Supreme Court of WA|2008-12-10|Before: Ms J, Beech J

McCLURE -v- THE MAYOR AND COUNCILLORS OF THE CITY OF STIRLING [No 2] [2008] WASC 286 (10 December 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : McCLURE -v- THE MAYOR AND COUNCILLORS OF THE CITY OF STIRLING [No 2] [2008] WASC 286

DEPARTMENT OF PLANNING AND INFRASTRUCTURE (ABN 61 313 082 730)

Constitutional law - Implied freedom of communication on government and political matters - Whether local government laws requiring permit to erect building or display signs arguably infringe implied freedom - Whether local government laws reasonably appropriate and adapted to serve legitimate end in a manner compatible with maintenance of the system of government prescribed by the Australian Constitution - Turns on own facts

Equity - Injunctions - Interlocutory injunctions - General principles - Need to respect statute until it is declared invalid - Turns on own facts

Local government - Exercise by mayor of casting vote in favour of resolution - Whether mayor required to exercise casting vote in favour of status quo - Whether s 5.21(3) of the Local Government Act 1995 (WA) invalid - No serious question to be tried

Sixth to Fifty-sixth Plaintiffs : In person (Mr M McClure, Ms D Durmanich & Ms J Pearce)

Fifth Defendant : State Solicitor for Western Australia

Sixth Defendant : State Solicitor for Western Australia

Seventh Defendant : State Solicitor for Western Australia

1 The City of Stirling is in the process of seeking to amend its town planning scheme.

2 Many of the plaintiffs are members of an association known as Voice of Australia. They oppose the amendment to the town planning scheme proposed by the City of Stirling. Through the association, the plaintiffs have sought to conduct a poll of constituents of the coastal ward of the City of Stirling in relation to the proposed amendment. From March 2007 to June 2007 they took steps to conduct this poll.

3 The plaintiffs claim that officers and rangers of the City of Stirling threatened to seize the tent, signs and banners used by the association of Voice of Australia for the poll and, on one occasion, seized the tent. The plaintiffs seek interlocutory injunctions restraining the rangers and officers of the City of Stirling, and various other defendants, from threatening to seize or seizing the polling tent or signs and banners placed on Crown land for the purpose of a community consultative process on the ground that the association of Voice of Australia does not have a permit to erect the polling tent or display the signs and banners. The plaintiffs also claim an interlocutory injunction restraining the defendants from entering within 12 m of a polling booth while the community consultative process is being conducted.

4 The plaintiffs seek interlocutory injunctions in these terms, pending the hearing and resolution of their claims in these proceedings for final relief in substantially the same terms.

5 On 19 June 2007 the council of the City of Stirling resolved to adopt the proposed amendment to the town planning scheme, with specified modifications. The resolution was passed on the casting vote of the Mayor. Initially, seven councillors voted in favour of the motion and seven against. The Mayor then exercised a casting vote and voted in favour of the motion, with the result that the resolution was carried.

6 Subsequently, the City of Stirling sent the proposed amendment to the fifth defendant, the Western Australian Planning Commission (WAPC), which in turn sent it to the sixth defendant, the Minister for Planning and Infrastructure (the Minister).

7 The plaintiffs seek interlocutory injunctions restraining the WAPC and the Minister from taking any further steps in relation to the amendment.

8 For the reasons that follow, I decline to grant any of the interlocutory relief sought by the plaintiffs.

9 I will begin by outlining the facts which give rise to this application. I will then state the principles relevant to the grant of interlocutory injunctions. Next, I will consider the claim made against the first to fourth defendants. I will determine whether the plaintiffs have established a serious question to be tried in relation to that claim, and then consider issues of the balance of convenience. Finally, I will deal with the claims made against the fifth to seventh defendants, again commencing with a consideration of whether the plaintiffs have established a serious question to be tried.

10 The facts are not, for the purposes of this application, in dispute. It is convenient to divide the facts into two aspects: the process of amendment of the town planning scheme; and the polling by Voice of Australia.

The process of amendment of the town planning scheme

11 In 1985, the City of Stirling (the City) gazetted its town planning scheme: City of Stirling District Planning Scheme No 2 (the Scheme).

12 By s 75 of the Planning and Development Act 2005 (WA), a local government may amend a local planning scheme by an amendment that is prepared by the local government, approved by the Minister and published in the Government Gazette. That process is governed by pt 5 of the Planning and Development Act and by the Town Planning Regulations 1967 (WA). It is not necessary to detail all of the steps that are required to be taken.

13 On 22 November 2005 the council of the City resolved to amend the Scheme in accordance with an amendment known as Amendment 458.

14 The content, substance and effect of the proposed amendment does not bear upon any of the issues which arise in this application. It is not part of the court's function in determining this application to make any judgment about the desirability or appropriateness of the amendment that the City proposes to make to the Scheme.

15 As required by the relevant legislation, the City forwarded the relevant documentation to the WAPC and to the Environmental Protection Authority.

16 By letter dated 28 December 2005, the Environmental Protection Authority advised the City that it considered that the proposed Scheme amendment should not be assessed under pt IV div 3 of the Environmental Protection Act 1986 (WA) and that it was not necessary for it to provide any advice or recommendations.

17 A brief for community consultation in relation to the amendment was adopted by the council by resolution on 21 February 2006 and forwarded to the WAPC.

