I turn now to what the exhibits GJE-3 to 25 inclusive to Mr Evans' affidavit show, taking them at face value.
[211] A careful reading of the literature and material published by Extinction Rebellion or by the media, reveals that although selectively, one can see references in the published material by or on behalf of people claiming to speak in support of Extinction Rebellion to suggestions that individuals engage in peaceful protest in ways that may result in them being arrested, the preponderance of the published material reveals that it has adopted a multi-factorial way of promoting the political opinions goals and activities, and it certainly is not inherently one which promotes unlawful conduct or even in any way, directly, does so.
[212] What is significant is that amongst all the material the Respondent could or might have found to support its contentions that it found none which clearly showed 'overall propensity' to engage in illegal behaviour or that 'as substantial part of its activity' was a commitment to unlawful behaviour.
[213] By way of example, in the material dealing with the most complained about events that occurred in the month when Council passed its resolution, namely those in rebellion week in October 2019, there is an event schedule, exhibit GJE-5, which is a list setting out on a full page, the planned activities for that week. Those activities included the sale of merchandise, engaging in a sing-along, listening to international rebellion week speakers, marching with First Nations people from West End, holding musical concerts in the gardens, a funeral possession for the planet, a hip hop night, holding a water birth for a better Earth function and occupying the William Jolly Bridge as well as having a 'swarming flash mob'.
[214] Only the latter two, occupying the William Jolly Bridge and having a 'swarming flash mob' suggest the possibility of occupying some space or swarming or the like. There is no statement that encourages or promotes any unlawful activity in the event schedule, exhibit GJE-5. The substantial majority of the planned events did not involve any identified civil disobedience or street marching, permit approved or otherwise. They reveal a multifaceted approach to achieving the political goals of Extinction Rebellion.
[215] The document exhibit GJE-3 flyer entitled 'Welcome to International Rebellion Week', which was posted on the Extinction Rebellion Brisbane/Meanjin Facebook page on 7 October 2019 actually refers to planning 'a non-violent disruptive action with friends' and in that context 'pre-planned actions' occurring daily with participants meeting in a park at the beginning of each day for the day's events. Much was made of its reference to taking part in action with 'arrestable and non-arrestable roles available'. The fact that there were some things that might happen that might lead to an arrest does not, in my view, prove on the balance of probabilities an 'overall propensity' of those in Extinction Rebellion to engage in illegal behaviour or that a substantial part of its activity was a commitment to unlawful behaviour.
[216] Another document, exhibit GJE-8, headed 'Despair ends and tactics begin' said to have been published on 11 September 2019, invites people to come to an introduction to Extinction Rebellion workshop to learn how social change can happen to address the climate crisis. The same point can also be made here as was made above, it demonstrates no overall or indeed any propensity of those in Extinction Rebellion to engage in illegal behaviour.
[217] Taking the media reports for 2019 exhibited to Mr Evans' affidavit at face value, the offences described were individuals obstructing traffic, causing an obstruction on a pedestrian crossing and public nuisance, or were detained for breaching the peace. None were charged with a riot offence.
[218] When one turns to the bundle of exhibits said to be media coverage, GJE-12 to 25, it is evident that the material discloses a wide range of opinions, beliefs and relevant circumstances depending upon the individual writing the story or what the beliefs of the reporters or interviewees were, or what role someone is said to have had in any of the protest activities.
