The submissions of the Attorney-General
321 Each of the written submissions of the Council and of the Attorney-General put forward essentially the same arguments. Those arguments have been set out in the previous section of these reasons for judgment. These arguments were addressed orally, initially by Mr Niall. Dr Donaghue, with one exception, adopted these oral submissions. However, Dr Donaghue elaborated on a number of the arguments in oral submissions. As these elaborations provide some valuable additional insight they will be described in this section of these reasons for judgment.
322 Dr Donaghue first addressed the proper approach to be adopted to the answers to the Lange questions. He submitted that the focus is on the validity of the laws in question not the effect of the laws on the chosen method of expression by the particular litigants. This was the point made by Hayne J in APLA in the passage extracted at [292] of these reasons for judgment. Dr Donaghue formulated the proper question as "does the law, in its terms, operation or effect, effectively burden freedom of communication about government or political matters looking at the general or expected operation of the law rather than its application to these protestors".
323 Dr Donaghue then argued that a law does not burden political communication unless by its operation or practical effect it directly and not remotely restricts or limits the content of those communications as to time, place, manner, or conditions of their occurrence: Coleman per McHugh J at [91]. The applicants accepted that this was not a case of direct restriction but a case of a restriction on the manner of communication. That required the applicants to show that camping was a means of communication which the implied freedom protects. The question then is whether camping expresses something, and if so whether the subject matter of the communication attracts the implied freedom.
324 Camping as a means of communication has been the subject of cases overseas concerning freedom of expression. They raise issues of fact. Thus, in Zhang, it was not difficult to connect the meditation hut erected by the Falun Gong opposite the Chinese Consulate with the point being made by the protesters.
325 It is not in doubt that non verbal conduct may be the subject of the implied freedom: Levy per Brennan CJ at 594 - 595, McHugh J at 626 and Kirby J at 637. However, it is necessary that the conduct amounts to a communication within the protection of the constitutional freedom, namely, the maintenance of the system of representative and responsible government provided for in the Constitution.
326 Dr Donaghue contended that the facts in this case did not show that camping itself communicated the political message. The events occurred at different locations which, although all public places, did not relate to the point being made by the protesters in the way, for instance, that the occupation of Wall Street related to criticisms of the capitalist system. Further, whilst the protesters had some common political messages, the first applicant explained in his affidavit affirmed on 12 December 2011:
Within the Occupy Melbourne movement, individuals express their own distinctive opinions on issues concerning politics and government in Australia. Occupy Melbourne supports this as an essential of its participatory democracy. Thus, in my opinion, while the Occupy Melbourne movement coalesces around the general protests that I have described above, individual protesters who are involved in the Occupy Melbourne movement can and do express their own opinions about particular issues affecting politics and government in Australia. For instance, as part of the broader Occupy Melbourne movement, I have protested about a lack of a treaty between the Government of Australia and the Indigenous peoples of Australia, workers' rights, violence against women and corporate greed. Other protesters have protested about other issues.
327 Dr Donaghue contended that cl 2.11 burdened camping in tents but that camping did not connect with the subject of the implied freedom. The provision is an indirect burden on something that is facilitative of communication. But it is not itself the communication.
328 Dr Donaghue sought to draw some support from US, Canadian, and UK authorities relating to freedom of speech and expression for the answer to the second Lange question.
329 In Clark v Community for Creative Non-Violence, 468 US 288 (1984) the National Park Service issued permits for two tent cities to be erected in Lafayette Park and the Mall in Washington DC to demonstrate against the plight of the homeless. However, utilising a regulation which restricted camping to designated camping areas, the National Park Services denied permission to the protesters to sleep in the tents. The majority assumed that the tent cities were, and sleeping in the tents, was, expressive conduct. The approach in the US was explained at 293 thus:
Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest, and that they leave open ample alternative channels for communication of the information.
330 The majority first addressed whether the demonstrators were, despite the regulation, able to express their view and said at 295:
The regulation otherwise left the demonstration intact, with its symbolic city, signs, and the presence of those who were willing to take their turns in a day-and-night vigil. Respondents do not suggest that there was, or is, any barrier to delivering to the media, or to the public by other means, the intended message concerning the plight of the homeless.
331 The majority considered whether the regulation secured a justified government objective. The regulation focused on the government interest in maintaining the parks in the heart of the capital city in an attractive and intact condition and available to millions who wished to use them. The restriction on camping would limit the nature, extent and duration of the demonstration and thereby provide some protection for the park. Consequently, the regulation was valid.