18 By letter dated 30 May 2006, the WAPC advised the City that it consented to the advertising of the amendment for public inspection, subject to one modification and two conditions. One of those conditions was that the community consultation detailed in the City's brief be undertaken as part of the required formal advertising.

19 On 20 June 2006 the council of the City resolved to modify the amendment in accordance with the WAPC's required modification. On 14 July 2006, the City resubmitted the amendment to the WAPC with the required modifications.

20 On 4 August 2006, the WAPC gave its consent for the amendment to be advertised for a period of 42 days. Consistently with what it had earlier indicated, the WAPC made it a condition of its consent that the community consultation detailed in the City's brief be undertaken as part of the required formal advertising.

21 From 14 October 2006 to 30 November 2006, the amendment was advertised and community consultation was undertaken in accordance with the City's brief.

22 The time prescribed by the regulations for the City to consider submissions was extended by the WAPC, twice, until the end of June 2007.

23 On 19 June 2007, the council of the City resolved to adopt the amendment with modifications. As I have mentioned, the initial vote on the resolution was seven in favour and seven against. The resolution was carried after the Mayor, Mr Terry Tyzack, exercised his casting vote in favour of the motion.

24 On 29 June 2007, the City forwarded the relevant documents to the WAPC. The WAPC examined the proposed amendment, the submissions made as a result of the community consultation, and the comments, recommendations and modifications made by the local government. The WAPC then submitted its recommendation to the Minister. Upon receipt of the recommendation of the WAPC, the Minister may (s 87 Planning and Development Act):

(b) require the City modify the amendment in such manner as the Minister specifies before the amendment is resubmitted for the Minister's approval; or

25 On 28 November 2008, after I reserved my decision on this application, the Minister approved the amendment with stated required modifications, pursuant to s 87(2)(b) of the Planning and Development Act. (I was provided with a copy of the Minister's letter of approval on 3 December 2008.)

26 The effect of that decision is that the next step, in order to complete the amendment process, is that the City make the modifications required. The WAPC then confirms that the required modifications have been made, and submits the amendment (in its final modified form) to the Minister for approval.

27 In those circumstances, the making of a decision by the Minister on 28 November 2008 does not affect the plaintiffs' applications for interlocutory injunctions against the Minister and the WAPC. That is because there remain steps to be taken by each of the WAPC and the Minister before the amendment process is complete.

28 That brings me to the evidence relating to the polling conducted by Voice of Australia.

29 From March 2007 to June 2007, the association known as Voice of Australia conducted what the plaintiffs describe as a referendum in the Coastal Ward of the City in relation to the proposed amendment.

30 On 31 March 2007, various of the plaintiffs set up a polling tent for the purpose of conducting the referendum. The tent was erected on a grassed area of land which is a public reserve close to Scarborough Beach. Photographs of the polling tent are attached to the affidavit of Ms Amy-Rose Goodey sworn 18 June 2007. Officers of the City demanded that the tent and banners be removed. The rangers said that they would return to the reserve and seize the tent if it was not dismantled in half an hour or an hour. However, the officers of the City did not return on that day.

31 On 7 April 2007, members of Voice of Australia again conducted polling at the same location in Scarborough. Officers and rangers of the City demanded that the tent be dismantled, failing which it would be seized. The ranger demanded that the polling tent be removed on the ground that Voice of Australia or the plaintiffs did not have a permit for the tent. A number of police officers attended. The members of Voice of Australia then in attendance removed the tent. This was done at the suggestion of the first plaintiff, Mr McClure, who said that he did not want to risk the permanent loss of the tent.

32 On 14 April 2007, members of Voice of Australia again conducted polling. One of the City's rangers requested that the tent be removed by early afternoon, but did not return that day to where the plaintiffs were conducting their polling.

33 On 21 April 2007, members of Voice of Australia set up a different polling structure on the public reserve near Scarborough Beach. The structure used on 21 April 2007 had no sides and no space for signage. Some of the plaintiffs describe the ways in which this polling structure is less satisfactory than the tent which had previously been used. I will return to that topic.

34 On 28 April 2007, various members of Voice of Australia again conducted polling at the same location. They erected the polling tent which had been used on 31 March, 7 April and 14 April 2007. The fourth defendant, Mr Graham Marriott, a ranger of the City, said that he would remove the tent within half an hour if it was not dismantled. Mr Marriott later stated that the tent would be seized. Members of Voice of Australia and members of the public stood at each corner of the tent. In the process of the rangers of the City attempting to seize the polling tent, the tent partially collapsed. The tent was ultimately seized.

35 On 5 May 2007, members of Voice of Australia attempted to erect the provisional structure, which some of them refer to as tent number two. However, that structure was not erected. The plaintiffs say that this was as a result of interference by council workers. A banner was removed by one of the City's rangers.

36 On 2 June 2007, members of Voice of Australia set up the tent at a location at Karrinyup Shopping Centre. Four officers of the City attended, and the ranger requested that the tent be dismantled or it would be seized. As a consequence, the members of Voice of Australia dismantled the polling tent.

37 Ms Diba Durmanich and Ms Kirsty MacDonald-Orchard say, in their affidavits sworn in late June 2007, that the conduct of the City and its rangers and officers has made it impossible for Voice of Australia to achieve its objective of securing 3,000 votes by August 2007. They say that completion of the polling has been delayed to sometime in September 2007, with any further delays potentially making the whole referendum untenable.