[219] Taking, for example, an article about protesters being locked inside a canoe on 27 June 2019. The article shows they were holding signs and handing out fliers for another demonstration in another month. The police moved the group on and they left, but then locked themselves together while sitting inside a canoe near QPAC. One protester said the reason for their action was because the earth was facing mass extinction and that it needed to stop happening. Another said they would continue to peacefully protest until there was change. They said it was their last resort. Fire emergency crews removed them. The article goes on to summarise some other incidents where protests occurred, noting that some protesters were charged with public nuisance. Some were detained for breaching the peace. This is evidence that there were acts of civil disobedience for the political cause.
[220] Exhibit GJE-13 was an article in the Courier Mail newspaper on 18 July 2019. It reports what one person who was in police custody and refusing to sign for watch house bail said. He was said to be one of the Extinction Rebellion protesters who glued themselves to a busy road during peak hour and were arrested. The article then goes on to quote from various political leader's views. It refers to two individuals charged with traffic offences and small fines imposed for causing an obstruction on a pedestrian crossing. One of those accused of gluing herself to a road is reported to have said that continuing to protest was all about putting the spotlight on the protesters, and drawing attention to what they were doing, and that they have to resort to civil disobedience, because it has become clear that the law has no regard for the planet. This is also evidence that there were acts of civil disobedience for the political cause.
[221] Exhibit GJE-14 was an article from August 2019 which reports on so-called Rebellion Day and summarises that police have made almost 70 arrests. The Respondent relies on a statement where it says that one protest organiser said, 'if we can fill the jails, we'll fill the jails'. That comment about filling jails came from one person who said that causing disruption for commuters was the goal of the demonstration. That was consistent with what the Applicant also swore was the goal.
[222] The context was the one protest organiser saying that the protesters were happy to go to jail for their cause and being happy to sacrifice their civil liberties, and labelled the police response appropriate. The article also identified that protesters disrupted the Lord Mayor's press conference and the organisers were planning more protests. It refers to someone being charged with obstructing traffic. This is further evidence that there were acts of civil disobedience for the political cause.
[223] In the article someone who described herself as a spokeswoman said some intersections had been blocked twice and occupied, and that they knew that what they had tried so far to get some kind of action on the climate crisis had not worked. She said that civil disobedience had worked in the past, and it can empower people and mobilize a percentage of the population, then they would remain nonviolent, they should have a policy shift. It referred to some activists linking arms in the heart of Queen Street before they were all taken away by police. This is evidence that there had been and would be further acts of civil disobedience for the political cause.
[224] Also, in that article GJE-14 from August 2019, a police superintendent is quoted as saying that it was disappointing to see roads used by emergency services blocked by demonstrators and that the protesters were committing 'unplanned, disruptive activity'. This is evidence which is inconsistent with the Respondent's contention that it was well planned, and in fact planned in the libraries.
[225] Littered throughout these articles are negative comments from politicians and others from many different political parties. The articles show that to his credit the Mayor sought to engage with these protesters and like most of the politicians at that time they were all frustrated with the way the city was being managed or not being managed as the case may be.
[226] I am not persuaded to the view that based on the material exhibited to Mr Evans' Affidavit, nor the document which the Mayor referred to nor what was said in the debate on the motion, nor based on what the Applicant said in her evidence under cross-examination that Extinction Rebellion and its members and affiliates engage in large scale, coordinated and premeditated unlawful activities, in furtherance of that organisation's aims and beliefs or that that unlawful conduct so pervades Extinction Rebellion's activities. That some people break traffic or public order laws while protesting does not reasonably lead to the conclusion that this was the raison d'être or, in the alternative, at least a substantial purpose of the organisation or a substantial part of its activities.