332 In Canada, the Federal Court of Appeal in Weisfeld v The Queen [1995] 1 FC 68 (Weisfeld) considered the case of a peace camp on Parliament Hill in Ottawa protesting against the testing of cruise missiles. The camp was established by the demonstrators and then removed by government officials on a number of occasions between 1985 and 1988. At different times the camp comprised a number of tents, a more permanent structure, a literature table, and a banner. The appellant contended that the removal of the camp infringed his freedom of expression under s 2(b) of the Canadian Charter. The Court held that the camp was expressive conduct which prima facie attracted the guarantee.
333 Section 1 of the Canadian Charter provided that the freedom was guaranteed "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". One element of the test of reasonable limits was whether the restriction impaired the freedom as little as possible. Dr Donaghue observed that this was a higher threshold than required in Australia and, hence, if a restriction was held justified in Canada, it would be the more so in Australia. The aspect on which Dr Donaghue relied was expressed at 256 thus:
[T]he government restricted only one form of the appellant's expression: the shelter. The government did not interfere with the various other means by which the appellant could communicate his message to the public. The appellant was free to talk with passers-by, to hand out printed literature, and even to display a banner. There were no tanks or guns used here to suppress all dissent. Much milder restrictions were employed. I am of the view that merely denying the appellant the right to erect and to occupy a permanent shelter, but leaving unimpaired his other means of communicating his message, infringed the appellant's freedom of expression as little as was reasonably possible in the circumstances.
334 Dr Donaghue contended that this same reasoning is applicable to the answer to the second Lange question in this case. The restrictions are justified because they left other means of protest open to the protesters.
335 To a similar effect is the judgment of the Court of Appeal in the UK in Mayor of London (on behalf of the Greater London Authority) v Hall [2011] 1 WLR 504 (Hall). A group of protesters established a camp named Democracy Village in Parliament Square Gardens in London opposite the Houses of Parliament. The demonstration was against the war in Afghanistan, the war in Iraq, genocide, war crimes and worldwide environmental issues. The Mayor of London sought orders for possession after the demonstrators had been camping in the gardens for several months. By-laws governing the gardens prohibited camping in a tent. The Master of the Rolls with Arden and Stanley Burnton LJJ agreeing said at [37]:
[T]he defendants' desire to express their views in Parliament Square, the open space opposite the main entrance to the Houses of Parliament, and to do so in the form of the Democracy Village, on the basis of relatively long-term occupation with tents and placards, are all, in my opinion, within the scope of articles 10 and 11 [of the European Convention for the Protection of Human Rights and Fundamental Freedoms which protected freedom of expression and assembly respectively].
336 At [39] the Master of the Rolls said:
The byelaws themselves cannot be said to fall foul of articles 10 and 11: they envisage demonstrations, speeches, camping, placards and the like being permitted subject to the mayor's consent.
337 The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) permitted restrictions on freedoms and rights. At trial it was found that there was a pressing social need not to allow an indefinite camp protest in order to protect health, as there was no running water or toilets; to prevent crime, as there was evidence of criminal damage to flower beds and graffiti; and to protect the rights of access of others. Further, it was found that the camp prevented proper maintenance and control over the world renowned site. Consequently, the removal of the protesters was a proportionate response. The Master of the Rolls continued at [48]:
It is important to bear in mind that this was not a case where there is any suggestion that the defendants should not be allowed to express their opinions or to assemble together. The claim against them only relates to their activities in PSG [Parliament Square Gardens]. It is not even a case where they have been absolutely prohibited from expressing themselves and assembling where, or in the manner, in which they choose. They have been allowed to express their views and assemble together at the location of their choice, PSG, for over two months on an effectively exclusive basis. It is not even as if they will necessarily be excluded from mounting an orthodox demonstration at PSG in the future. Plainly, these points are not necessarily determinative of their case, but, when it comes to balancing their rights against the rights of others, they are obviously significant factors.
338 Dr Donaghue called these comments in aid of the argument that the restriction on camping without a permit in Treasury and Flagstaff Gardens and Gordon Reserve did not amount to an effective restriction on the protesters from communicating their message.