38 There is no direct evidence from any plaintiff that they wish to continue the polling process as at November 2008. I will return to that topic.

39 By letters or emails dated 25 November 2008, 27 November 2008 and 5 December 2008, the plaintiffs applied for leave to re-open their case and adduce further evidence in support of their application for interlocutory injunctions. I have considered the evidence proposed to be adduced, what is said by the plaintiffs as to the reason the evidence was not adduced earlier, and the plaintiffs' submissions as to the significance of the evidence, if admitted, on their application for interlocutory injunctions.

40 Taking these matters into account, and my analysis, reflected in these reasons, as to the merits of the application for interlocutory injunctions, I am not persuaded that I should take the exceptional course of permitting the plaintiffs to re-open their case after the hearing was completed and I had reserved my decision. Apart from anything else, the admission of the proposed further evidence would not affect my decision on the application for interlocutory injunctions. Consequently, the plaintiffs' application for leave to adduce further evidence is refused.

41 I set out below an outline of the principles relevant to the grant or refusal of an interlocutory injunction. The outline draws substantially from some of my previous decisions.

42 In Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148, 153, Mason ACJ summarised the principles governing the grant or refusal of an interlocutory injunction as follows:

In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

43 That summary was adopted by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [13]. These principles have been regularly applied.

44 These principles were explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [65] - [71] (Gleeson CJ and Crennan J agreeing) (ABC v O'Neill). Their Honours stated that the relevant principles are those stated in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618. In Beecham Group the two main inquiries were said to be whether the plaintiff had made out a prima facie case and whether the balance of convenience favours the grant of the injunction. The phrase 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial it will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks: ABC v O'Neill [65], [71].

45 In American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396, 407, Lord Diplock stated that provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, there will be a serious question to be tried. That statement has been interpreted in some cases to mean that so long as the plaintiff's case is not hopeless, there is a serious question to be tried. However, the decision in ABC v O'Neill [71] makes it clear that the apparent statement by Lord Diplock that so long as the plaintiff's claim is not frivolous or vexatious there is a serious question to be tried is not to be followed. The governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought.

46 Thus it can be seen that the various considerations identified by Mason ACJ in Castlemaine Tooheys Ltd are to be considered together.

47 The grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted and the plaintiff later fails at trial, against the injustice which might be suffered by the plaintiff if the injunction is not granted and the plaintiff later succeeds at trial: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670; Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67 [14].

48 As the apparent strength of the plaintiff's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] VicRp 45; [1991] 2 VR 49, 54 - 55; Todd v Novotny [2001] WASC 171.

49 In the context of proceedings which challenge the validity of legislation (including delegated legislation), special considerations arise on an application for an interlocutory injunction. In the absence of compelling grounds, it is the duty of the court to respect and to defer to the enactment of the legislature until that enactment is adjudged to be invalid: Castlemaine Tooheys Ltd (155 - 156); Davids Holdings Pty Ltd v Byrnes (1987) 71 ALR 251; Richardson v The Forestry Commission [1988] HCA 10; (1987) 164 CLR 261, 275 - 276. In Richardson, Mason CJ stated that application of the principle I have just referred to 'foreclosed' the issue of balance of convenience in favour of the party which sought to enforce the legislation under challenge in the proceedings.

50 This principle seems to me to be significant for the disposition of this application. I will return to it later in these reasons.

51 The defendants accept for the purposes of this application that at least some of the plaintiffs have a sufficient interest in the subject matter of these proceedings, over and above that enjoyed by members of the public generally, to satisfy the requirements for standing.

52 I turn to the claims against the first to fourth defendants. I will refer to those defendants collectively as the City of Stirling defendants.

The claims against the City of Stirling defendants

53 In the substantive proceedings, the plaintiffs claim injunctions in terms which correspond with the interlocutory injunctions now before me (see applications 1, 2 and 3 of the notice of originating motion dated 10 April 2008).

54 The substance of what is said to be the legal foundation for the plaintiffs' claim in the substantive proceedings is set out in par 11 of the grounds of the notice of originating motion. Those grounds invoke the constitutional freedom of communication on government and political matters. They also allege that the rangers and officers of the City of Stirling are, by the conduct of which the plaintiffs complain, committing 'offences at common law' and offences against various statutes. None of the plaintiffs' grounds complain that the applicable legislation and local laws do not entitle the City of Stirling to require the plaintiffs to obtain a permit to erect the tent or to display the banners and signs, or do not entitle the City of Stirling to seize the tents, signs or banners in the absence of a permit. However, in oral submissions in reply, the plaintiffs challenged the contentions on behalf of the City of Stirling that the relevant legislation and local laws entitled the City of Stirling to require a permit and to threaten seizure in the absence of a permit.

55 Consideration of the merits of the plaintiffs' constitutional arguments involves giving attention to the statutory and local law regime under which the City of Stirling defendants operate in engaging in the conduct of which the plaintiffs complain. For that reason, it is convenient to outline the relevant statutory and local law provisions, before turning to the plaintiffs' constitutional arguments.

56 Part 3 div IV of the Local Government Act 1995 (WA) creates a regime entitling a local government to impound goods involved in certain contraventions of the Local Government Act or of regulations or local laws made under that Act.