[196]

[227] There is a considerable body of material which has been published about the history of civil disobedience and its purpose, particularly in the law, some of which I referenced earlier in these reasons, and some literature on this[19] was specifically brought to the attention of the parties for comment and submissions as to relevance.
[228] During closing submissions, Counsel for the Respondent referred to the illegal or unlawful conduct as being unlawful activities which 'conflicted with the mores of urban or city life' suggesting some unlawfulness attached to doing things that conflicted with the mores of urban or city life.
[229] After the hearing concluded, the Respondent was invited to make any submission it wished in relation to what unlawful activities are referred to, what illegal conduct or activity was specifically engaged in, when and by whom, and how those unlawful activities conflicted with the mores of urban or city life.
[230] The response did not directly engage with the issue raised but instead again recited that 'the uncontested evidence of Mr Evans[20] was that during 2019, intensifying in September and October of that year and culminating in "International Rebellion Week" from 7 until 11 October 2019, members and affiliates of Extinction Rebellion engaged in a series of unlawful protests and other unlawful activities in the Council's local government area which resulted in the arrest of approximately 129 people'.
[231] Mr Evans' evidence did not in fact say that. He made no reference at all in the relied-on paragraphs to 'unlawful protests and other unlawful activities' or that they 'resulted in the arrest of approximately 129 people'. He did say that the media reported that approximately 129 people were arrested.
[232] The response said in relation to the expression used in oral submissions about unlawful activities which conflicted with the mores of urban or city life.
1. If it is right (recalling no attempt was made by the Applicant to prove such a thing) that some of the things done or conduct undertaken was not strictly unlawful in some respect (or if some of those who perpetrated it, and were arrested for it, were, for example, not charged), the point that emerged in discussion at the hearing was that, even to that extent, the conduct itself, at least conflicted with the mores of urban or city life and so still warranted the epithet 'unlawful' for the purposes of the Council's submissions.
2. The term 'conflicted with the mores of urban or city life' was not used as a term of art and it should not be elevated to that position. As a fact, and to the extent it matters, the Council submits, the conduct in question did warrant that criticism...
[233] There was no onus on the Applicant 'to prove that some of the things done or conduct undertaken was not strictly unlawful' although I find that she gave direct evidence to that effect in any event and which I accept.
[234] I have set out already the legislative scheme in Queensland that permits protest including disruptive protest. The Australian Constitution infamously contains limited express rights. In Australian Capital Television Pty Ltd v Commonwealth,[21] the Australian High Court found that a freedom of political communication was implied in certain constitutional provisions that require that Parliament be 'directly chosen by the people'. This was found to apply to legislation affecting the physical conduct of protest.[22] Apart from those decisions, there are other decisions[23] of the Australian High Court which have tried to deal with how to understand civil disobedience and treat legislation seeking to deter its exercise by increasing criminal penalties.
[235] Neither suggests that protest in ways which conflicted with the mores of urban or city life was unlawful or illegal.
[236] I reject the proposition that Extinction Rebellion engaged in unlawful activities which 'conflicted with the mores of urban or city life'. The right to peaceful protest including in ways that disrupt traffic in peak hour and cause inconvenience, even mayhem during peak hour traffic, does not conflict with the mores of urban or city, but even if it did so conflict, it does not lose the protections against discrimination on the basis of political belief or activity.
[237] There is no doubt that, whether it was so properly characterised, that one of the bases for the decision by the Council was that Extinction Rebellion promoted conduct which was illegal and used the libraries to organise it. It did not in fact do so. That illegality or belief in the use of civil disobedience and planning it in libraries was seen by Council as characteristic of members of, or affiliates of, Extinction Rebellion which it considered a basis for its political beliefs and activities.

[210]

[248] No support was provided for the proposition that this legislation was fundamentally about fairness. It is, of course, legislation that is directed to prohibiting discrimination against persons on the basis of certain protected attributes, not some amorphous, generalised notion that all people are to be treated fairly. Nor does it follow that even if that is what the legislation is designed to protect, one can conclude that it is not unfair to discriminate against persons who engage in some unlawful activity, particularly if the conduct carries relatively minor and insignificant culpability (such as infringing traffic laws or ignoring a police directive to move somewhere) or even if were more serious in terms of penalty or other consequence.
[249] It has long been accepted that anti-discrimination statutes are beneficial, human rights laws that ought to be given a purposive, and 'fair, large and liberal', interpretation.[25]
[250] The notion that an entity that engages in civil disobedience, law breaking in part, as a way to conduct their political activity and the belief that this is an appropriate way to achieve one's political goals would not be the subject of the protection from discrimination on the basis of that attribute, would involve an unwarranted imposition on, or constitute a significant reading down of the protections offered by the AD Act. It would not be a fair, large and liberal, interpretation but rather a restricted interpretation which involves the introduction of words that do not appear in the AD Act. The AD Act sets out numerous defences and exclusions to its operation. Clearly the parliament did not expressly exclude discrimination on account of a person's participation in unlawful political activity of any kind, nor excuse such conduct if it occurred. The Respondent advanced no submission to the contrary.
[251] As I also mentioned earlier in these reasons, elsewhere during oral addresses, specifically in the context of inviting a factual finding that Extinction Rebellion had an 'overall propensity to engage in illegal behaviour', counsel identified that the conduct that he was referring to as unlawful or illegal behaviour or 'universally unlawful' as he described it as well, was actually a shorthand way of saying, 'illegal or unlawful conduct or attracts police attention or conflicts with the of urban or city life' and conduct that was 'extreme'. I sought further submissions on this multifaceted notion of unlawful conduct.
[252] The respondent conceded that there is no authority to which it can point to that lends any assistance to this contention, but refers to one decision in Ritson at [56] which counsel suggests, at a broad level, assists, but concedes that the decision makes no finding and engages in no discussion in relation to any such topic.
[253] In Ritson, the respondent alleged the relevant political belief or activity of Mr Anning and his supporters (of whom the Applicant was one) to be 'so extreme that they were not "political belief" and therefore did not have the protection of the ADA.' However, that contention was not developed 'at all' at trial and was not supported by any evidence.
[254] Paragraph [56] of Ritson says in the context of a general discussion about the general effects of illegality on some kinds of claims:

[214]

[259] The current test[27] in section 10 of the AD Act involves determining the appropriate comparator group for proportional comparison and to ask whether the complainant was treated less favourably than the comparator in those circumstances. This has been shown to be problematic.
[260] The comparator is the predominant means of determining causation in Australian discrimination law. The comparator is an actual or hypothetical person who does not have a particular protected attribute (sex, race, disability etc). Courts construct the comparator and are required to place them in similar factual circumstances to the complainant. Then, it is necessary to ask whether the complainant was treated less favourably than the comparator in those circumstances. If the answer is yes, that generally establishes the relevant discrimination (subject to defences). The comparative formula is found in the formulation of the 'less favourably' tests in the Sex Discrimination Act 1984 (Cth) s 5A, the Disability Discrimination Act 1992 (Cth) s 5 and the Age Discrimination Act 2004 (Cth) s 14.
[261] The use of comparators has attracted stinging criticism. It was described as akin to conceptual 'shackles' in the joint dissent of Kirby and McHugh JJ in Purvis v New South Wales[28] ('Purvis'). Indeed, dicta from the House of Lords[29] has suggested that comparators should be relegated to the status of analytical tools for reaching a conclusion of discrimination rather than necessary preconditions. Numerous bodies have suggested that the comparator test should be simplified at the federal and state levels. The NSW Law Reform Commission in its 1999 review of the Anti-Discrimination Act 1977 (NSW) identified at page 279 'widespread dissatisfaction... conceptual difficulties... artificiality and resulting complexity'. More recently, the Australian Human Rights Commission noted, 'the application of the comparator test ... has presented significant difficulties, including complexity in interpretation and uncertainty of outcome'.[30]
[262] The AD Act s 10(4) provides that if there are two or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. The focus here is on basis for conduct, not motive or intent.[31]
[263] That in turn requires a careful consideration of what the offending conduct is, not the reasoning process that went on in the heads of those whose actions led to the offending conduct occurring.
[264] The High Court in Australian Iron & Steel Pty Ltd v Banovic[32] ('Australian Iron & Steel') was concerned with allegations of direct discrimination on the basis of sex, or gender. It was alleged that workers were retrenched because they had not been employed before a particular date. It was said that this amounted to discrimination on the basis of gender because the waiting period for employment with that employer was for a longer period for women than it was for men. Hence female workers were being retrenched because the male workers had in effect been employed longer, and before the relevant cutoff date. In the joint judgment of Justices Deane and Gaudron it was held that:

[220]

The words "on the ground of the status or by reason of the private life of the other person" in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193-4, and the statements of Deane and Gaudron JJ (at CLR 176-7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1). With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within section 17(5). The words "on the ground of" and "by reason of" require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently "on the ground of" status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then "the ground of" the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted "on the ground of the status or by reason of the private life" of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life.

