Is the prohibition reasonably appropriate and adapted to serve the identified legitimate ends (if any) in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
60 Mr O'Flaherty's case is that the ends of the prohibition may be legitimate but the means by which the ends are achieved are not reasonably appropriate and adapted to serve those ends in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. He says that the arrests have had a chilling effect on the protesters' activities, pointing to the dramatic reduction in the number of protestors prepared to stay overnight. He points out that of the 10 complaints made to the City about the protest, none of them related to staying overnight and none of them suggested inconvenience to the public. He also emphasises the absence of complaints to the police. He submits that there are other less drastic means by which the ends might have been achieved. He contends that the prescribed method - a total ban on staying overnight, punishable as a crime - is not reasonably necessary for that purpose. In other words, the means are disproportionate to the ends.
61 Mr O'Flaherty points out that, while not all the activities that carry a penalty under s 632(1) involve the exercise of the freedom of political communication, some do. He argues that an exception or defence could have been built into the prohibition to protect the implied freedom. He notes that s 632(3) of the Act expressly contemplates exceptions. He contrasts the prohibition with s 199 of the Law Enforcement (Powers and Responsibilities) Act 2007 (NSW) which makes it an offence to fail to comply with police directions but limits the exercise of the power by providing in s 200 that police officers are not authorised to give directions in relation to "an apparently genuine demonstration or protest". He also points to the fact that new signs that the City has erected elsewhere in recent years do not ban staying overnight. They only prohibit camping.
62 In my opinion, the prohibition against staying overnight (and, for that matter, camping too) is reasonably appropriate and adapted to serve the legitimate ends of maintaining public health, safety and amenity in a high use public area and preserving the ability of all members of the public to use the area. Furthermore, it does so in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
63 There are several important points to note here.
64 First, neither the prohibition itself nor the law from which it derives its authority is one which in its character or object outlaws political communication. It is facially neutral. It is not directed to political communication or, for that matter, to communication of any kind. It does not target information or ideas. Nor is it aimed at suppressing symbolic expression (cf. Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525 at 554 [105] per Griffiths J). It simply regulates the time, manner and place of the communication as an aspect of regulating another activity. It does not have "as [its] direct operation, the denial of the exercise of the constitutional freedom in a significant respect" (Levy at 614 per Toohey and Gummow JJ). The effect of the law on freedom of political communication is incidental. It is also slight. It does not impede any form of communication for the greater part of the day and night. The prohibition does not ban or prevent communication, save in a limited and indirect respect. Nor does it prevent assembly or occupation of the site for hours on end throughout the day and into the night. What it does prevent is the use of a public place as a residence.
65 Secondly, the law is concerned with conduct, not words. In Levy Brennan CJ explained (at 595) that non-verbal expression may call for greater regulation than verbal communication:
[W]hile the speaking of words is not inherently dangerous or productive of a tangible effect that might warrant prohibition or control in the public interest, non-verbal conduct may, according to its nature and effect, demand legislative or executive prohibition or control even though it conveys a political message. Bonfires may have to be banned to prevent the outbreak of bushfires, and the lighting of a bonfire does not escape such a ban by the hoisting of a political effigy as its centrepiece. A law which prohibits non-verbal conduct for a legitimate purpose other than the suppressing of its political message is unaffected by the implied freedom if the prohibition is appropriate and adapted to the fulfilment of that purpose. Such a law prohibiting or controlling the non-verbal conduct, if it be reasonable in extent, does not offend the constitutional implication.
66 Thirdly, the attachment of a penalty is a significant consideration but it is not fatal: Levy at 614. Although it might be expected that the prohibition would deter people from staying overnight, it is doubtful whether it had any other impact on political communication. Numbers dwindled significantly in the first week of the protest with no police intervention.
67 Fourthly, the prohibition only applies in a discrete area. It does not preclude protest or any other form of political communication outside the area covered by the notices. Neither does it interfere with political communication in the chosen place for the greater part of the day, at night, or into the night. It would not prevent people from coming and going in Martin Place to express their views, even in the middle of the night if they so wished, provided that once they did so they departed.
68 Fifthly, it is beside the point that the new signs do not ban overnight stays. The new signs were not erected in Martin Place. There is no necessary reason why each public place should have the same restrictions on its use.
69 Sixthly, (camping aside) the prohibition applies during a limited period of time - a period during which pedestrian activity in the area is at its lowest and when it might reasonably be expected that the space would rarely be required for public assemblies of any kind, including political protests.