57 Section 3.37(1) provides that regulations may prescribe any contravention of a regulation or local law made under the Act to be a contravention that can lead to impounding. Goods are defined by s 3.38 as follows:

'Goods' means any goods involved in a contravention that can lead to impounding, and includes -

(a) a vehicle;

(ab) an animal; or

(b) a stall or other structure temporarily placed on land,

involved in such a contravention.

58 By s 3.39(1), an employee authorised by a local government for the purpose may remove and impound any goods that are involved in a contravention that can lead to impounding. By s 3.39(2), a person may use reasonable force to exercise the power given by s 3.39(1).

59 A contravention that can lead to impounding is prescribed by reg 29(1) of the Local Government (Functions and General) Regulations 1996 (WA):

A contravention of a regulation or local law made under the [Local Government Act] can lead to the impounding of goods involved in the contravention if -

(a) it occurs in a public place; and

(b) either -

(I) presents a hazard to public safety; or

(II) obstructs the lawful use of any place;

or

(ii) where the regulation or local law prohibits or regulates the placement of the goods, the goods are located in a place contrary to that regulation or local law.

60 The City of Stirling's General Local Laws regulate the placement of goods on public places within the district of the City of Stirling. Clause 305 provides that no person shall erect or permit or authorise the erection of a building on a public reserve without the consent of the council. By cl 306, any person wishing to erect a building on a public reserve shall make an application to the council for its consent to that erection.

61 By cl 307, the consent of the council to the erection of a building in a public reserve shall specify:

(a) the purpose for which such building may be used;

(b) the nature of the building which may be erected;

(e) the position in which such building may be erected.

62 By cl 308, any person who shall erect or use or permit or authorise the erection or use of any building on a public reserve without the written consent of the council, or otherwise than in accordance with the terms of the written consent of the council, shall be guilty of an offence.

63 The City of Stirling defendants submit that the polling tent is a building for the purpose of cl 305 of the General Local Laws. At first blush, the proposition that a tent constitutes a building might seem surprising. The ordinary meaning of the word building, as reflected in dictionary definitions, is a permanent fixed structure: see the New Shorter Oxford Dictionary (4th ed, 1993), and the Australian Concise Oxford Dictionary (4th ed, 2004); although compare the definition in the Macquarie Dictionary (3rd ed, 2001). However, support for the City of Stirling defendants' contention may be derived from the context in which cl 305 is to be found. The requirement in cl 307(c) for the consent of the council to specify the time during which such building may be permitted to remain on the public reserve provides strong support for reading the word 'building' in cl 307 as extending beyond a permanent structure. It is also relevant that the location at which the building is to be erected is a public reserve. That might be thought to make it less likely that 'building' is restricted to a permanent structure.

64 Taking these considerations into account, and what is revealed in the photographs of the tent in this case, I consider there is a strong argument that the tent constitutes a building for the purposes of cl 305.

65 If that conclusion is accepted, the erection of the tent without a permit would constitute a contravention of the General Local Laws that can lead to the impounding of the tent, in that the requirements of reg 29(1)(a) and reg 29(1)(b)(ii) of the Local Government (Functions and General) Regulations would be satisfied.

66 Alternatively, the City of Stirling defendants submit that if the polling tent were found not to be a building for the purposes of cl 305, the erection of the tent would be regulated by cl 247(d) of the General Local Laws. That clause provides that no person shall, without the authority of the council, commit any of the following acts:

(d) deposit any obstruction, box, case, crate, milk bottle or any other thing whether the same nature as the beforementioned or not in a street, way, footpath or other public place.

In context, deposit means to place or to put. If the City of Stirling defendants' primary argument based on cl 305 failed, in my opinion their alternative argument based on cl 247(d) would have some prospects of success.

67 The displaying of signs and banners is regulated by cl 243 of the General Local Laws. That clause provides that:

No person shall, without the consent of the Council, whether by means of writing, drawing, painting, stencilling or by poster or by causing any paper or other substance to adhere or otherwise place any notice, sign, advertisement, design, writing, or picture on any building, structure, lavatory, shelter-shed, fence or seat vested in or under the care, control or management of the Council or on a public reserve.

The placement of banners and signs on a public reserve without the consent of the council of the City of Stirling would contravene cl 243. Such a contravention constitutes a contravention that can lead to the impounding of the goods involved in that the requirements of reg 29(1)(a) and reg 29(1)(b)(ii) of the Local Government (Functions and General) Regulations are satisfied.

68 In summary, the position in relation to signs and banners appears to be beyond argument. The placement of signs and banners on the public reserve without the authority of council contravenes the General Local Laws. An officer of the council is authorised by the Local Government Act and Local Government (Function and General) Regulations to seize signs and banners placed on a public reserve without the authority of the council.

69 There is room for argument in relation to the erection of the tent on the public reserve. However, in my opinion, there is a strong argument that the General Local Laws require a permit for the erection of the tent and that, absent such a permit, officers of the of the City of Stirling are entitled to impound the tent.

70 That brings me to the plaintiffs' constitutional arguments.

71 The plaintiffs' primary contention in the substantive proceedings against the City of Stirling defendants is that the constitutional freedom of communication on government and political matters precludes the City of Stirling from validly:

(a) requiring the plaintiffs, or Voice of Australia, to obtain a permit before erecting the tent and displaying the signs and banners; and

(b) seizing the tent, signs or banners if no permit has been obtained.