[232]

[278] As Justice McHugh said in Waters 'on the ground of' and 'by reason of' require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of 'the victim'.
[279] Hence the protected attribute to use the language of the Queensland Act, in this case, the Applicant's political belief or activity, must be at least one of the factors which moved the discriminator to act as he or she did. And as his Honour said, of course, in determining whether a person has been treated differently 'on the ground of' that matter, this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of sex, then 'the ground of' the act of the discriminator was the sex of the victim.
[280] The Respondent submitted that that the appropriate comparator is a person who is not a member of or affiliated with Extinction Rebellion (the relevant political belief or activity/attribute), but who is a member of or affiliated with an organisation which has a 'similar propensity and history as Extinction Rebellion to engage in unlawful activities'.
[281] As I mentioned earlier, the Respondent says that the presence of the council guideline shows the Applicant was treated no less favourably than others on the basis of her beliefs or activities because applying the guideline meant that any other person who is a member of or affiliated with an organisation which has a 'similar propensity and history as Extinction Rebellion to engage in unlawful activities' would also have been prohibited from using Council libraries.
[282] Identifying one comparator here is an all but impossible task because of the numerous bases for the passing of the motion.
[283] It would, first, be any person who was not a member of Extinction Rebellion who wished to book a room for information sessions on climate change and engaging with government over it. Extinction Rebellion affiliates and members would be disallowed use but others would not be prohibited from making a booking. The Applicant was treated less favourably than those others.
[284] Critically the ban was not on the use of rooms contrary to any policy in the guideline about doing unlawful things in the library rooms or planning them there, it disallowed use to the group for any purpose at all.
[285] Otherwise, other examples of comparators would be:
1. A person who is not a member or affiliate of Extinction Rebellion who engages in civil disobedience and/or breaks the law.
2. A person who is not a member or affiliate of Extinction Rebellion who incites people to break the law.
3. A person who is not a member or affiliate of Extinction Rebellion who promotes, trains others in and participates in peaceful direct action.
4. A person who transforms despair tactics into tactics of rebellion and who says they break the rules to convey that they are serious and unafraid.
5. A person who is not a member or affiliate of Extinction Rebellion who has caused damage and inconvenience to people throughout Brisbane.
6. A person who is not a member or affiliate of Extinction Rebellion who is seen as doing things that amount to political belief or activity that should not be supported in some form or fashion by the resources of the Council.
7. A person who is not a member or affiliate of Extinction Rebellion who is seen as doing things that amount to political belief or activity whereby it is seen that the rates that people pay to provide those services should not be utilised for activities which are illegal, for activities which cause inconvenience, and for activities which obviously are contrary to the guidelines.
[286] I find that it is nothing more than what it is described as, which is a guideline for what is suitable. It does not create a policy prohibiting anything or anyone. It could not be breached or contravened. It has not been shown that individuals had ever been prohibited from using these library rooms because of any of the features it describes or that anyone who, for example, advocated for unlawful activity had been prohibited from using big rooms.
[287] The express terms of the resolution focus upon not the use to which the rooms are proposed to be put, but specifically to persons booking on behalf of, or identifying as being, Extinction Rebellion. It is that feature and that feature alone that administrators were to use to decide to disallow or not to permit a booking.
[288] There is no evidence to suggest that the council ever previously asked what rooms will be or have been used for, or whether they involved this so-called propensity and history. There is no evidence of any practice of enforcing the guideline so as to be able to ascertain what the history of treatment of such individuals was. The Respondent does not seek to establish on the evidence that there had ever been such a person and as to how those persons were treated. The Respondent does not advance any case on the evidence as to its differential treatment of persons who used these meeting room.
[289] In my view, using any of the comparators listed above, and I do not suggest they are a complete set, the Applicant, and the class she represents, were not treated no less favourably than the comparators and indeed were treated less favourably than any of those would have been because they would not have been, and were not subjected to the prohibition on library use.
[290] The Applicant has made out her case for the relief I identified earlier as that which, in a modified form, she seeks.

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