70 Martin Place is a popular precinct attracting a large amount of pedestrian traffic. No doubt that was one of the reasons the protesters decided to gather there. A survey of pedestrian use commissioned by the City shows that, between the hours of 8.00 am and midnight on a weekday in March 2007, more than 60,000 people passed through it and in July 2007, nearly 90,000. The prohibition facilitates and (the evidence indicates) is designed to accommodate cleaning at times when there is little pedestrian traffic and a negligible audience for any protest activities, minimising the impairment of any communication.
71 Seventhly, permitting protesters to stay overnight would detrimentally affect the City's capacity to undertake the functions with which the Parliament entrusted it. At all events, it would interfere with the City's capacity to do so efficiently, particularly if the protesters realised their ambition to occupy Martin Place indefinitely. It would also interfere with the rights of other members of the public to use the area. The fact that there were few complaints about Occupy Sydney from the public and that none of them concerned staying overnight is neither here nor there. Once the protesters were removed on 23 October 2011 very few stayed overnight again. In any case, whether the prohibition is constitutionally valid does not depend on how many complaints are made about the conduct it was designed to deter.
72 Mr O'Flaherty submitted that there was no rational basis for the respondents' argument that staying overnight threatens to block access to Martin Place by members of the public not involved in the protest. He also submitted that there was no rational connection between the prohibition against staying overnight and the promotion of public health, safety and public amenity. I reject both submissions.
73 The more successful the protest, the more people are likely to be attracted to the cause and with this, the greater the interference with the rights of others wishing to use the space. What about those who needed to use it, for example, to gain access to Martin Place railway station from Macquarie Street or to leave the station to get to Macquarie Street?
74 The greater the number of people staying overnight, the greater the interference with the City's capacity to carry out its maintenance responsibilities. On the evidence called by Mr O'Flaherty, the rally on 15 October 2011 attracted around 3,000 people. The police estimate at a given time was 600. Either way, the numbers are significant for the area. In theory, the protestors (or hundreds like them) could have stayed on the site for days, months, even years on end. That would have transformed Martin Place into an obstacle course, if not the private domain of the protesters, and made it extremely difficult (perhaps impossible) for the City to clean and conserve it. This would have had a deleterious effect on the environment and public health. It would also have deprived any other group (including those with a political message) of the use of the space. Mr O'Flaherty pointed to evidence elicited from Mr Harding that the Occupy Sydney protest had never impeded the City in hiring out or giving any other group access to Martin Place. But that evidence must be seen in the light of the enforcement of the prohibition on 23 October 2011.
75 I accept that the test is one of proportionality and that it is therefore relevant to consider whether there are less drastic alternatives but there are some important features of the test that Mr O'Flaherty's submissions gloss over.
76 The first is that the alternative means must be means by which the objectives of the legislation could be achieved (cf. Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 576 at [54] per McLachlin CJ and Monis v The Queen (2013) 87 ALJR 340; [2013] HCA 4 ("Monis") at [280], [282], [347] per Crennan, Kiefel and Bell JJ). For the above reasons, the proposition that an exemption for political protest is a less drastic alternative must be rejected because it would not achieve the legislative objectives.
77 The second important feature is that the alternative means must be equally practicable and available (Attorney-General (SA) v Corporation of the City of Adelaide (2013) 87 ALJR 289 at 335-336; [2013] HCA 3 ("Corneloup") at [206] per Crennan and Kiefel JJ). For the same reasons, providing an exception or defence for political protest would not be an equally practicable means of achieving the legitimate legislative ends. In supplementary submissions provided after the publication of the judgment in Courneloup, Mr O'Flaherty suggested as an alternative means a permit system, but did not indicate how such a system would operate. Presumably Occupy Sydney would seek permission to occupy Martin Place continuously for an unlimited period of time. A permit for such a purpose would be no more practicable than an exception for political protest.
78 Third, the inquiry into whether a law is reasonably appropriate and adapted to serve a legitimate end implies, as Heydon J pointed out in his dissent in Coleman v Power at 102-103 [328], that in a given case there may be a number of ways of achieving that end and that reasonable minds may differ about which is the most appropriate. The question of whether the means used go further than is reasonably necessary to achieve the legitimate end is not intended to signify that the selected means must be unavoidable, indispensable or essential (Mulholland v Australian Electoral Commission (2004) 220 CLR 181 ("Mulholland") at 200 [39]-[40] per Gleeson CJ; Hogan v Hinch at [72] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; The State of Victoria v Sportsbet (2012) 207 FCR 8 ("Sportsbet") at 84 [320] per Kenny and Middleton JJ, cf. Emmett J at [76]). Otherwise the word "reasonably" would be redundant. As Kenny and Middleton JJ pointed out in Sportsbet at 64 [233] (albeit in a different context), the concept of "reasonable necessity" has been used "substantially interchangeably" with the reasonably and appropriately adapted criterion. Crennan, Kiefel and Bell JJ explained in Monis at [347] that:
[w]here there are other, less drastic means of achieving a legitimate object, the relationship with the legislative purpose may not be said to be proportionate, at least where those means are equally practicable and available. Given the proper role of the courts in assessing legislation for validity, such a conclusion would only be reached where the alternative means were obvious and compelling … In such circumstances the means could not be said to be reasonably necessary to achieve the end and are therefore not proportionate.