72 The nature of the plaintiffs' contention means that these proceedings involve an exercise of this court's federal jurisdiction.

73 A convenient starting point for consideration of the plaintiffs' contention is the unanimous decision of the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. In that case, the court restated the basis, nature and extent of the protection by the Australian Constitution of freedom of communication concerning political and governmental matters.

74 Their Honours' analysis began with s 7 and s 24 of the Australian Constitution. Those sections require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and by the people of the Commonwealth respectively. The court stated that 'freedom of communication on matters of government and politics is an indispensable incident of [the] system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be "directly chosen by the people" of the Commonwealth and the States, respectively' (599). Personal rights are not conferred on individuals. Rather, legislative activity is curtailed, thereby creating an immunity, not a right, on the part of the citizen from being adversely affected by specified laws (560).

75 The freedom of communication which the Australian Constitution protects is not absolute, but is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Australian Constitution. The freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure for submitting a proposed amendment to the Australian Constitution to the informed decision of the people which the Australian Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end (561 - 562).

76 The court in Lange stated that it is not permissible to reason from a general notion of representative government in order to seek to justify implication from the Constitution. Rather, the Constitution gives effect to the institution of 'representative government' only to the extent that the text and structure of the Constitution establish it (567). (I will return to this proposition in the context of the case against the WAPC and the Minister.) Thus the relevant question is not 'what is required by representative and responsible government'. The question is 'what do the terms and structure of the Constitution prohibit, authorise or require?'

77 The court in Lange stated that the test for determining whether a law infringes the implied constitutional freedom involves two questions (567 - 568):

When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively 'the system of government prescribed by the Constitution'). If the first question is answered 'yes' and the second is answered 'no', the law is invalid (footnotes omitted).

That test was also applied in Levy v The State of Victoria (1997) 189 CLR 579, a case heard by the High Court at the same time as Lange.

78 In Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 [96], [196], [211], a majority of the High Court reformulated the second question stated in Lange (567 - 568) so as to replace the phrase 'the fulfilment of' with 'in a manner'.

79 Thus if a law effectively burdens the freedom of communication about government or political matters, the second Lange question is whether that law is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Australian Constitution to the informed decision of the people.

80 The first question invites attention to whether the law, whose validity is challenged, effectively burdens the freedom of communication about government or political matters in its terms, operation or effect. That is a direct reference to government or political matters at the Federal level. The precise extent to which a burden on freedom of communication about government or political matters at a State or local level might involve a burden on freedom of communication about such matters at the Federal level is not entirely clear. What is clear is that some but not all discussion of matters at State or local level might bear on the choice that people have to make in Federal elections, their voting to amend the Constitution, and on their evaluation of the performance of Federal Ministers and their departments: Lange (571 - 572).

81 In some cases since Lange it has been conceded or accepted without substantial discussion that communications about State matters may fall within the implied freedom: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1; Coleman v Power.

82 There remains room for doubt as to precisely when a law that impinges on freedom of communication about State or local matters will be found to engage the implied constitutional freedom of political communication: see, for example, Zines L, The High Court and the Constitution (5th ed, 2008) 545 - 548; Lindell G, The Constitutional and Other Significance of Roberts v Bass - Stephens v West Australian Newspapers Ltd Reinstated? (2003) 14(4) Public Law Review 201; Stone A, 'The Freedom of Political Communication Since Lange' in Stone A and Williams G, The High Court at the Crossroads (2000) 1.

83 I am content to assume, for the purposes of this application, that the plaintiffs have established a serious question to be tried as to whether the first limb of the test is engaged.

84 However, for the reasons which follow, it seems to me that the plaintiffs face very significant difficulties in establishing that the second Lange question is to be answered favourably to them (ie, in the negative).

85 The City of Stirling General Local Laws relevantly regulate certain species of conduct on a public reserve. What is regulated includes the erection of a building on a public reserve and the placing of notices or signs on a public reserve. On the face of it, those laws would appear to serve legitimate ends of local government, including the preservation of the use and enjoyment by the public of public reserves and of the amenity of public reserves.

86 It is to be noticed that the relevant local laws do not involve content based regulation. In other words, the local laws are not aimed at political communication but are principally directed to other purposes and regulate political communication only incidentally. As to this distinction, see, for example, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Laing [1998] FCA 1410; (1998) 89 FCR 17, 34 - 36 (French J) and cases there referred to.

87 The local laws relevant in this case do not create an absolute prohibition on the conduct regulated by the General Local Laws. Rather, the General Local Laws prohibit certain conduct without a permit first having been obtained. Moreover, a person dissatisfied by a decision of the City of Stirling to refuse to grant a permit has a right to apply to the State Administrative Tribunal for a review of that decision: Local Government Act s 9.7. The review of that decision is by way of a hearing de novo: State Administrative Tribunal Act 2004 (WA) s 27(1). These features of the General Local Laws are relevant to (but certainly not decisive of) whether those laws may be said to be reasonably appropriate and adapted to serve the ends already identified, in a manner which is compatible with the maintenance of the constitutionally prescribed system of government.

88 Neither the plaintiffs nor the City of Stirling defendants addressed any submissions to me that were specifically directed to the second Lange question as it applies to the relevant General Local Laws. In that light, and given the nature of this application, the views to which I have come are necessarily not final views. At this stage, I am not persuaded that the plaintiffs have established or even identified an argument of substance in favour of a negative answer to the second Lange question.