339 Dr Donaghue referred to the UK case which adopted the same argument in relation to the Occupy Movement itself. Protesters established a camp on highway land owned by the City of London in the vicinity of St Paul's Cathedral. In City of London Corporation v Samede [2012] 2 All ER 1039; [2012] EWCA Civ 160 (Samede), the Court of Appeal considered whether arts 10 and 11 of the European Convention prevented the City of London from obtaining possession of the land from the protesters. As in Hall, the Court accepted that the freedom of expression and assembly were engaged. Their Lordships said at [49]:
The essential point in Hall [2011] 1 WLR 504 and in this case is that, while the protesters' Article 10 and 11 rights are undoubtedly engaged, it is very difficult to see how they could ever prevail against the will of the landowner, when they are continuously and exclusively occupying public land, breaching not just the owner's property rights and certain statutory provisions, but significantly interfering with the public and Convention rights of others, and causing other problems (connected with health, nuisance, and the like), particularly in circumstances where the occupation has already continued for months, and is likely to continue indefinitely.
340 In relation to the effect of the restriction on the communication of the protesters' message, their Lordships said at [42]:
In Appleby (2003) 37 EHRR 38, the Strasbourg court accepted that the applicants' Article 10 and 11 rights were engaged, but held that there was no infringement of those rights because '[r]egard must also be had to the property rights of the owner of the [privately owned] shopping centre', and there were other places where the applicants could exercise their Article 10 and 11 rights. While St Paul's churchyard is a particularly attractive location for the Movement, in view of its prominence in the City of London, the Judge's orders clearly do not prevent the Movement protesting anywhere other than the churchyard. And there are many 'rights' with which the Camp interferes adversely.
341 In his supplementary submissions, the Attorney-General contended that the same approach was adopted by the High Court in Adelaide Corporation. The by-law applied to roads which were defined widely. However, in answering the second Lange question Crennan and Kiefel JJ at [212] with Bell J agreeing and French CJ at [68] observed that the by-laws did not restrict political communication in other public places. Similarly, in the present case, the provisions applied to certain parts leaving other public places unaffected.
342 Dr Donaghue submitted, as did Mr Niall, that the Council could be required to give reasons for a decision whether to grant or refuse a permit under the impugned Local Laws or the Regulations. However, he proposed a different analysis. Wotton required that the impugned Local Laws and the Regulations be read so that they fell within constitutional limits. Thus, the decision to grant or refuse a permit is governed by the requirements of the implied freedom. That means that the Council is bound to grant a permit where to refuse a permit would impermissibly burden political communication. There is therefore a right to a permit if refusal would offend the constitutional limit. The right to a permit is a statutory right sufficient to attract the requirements of natural justice. The application cases, such as FAI, concern applications for permission which the applicant had no right to receive. Under the impugned Local Laws and Regulations an applicant for a permit has a right to a permit if refusal would impermissibly burden the implied freedom of political communication.
343 In his supplementary submissions, the Attorney-General relied on what was said in Adelaide Corporation concerning the scope of the discretion to grant permission and its significance for the validity of the provisions. Crennan and Kiefel JJ at [216] with Bell J agreeing contrasted the width of the discretion in the impugned provisions in Adelaide Corporation with the width of the different discretion in the impugned provisions in Wotton. Their Honours observed that the exercise of discretion in Wotton was conditioned on what was reasonably necessary, and hence, imported a requirement of proportionality. Their Honours regarded this as an important factor in favour of validity. However, even though the exercise of discretion in Adelaide Corporation was not conditioned on any express requirement of reasonableness, this did not result in invalidity. Crennan and Kiefel JJ at [213] with Bell J agreeing held that the discretion had to be exercised for the purposes of the provisions, was subject to internal review by the Council, and to judicial review by the Supreme Court.
344 In the present case the power of the Council to grant or withhold permission is limited by the purposes of the provisions, but also by the requirements of s 38(1) of the Charter, and thereby the tests of reasonable necessity in s 15(3) and proportionality in s 7(2) of the Charter.
345 Then, Dr Donaghue addressed the extent to which there is legislative choice in the means used to accommodate the implied freedom. The proper approach was articulated by McHugh J in Coleman, at [100] as follows:
As the reasoning in Lange shows, the reasonably appropriate and adapted test gives legislatures within the federation a margin of choice as to how a legitimate end may be achieved at all events in cases where there is not a total ban on such communications. The constitutional test does not call for nice judgments as to whether one course is slightly preferable to another. But the Constitution's tolerance of the legislative judgment ends once it is apparent that the selected course unreasonably burdens the communication given the availability of other alternatives. The communication will not remain free in the relevant sense if the burden is unreasonably greater than is achievable by other means.