79 Here, the alternative means are neither obvious nor compelling.
80 The legislature gave some latitude to councils to determine the content of the notices and to decide for themselves whether there should be exceptions, limitations or differential applications (see s 632(3)), no doubt because it could not envisage all the circumstances that might call for the councils' attention. It may well be that some other means could have been deployed to achieve the legislative ends in this case. But the Court must give weight to the legislative judgment (Australian Capital Television Pty Ltd v The Commonwealth of Australia (1992) 177 CLR 106 at 144 per Mason CJ) and may not substitute its own opinion as to the best or most appropriate means of doing so (Rann v Olsen (2000) 76 SASR 450 at 483 per Doyle CJ, cited with approval by the Full Court of the Federal Court in Mulholland v Australian Electoral Commission (2003) 128 FCR 523 at 535 [34] and the High Court in Mulholland at 192 [32] per Gleeson CJ; Levy at 598 per Brennan CJ).
81 Mr O'Flaherty sought to draw parallels between this case and Coleman v Power in which legislation making it an offence to use insulting words in a public place was read down so as to exclude political communication and Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334 ("Adelaide v Corneloup") in which a council by-law was held to be invalid for impermissibly burdening the implied freedom of political communication.
82 But in Coleman v Power the impugned legislation was targeted at communication, including political communication. Further, unlike the prohibition in the present case, the impugned legislation in Coleman v Power was not limited in its operation. It applied with respect to conduct in or within the hearing of all Queensland public places, at all times. But Adelaide v Corneloup was overturned on appeal to the High Court. In any event, it was never a good analogy. As in Coleman v Power the impugned legislation was directed at communication. It prohibited (amongst other things) unauthorised preaching, canvassing, haranguing and distributing publications. As French CJ observed in the appeal (at [67]), these are all activities of a kind that might be undertaken to communicate to members of the public matters which may be directly or indirectly relevant to politics or government at the Commonwealth level.
83 Levy is a better analogy. Like the impugned provision in the present case, Levy was concerned with a provision that had the effect, but not the purpose, of limiting the implied freedom. In that case the plaintiff, Mr Levy, was charged with the offence of entering land proclaimed as a permitted hunting area during prohibited times (duck hunting season) without holding a valid game licence, contrary to reg 5(1) of the Wildlife (Game) (Hunting Season) Regulations 1994 (Vic). Mr Levy claimed that the regulation was invalid and inoperative as beyond the powers of the Victorian Parliament because it infringed the implied freedom of political communication. His purpose was to protest against the Victorian hunting laws. An express objective of the Regulations was to ensure a greater degree of safety for people in hunting areas during the open season for ducks. Like Mr O'Flaherty, Mr Levy argued that by imposing a blanket prohibition to which criminal sanctions were attached, reg 5 was disproportionate to the legitimate purpose of protecting public safety. The inevitable result of the prohibition, he contended, was that it excluded first-hand observers and any accompanying media coverage to communicate the protesters' political message in the most persuasive way. The Court rejected the argument. It was unanimously of the view that the regulation was appropriate and adapted to the fulfilment of the legitimate objective. As Kirby J pointed out at 648, no prohibition was imposed on Mr Levy or his fellow protesters during the time specified in reg 5, so long as it was outside the designated area. The duration of the prohibition was relatively short. The places were confined. Although some of the effectiveness of the protest would be lost because of the prohibition, the inhibition was not such as to render the regulation invalid. The same is true of the prohibition in the present case.
84 In summary, the prohibition is not targeted at political communication. Any restriction on political communication is confined in time, manner and place. The prohibition is reasonably appropriate and adapted to serve the legitimate ends of protecting public health, safety and amenity and preserving the ability of all members of the public to use the area. I am satisfied that it does so in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The prohibition strikes the necessary balance between the competing interests of political communication and the protection of the area for the benefit of all. Cf. Corneloup per Hayne J at [141].