89 Whether the apparent strength of a plaintiff's substantive case is sufficient to amount to a serious question to be tried is, as I have said, affected by and related to the consequences likely to flow from the interlocutory relief sought by the plaintiff (ABC v O'Neill [71]).

90 In this case, the interlocutory relief sought by the plaintiffs against the City of Stirling defendants would, in substance, prevent the City of Stirling defendants from enforcing the relevant General Local Laws until the final hearing of the plaintiffs' substantive application. That engages the principle requiring a court, on an application for an interlocutory injunction, to respect and defer to the enactment of legislation until the enactment is adjudged ultra vires, unless there are compelling circumstances justifying a different approach: see [49] of these reasons. There are, in my opinion, no compelling circumstances to justify a departure from this general approach in the present case. For the reasons I have given, the apparent strength of the plaintiffs' claim of invalidity falls well short of being sufficient to justify a departure from the general approach.

91 I am by no means certain that considerations of the balance of convenience are capable of constituting compelling grounds justifying departure from the general duty to defer to legislation until it is declared invalid. Assuming considerations of the balance of convenience are so capable, consideration of the balance of convenience in this case does not justify a departure from the general approach. The reasons for that conclusion are as follows.

92 As to the balance of convenience, the plaintiffs rely on the evidence of several plaintiffs which identifies a number of reasons why it is said that the tent is 'essential' to the proper conduct of the poll. These reasons include protection from sun and wind, the maintenance of a professional appearance, attracting constituents by a high visibility, the need to preserve the security of the process, and the consequential need for additional officers to man the polling stations if the tent is not used. Enforcement by the City of Stirling defendants of the relevant General Local Laws does not preclude the conduct by the plaintiffs, or by Voice of Australia, of a poll. Rather, taking the plaintiffs' case at its highest, such enforcement inhibits the conduct of such a poll.

93 Moreover, the evidence respecting the consequences to the plaintiffs of the seizure and threats of seizure of the tent made by officers of the City of Stirling is all in the form of affidavits sworn no later than June 2007. Ms MacDonald-Orchard and Ms Durmanich each say in their affidavits that, as at June 2007, the conduct of the City of Stirling defendants has made it impossible for Voice of Australia to achieve its objective of securing 3,000 ballots by August 2007 so that completion of polling has been delayed to some time in September 2007, with any further delays potentially making the whole referendum untenable. That does not provide any direct evidence that, as at November 2008, the plaintiffs wish to conduct further polling, notwithstanding that more than a year has now elapsed. Indeed, the reference in the evidence to 'further delays from September 2007 potentially making the whole referendum untenable' suggests that, at the least, there is room for doubt in that regard.

94 For these reasons, the plaintiffs' evidence as to balance of convenience is, in my opinion, less than compelling.

95 For the reasons I have given, I would refuse to grant any interlocutory injunctions against the City of Stirling defendants on the basis of the plaintiffs' constitutional arguments.

96 In par 11 of the grounds of the notice of motion, other assertions are made to the effect that officers of the City are, in engaging in the conduct of which the plaintiffs complain, committing offences 'at common law' or against various statutes.

97 In my opinion, the other aspects of the plaintiffs' substantive claim in par 11 are without merit. Insofar as the plaintiffs refer to offences 'at common law', the plaintiffs' case is misconceived. In Western Australia, offences are created by statute: Criminal Code (WA) s 4. There is no basis for the claim that officers of the City are committing offences against s 97 of the Criminal Code. That section prohibits certain conduct in relation to electors and elections. The community consultative process in which the plaintiffs and Voice of Australia have engaged is not an election for the purposes of s 97. Nor is that process an election for the purposes of s 4.85 of the Local Government Act, upon which the plaintiffs also rely.

98 Finally, insofar as the plaintiffs contend, in the substantive proceedings, that the relevant statutes and General Local Laws do not empower the City to seize the tent, signs and banners on the ground that no permit has been granted, I am satisfied that interlocutory injunctions should not be granted on the basis of such a contention. For the reasons set out earlier, in my opinion, it is clear that the City has such powers in connection with signs and banners, and there is a strong argument that it has such power in respect of the tent. Even if the room for doubt in relation to the City's powers respecting the tent was sufficient to conclude that the plaintiffs had established a serious question to be tried in that respect, consideration of the balance of convenience would lead me to refuse the interlocutory injunctions sought. To grant an interlocutory injunction in respect of the threat to seize the tent would be tantamount to declaring that the General Local Laws did not apply to the tent unless and until the court determined otherwise at the final hearing of the substantive application. In circumstances where there is a strong argument that the General Local Laws do apply to the tent, and given the limited force in the plaintiffs' case on balance of convenience, in my opinion it would not be just to grant an interlocutory injunction.

99 For these reasons, I would refuse to grant any interlocutory injunctions against the City of Stirling defendants.

100 That brings me to the claims for interlocutory injunctions against the WAPC and the Minister.

The claims against the WAPC and the Minister

101 Before dealing with the claims against the Minister and the WAPC I should deal with a preliminary point made by counsel for the fifth to seventh defendants. He submits, correctly in my opinion, that the seventh defendant should be removed as a defendant in the substantive application. The seventh defendant is named as 'Department for Planning and Infrastructure'. There is no legal person so described. In addition, under the relevant legislation and regulations, the 'Department for Planning and Infrastructure' does not perform any function. Consequently, the seventh defendant should be removed as a defendant.