346 The applicants at the hearing contended that the Council should have prescribed specific criteria applicable to granting a permit in respect of political events. Dr Donaghue said that this approach conflicted with the approach of McHugh J in Coleman as it required the Court to make nice judgments between one permit regime and another.
347 An argument such as proposed by the applicants was rejected in a case brought by members of the Occupy Movement in Toronto. In Batty v City of Toronto (2011) 108 OR (3d) 571; (2011) ONSC 6862 (Batty) a tent camp was established in St James Park. The city authorities served notice under by-laws requiring the protesters to stop erecting tents and occupying the park overnight. The protesters challenged the notice on grounds including that it infringed their rights to freedom of conscience, expression, peaceful assembly, and association under the Canadian Charter. D M Brown J accepted that the Charter provisions were engaged and examined whether the by-laws were constitutionally valid. One argument of the protesters was that in order to comply with the Charter, the regulations should have specified the circumstances in which political speech would be exempt from the by-laws. In rejecting this argument his Honour said at [120]:
Moreover, it strikes me as going beyond the bounds of constitutional reasonableness to require, as a matter of general principle, that a municipality should have to turn its mind to and craft detailed exemption policies for every possible contingency. There is a reason why at a certain level in the legislative pecking order the only practical course of action is to delegate authority so that discretion can be applied to the multitude of scenarios which inevitably present themselves when applications for such things as permits are made. The way to police such delegated power is by imposing general requirements on the proper exercise of discretion, not a constitutional obligation to draft policies to cover every possible contingency.
Dr Donaghue contended that the same approach was applicable in the present case.
348 In his supplementary submissions, the Attorney-General drew support on this issue from the judgments in the High Court in both Adelaide Corporation and Monis. He submitted that in both cases the High Court said that when considering whether there were other less drastic means of achieving the legitimate object of the by-laws, the proposed alternative must be equally practicable and available: Adelaide Corporation [207], Monis [347]. In Monis Crennan, Kiefel and Bell JJ said that the conclusion would only be reached where the alternative means were obvious and compelling. In Adelaide Corporation, their Honours at [207] identified the difficulty of prescribing, in advance, whether, when and upon what conditions an activity might be conducted. They concluded that it was difficult to conceive how in that case the use of roads could be regulated so as to meet the objectives of the by-law other than by the permission regime.
349 The carve out suggested by the applicants in their supplementary submissions, namely, that political communication be excluded from the enforcement procedure, did not sufficiently identify the area of exclusion in a way which would not undermine the objectives of the impugned Local Laws and Regulations. As was recognised in Adelaide Corporation, that suggestion underestimates the difficulty inherent in defining what will qualify as political communication.
350 The Attorney-General referred to the following passage in the judgment of Crennan and Kiefel JJ in Adelaide Corporation at [219]:
It must be accepted that there will be occasions when the denial of permission to preach, canvass or distribute materials may prevent a political communication. However, the by-law is not directed to such a communication and has this effect only incidentally and only when it is necessary to achieve the object of securing the safe and convenient use of roads. It does not prevent a person speaking at every place to which the public may resort, but rather only those areas which come within the definition of a road. Given that the discretion must be exercised conformably with the purposes of the by-law, it may be assumed that permission will be denied only where the activities in question cannot be accommodated having regard to the safety and convenience of road users.
The Attorney-General contended that the reasoning can be applied with greater force in favour of validity in the present case. In Adelaide Corporation the by-law restricted speech. In the present case the provisions do not. The supplementary submissions then summarised the proper approach in this case as follows:
[T]he burden that must be justified is, at most, very slight. The protesters can gather every day in the Gardens, hold political signs, and communicate their views in many ways without needing permission.
The law prohibiting camping (and the like) without permission is, if it limits political communication at all, a proportionate limit upon such communication. The enforcement of that law through giving notices to comply in circumstances where no permission has been obtained (or even sought) is also proportionate. The applicants appear to submit that the respondents should have taken steps to enforce the law other than that which had the effect of immediately preventing the breach. These alternative steps cannot be equally practicable in achieving the purpose of the Local Law or Regulations. Indeed, they would be ineffective in achieving that purpose (at least in a timely fashion). It was open to the applicants to seek permission and, if that was refused, to seek judicial review of the decision including on Charter Act grounds. Judicial oversight is readily available, including in the Court on an urgent basis, but the applicants chose not to utilise it.