102 The plaintiffs' application for interlocutory injunctions against the WAPC and the Minister are made by what is termed application 8 in the plaintiffs' notice of originating motion dated 10 April 2008. Interlocutory injunctions are sought by the plaintiffs to prevent the WAPC and the Minister from taking any further action in respect of the amendment until the plaintiffs' substantive applications are determined. That invites attention to the plaintiffs' substantive applications.

103 The basis for the plaintiffs' substantive applications are contained in applications 5, 6 and 7 of the notice of originating motion. Applications 5 and 6 can be considered together. They complain of the placing of the amendment to the Scheme on the agenda of the council meeting of 19 June 2007, and the passing of the resolution in respect of the amendment on that day in the face of assertions and objections by two councillors that the community consultative process (CCP) regarding the amendment was flawed. In McClure v The Mayor and Councillors of the City of Stirling [2008] WASC 164 I stated that:

(a) the substance of applications 5 and 6 is that the proposed amendment to the scheme should not have been placed on the agenda or passed at the council meeting on 19 June 2007 in the face of assertions of fact, submissions or objections by councillors to the effect that the CCP was flawed;

(b) the question to which applications 5 and 6 give rise is whether the existence of the assertions, submissions or objections to that effect meant that the amendment should not have been placed on the agenda or passed; and

104 It follows that a report by Mr Andrew Guilfoyle et al on why the CCP engaged in by the City was 'flawed' is not relevant.

105 Mr Malcolm McClure, the first plaintiff, who made oral submissions on behalf of the plaintiffs in support of the application for interlocutory injunctions, did not challenge that reading of applications 5 and 6.

106 It is not in dispute that the councillors of the City had before them, prior to and at the meeting of 19 June 2007, assertions, submissions or objections, including by Councillors Kathryn Thomas and Bill Stewart, to the effect that the CCP for the amendment was flawed. The question is whether the existence of such assertions or objections affects the validity of the resolution passed on 19 June 2007.

107 In my opinion, for the reasons which follow, the plaintiffs have not established a serious question to be tried in respect of applications 5 and 6.

108 In considering the apparent merits of applications 5 and 6, it is to be borne in mind that the court does not have a free-ranging power or function of assessing the merits of the conduct of the business of a council of a local government, whether by the council as a whole or by some or one councillors. The court's function is to assess the legality and validity of the relevant conduct of the council.

109 The grounds set out in the notice of originating motion in support of applications 5 and 6 rely on s 1.3 of the Local Government Act. That section provides:

1.3. Content and intent

(1) This Act provides for a system of local government by -

(a) providing for the constitution of elected local governments in the State;

(b) describing the functions of local governments;

(d) providing a framework for the administration and financial management of local governments and for the scrutiny of their affairs.

(b) greater community participation in the decisions and affairs of local governments;

(3) In carrying out its functions a local government is to use its best endeavours to meet the needs of current and future generations through an integration of environmental protection, social advancement and economic prosperity.

110 The plaintiffs say that because putting the amendment on the agenda and passing the resolution in the face of the assertions already referred to was not conducive to 'better decision-making by local government', 'greater community participation in the decisions and affairs of local governments' and 'greater accountability of local governments to their communities', the councillors who voted in favour of the resolution have committed an 'offence at common law' and have failed to perform the duties of their office according to the Local Government Act.

111 As I have already said, the notion of an offence at common law has no place in the law of Western Australia.

112 Section 1.3 of the Local Government Act is in the nature of an objects clause of the Act. It does not prohibit any specific conduct or prescribe any particular conduct in a given set of circumstances. Because of that, the section is not of a character that disobedience to the statute could give rise to the commission of an offence.

113 By s 177 of the Criminal Code, any person who does an act which he or she is, by the provisions of any Western Australian statute, forbidden to do, or omits to do an act which he or she is, by the provisions of any such statute, required to do, is guilty of a crime (with immaterial qualifications and exceptions). That section has no application to a statute of the character of s 1.3 of the Local Government Act as outlined above: Commercial and General Acceptance Ltd v Nixon [1981] HCA 70; (1981) 152 CLR 491, 498 - 499, 505 - 506 and 526.

114 A conclusion that a particular decision by a council did not result in one or more of the outcomes set out in pars (a) to (d) of s 1.3(2) of the Local Government Act would not provide any basis in law to impugn the validity of the decision.

116 Application 7 complains of the exercise by the mayor of his casting vote in favour of the resolution. The plaintiffs contend that the mayor was not entitled to exercise a casting vote because s 5.21(3) of the Local Government Act is invalid. Alternatively, the plaintiffs say that the mayor was required to exercise his casting vote in favour of the status quo.

117 In my opinion, both of these contentions by the plaintiffs are without merit.

118 The plaintiffs have not demonstrated any arguable basis for the invalidity of s 5.21(3) of the Local Government Act. Section 5.21 of the Local Government Act is in the following terms:

5.21. Voting

(1) Each council member and each member of a committee who is present at a meeting of the council or committee is entitled to one vote.

(2) Subject to section 5.67, each council member and each member of a committee to which a local government power or duty has been delegated who is present at a meeting of the council or committee is to vote.

(3) If the votes of members present at a council or a committee meeting are equally divided, the person presiding is to cast a second vote.

(4) If a member of a council or a committee specifically requests that there be recorded -

(a) his or her vote; or

(b) the vote of all members present,

on a matter voted on at a meeting of the council or the committee, the person presiding is to cause the vote or votes, as the case may be, to be recorded in the minutes.

(5) A person who fails to comply with subsection (2) or (3) commits an offence.

119 In support of their contention of invalidity, the plaintiffs refer to s 23 and s 40 of the Australian Constitution. Section 23 provides that questions arising in the Senate shall be determined by a majority of votes and each senator shall have one vote; the President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative. A different provision is made in respect of the House of Representatives by s 40. That section provides that questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.

120 Those differing provisions no doubt reflect fundamental differences between the constitution of the two Houses. Because the Senate is the States' House, a premium is placed on ensuring the equality of representation of the States. In any case, the provisions of s 23 and s 40 of the Australian Constitution say nothing on the question of what provision may be made by a State parliament in relation to the casting of votes, including a casting vote, by councillors of a local government.

121 The plaintiffs also make some reference to the standing orders for the Federal and State houses of parliament. Again, those standing orders say nothing as to how votes are to be cast at a meeting of councillors of a local government.

122 The plaintiffs also seek to invoke the concept of representative democracy as supporting a conclusion that a provision permitting a second casting vote is unconstitutional. Such an argument has no merit for a number of reasons. I do not propose to detail all of those reasons. Rather, I will mention one reason which is, in itself, fatal to the plaintiffs' contention.

123 The foundation of the plaintiffs' argument is the notion of representative democracy as an implication from the Australian Constitution. However, the Australian Constitution gives effect to the institution of representative government only to the extent that the text and structure of the Constitution establish that: McGinty v The State of Western Australia [1996] HCA 48; (1996) 186 CLR 140, 168, 182 - 183, 231 and 284 - 285; Lange (566 - 567). There is nothing in the Australian Constitution to support an implication that the notion of representative democracy established by the Constitution requires a general rule, at all levels of government in Australia, that casting votes not be permitted, or that casting votes only be exercised in a way that preserves the status quo.

124 The plaintiffs' alternative submission, that the mayor was required to exercise his casting vote in favour of maintaining the status quo was, as I understood it, said to be based upon a convention alleged by the plaintiffs to exist. The plaintiffs say there is an unwritten convention in local government that a mayor with a casting vote will exercise the vote to preserve the status quo. However, any alleged convention cannot trump the provisions of s 5.21 of the Local Government Act. In my opinion, whether the mayor is required to exercise his casting vote in any particular way involves a question of construction of that section.

125 It is to be noticed that the exercise by the mayor of the casting vote under s 5.21(3) is a matter of duty not of discretion. Moreover, failure by the person presiding (the mayor) to cast a second vote constitutes an offence: s 5.21(5).

126 The language of s 5.21(3) is, to my mind, quite inconsistent with a construction of the legislation as requiring the mayor to cast a vote in favour of the preservation of the status quo. If that had been the intention of the legislature, it would have no doubt achieved that intention more simply by providing that in the event of equality of votes the motion is defeated.

127 For these reasons, in my opinion, the plaintiffs have not established a serious question to be tried in respect of application 7.

128 I have concluded that the plaintiffs have failed to establish a serious question to be tried on any of applications 5, 6 and 7. That being so, I would, consequently, refuse to grant the interlocutory injunction sought by the plaintiffs by application 8.

129 If, contrary to my view, any of the plaintiffs' arguments that the Australian Constitution somehow invalidates s 5.21 of the Local Government Act had some apparent merit, the principle generally requiring the court to respect the enactment until it is declared invalid would support the refusal of the injunction.

130 Further, to the extent that it were relevant, I consider that the balance of convenience would not favour the grant of an interlocutory injunction. The taking of further steps by the WAPC and the Minister to finalise the amendment does not in itself preclude the plaintiffs from seeking prerogative relief, for example, in respect of the Minister's approval of the amendment before it was gazetted.

131 For these reasons, I would refuse the application for interlocutory injunctions against the Minister and the WAPC.

132 I would summarise my reasons for refusing to grant any interlocutory injunctions as follows:

(a) the plaintiffs' constitutional arguments, based on the implied freedom of communication on government and political matters, face considerable difficulties;

(b) an interlocutory injunction should not be granted on the basis of the constitutional arguments because the general approach - that the enactment of the legislation should be respected until the legislation is declared invalid - applies, and the balance of convenience does not favour the grant of the interlocutory injunctions sought; and

(c) the plaintiffs' other arguments are without merit, and the balance of convenience does not favour the grant of the interlocutory injunctions sought.

(2) The plaintiffs' case against the WAPC and the Minister is without merit and does not give rise to any serious question to be tried.

Development Act 2005

Planning Regulations 1967

Government (Functions and General) Regulations 1996

Administrative Tribunal Act 2004

McCLURE -v- THE MAYOR AND COUNCILLORS OF THE CITY OF STIRLING [No 2] [2008] WASC 286 (10 December 2008)

At a glance

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Judgment (183 paragraphs)

McCLURE -v- THE MAYOR AND COUNCILLORS OF THE CITY OF STIRLING [No 2] [2008] WASC 286 (10 December 2008)

Legislation Cited (6)

Cases Cited (13)