//
[2013] WASC 176
General information, not legal advice.
Supreme Court of WA
2013-05-23
Hall J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : VAN LIESHOUT -v- CITY OF FREMANTLE [No 2] [2013] WASC 176
ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Breach of planning laws - Political signs - Whether laws preventing placement of signs invalid as being inconsistent with the implied right of freedom of political communication in Commonwealth Constitution
Intervener : Solicitor General for Western Australia
1 On 23 July 2012 the appellant, Ms Teresa van Lieshout, was convicted in the Magistrates Court at Fremantle of carrying out a development on land without approval contrary to s 218 of the Planning and Development Act 2005 (WA). She seeks leave to appeal against that conviction.
2 The development in question was alleged to be the placing of advertising signs on the front fence of a property owned by the appellant in Hilton. The placement of such signs is effectively limited by a local planning policy made by the City of Fremantle (the City) under its Local Planning Scheme No 4 (the Scheme). In particular, there are restrictions in the policy as to the height and visual permeability of fences along the roadfacing boundary of properties in Hilton. This prevents signs being attached to such a fence without prior approval.
3 The signs referred to the 'West Australian Party'. If this is a political party it is not a wellknown one. There is no evidence as to whether the party is registered, has any members, what its objectives are or whether it has ever contested an election. Nonetheless, for the purposes of this appeal I will assume that the signs advertising the West Australian Party were intended to have a political purpose.
4 The appellant did not appear in the Magistrates Court and was convicted in her absence. She did, however, submit written submissions to the Magistrates Court. Those submissions raised arguments as to why she should not be convicted. The arguments included that the City was not lawfully constituted, that the laws under which the appellant was prosecuted were invalid as being inconsistent with Commonwealth laws, in particular the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and that those laws were also invalid because they contravened the appellant's right to freedom of political communication.
5 The magistrate did not accept the appellant's arguments. She found the charge proven and imposed a fine of $2,000. The appellant was also ordered to pay the respondent's costs in the Magistrates Court.
6 On this appeal the appellant has sought to repeat the arguments she raised in the Magistrates Court. The argument relating to the right to freedom of political communication has required consideration of a number of High Court authorities on the Commonwealth Constitution. Notices were issued to the Commonwealth and State Attorneys General pursuant to s 78B of the Judiciary Act 1903 (Cth) in relation to this issue. The Attorney General for Western Australia intervened, as he was entitled by law to do, and made submissions on this issue. Final determination of this appeal was deferred pending the delivery by the High Court of its reasons in Attorney General for the State of South Australia v The Corporation of the City of Adelaide [2013] HCA 3 (Corneloup) and Monis v The Queen [2013] HCA 4. Both parties and the intervenor were given an opportunity to make submissions as to the application of those cases to this appeal.
7 For the reasons that follow leave to appeal must be refused in respect of all grounds other than those dealing with the question of the right to freedom of political communication. In respect of those grounds, whilst leave to appeal is granted, they fail on an examination of their merits.
8 The appellant is the owner of a property in Winterfold Road, Hilton. The property is within the City. Across the front boundary of the property is a fence, the upper portion of which consists of brick pillars and timber palings. The timber palings are spaced such that there is a gap between each one.
9 In January 2012 officers from the City attended at the property and observed that signs had been placed across the front fence advertising the 'West Australian Party'. The signs had been placed over the wooden palings on the upper part of the fence thereby covering the majority of the gaps. The officers took photographs of the signs.
10 On 7 February 2012 the City wrote to the appellant to notify her that the signs were contrary to applicable planning policy and had to be removed by 7 March 2012. The appellant responded by email stating that she would not be removing the signs. An officer of the City replied stating that if the signs remained after 7 March 2012 the matter would be referred to the City's solicitors. A letter was also sent by an officer of the City on 2 April 2012 requiring that the signs be removed within 14 days.
11 On 18 April 2012 officers of the City again attended at the property. The signs had not been removed, so further photographs were taken. The matter was then referred to the City's solicitors and the prosecution was commenced.
12 The area in which the property is located is subject to the Scheme. Clause 8.1 of the Scheme provides that all development on land zoned and reserved under the Scheme requires the prior approval of the Council of the City. Development is defined to include the erection, placement and display of any advertisements.
13 Clause 11.4.1 of the Scheme provides that a person must not contravene or fail to comply with the provisions of the Scheme. That clause also provides that a person must not use any land or commence or continue to carry out any development within the Scheme area otherwise than in accordance with any standards laid down by the Council.
14 The Council of the City is empowered to create local planning policies pursuant to cl 7.2.1 and cl 7.2.9 of the Scheme. Such policies may lay down standards in regard to development. Local Planning Policy 3.7 (LPP 3.7) designates the area in which the property is located as the 'Hilton Garden Suburb Precinct'.
1.5.1 Street walls and fencing forward of the building line shall be a maximum height of 1.2 metres and shall be visually permeable above 300 millimetres.
1.5.2 For properties located on South Street between Stock Road and Lee Avenue the front fencing shall be visually permeable above 1.2 metres to a maximum height of 1.8 metres with piers no higher than 2.0 metres.
1.5.2 Solid masonry (brick) rear fencing shall be permitted for those properties backing onto Stock Road to a maximum height of 2.0 metres.
Council may, at its discretion, vary the requirements of clauses 1.5.1 to 1.5.3 where it is satisfied that the proposed street wall and/or fence is consistent with the street walls and/or fencing within the prevailing streetscape and the proposed street wall and/or fence maintains clear surveillance between the street and the dwelling.
16 The preamble to LPP 3.7 states that the Hilton Garden Suburb Precinct is designated as a heritage area in accordance with cl 7.2.1 and cl 7.2.9 of the Scheme. Clause 7.2.2 of the Scheme requires the Council to adopt a local planning policy for each heritage area. The Hilton Garden Suburb Precinct is said to be an area of cultural heritage significance within the City as it is an example of a substantially intact garden suburb dating from the immediate post World War II period and characterised by curvilinear road layout, parks and large irregular shaped lots. There is reference to a stock of relatively intact modest housing, including both timber and brick cottages many with mature trees and gardens. This is said to contribute to the ambience of the area and create a distinct and cohesive streetscape character. The purpose of the policy is said to be to provide design guidelines for development within the Hilton Garden Suburb Precinct heritage area.
17 The phrase 'prevailing streetscape' as used in cl 1.5 of the LPP 3.7 is defined as follows:
Prevailing streetscape means the characteristics (generally limited to the set back and orientation of buildings including garages and carports from the primary and secondary street, front walls and fencing, building height, building/roof form and proportion) of the three properties, where appropriate, adjoining either side of the subject site, fronting the same street and in the same block.
In the case of a corner lot where the dwelling is oriented to the splay, the characteristics of the adjoining three properties, where appropriate, facing both streets shall be considered.
Greater weight may be given to the characteristics of the two immediately adjoining properties on either side of the subject site fronting the same street(s).
For the purpose of this definition, properties separated by a street shall not be considered 'adjoining'.
18 Section 218 of the Planning and Development Act provides as follows:
Planning scheme or condition on development, contravening etc.
A person who -
(a) contravenes the provisions of a planning scheme; or
(b) commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme or improvement scheme otherwise than in accordance with the provisions of the planning scheme; or
(c) commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,
19 Section 223 of the Planning and Development Act provides as follows:
General penalty
Unless otherwise provided, a person who commits an offence under this Act is liable to a fine of $200 000 and, in the case of a continuing offence, a further fine of $25 000 for each day during which the offence continues.
20 As the offence in s 218 is not designated as a crime or misdemeanour, it is a simple offence: s 67(2) Interpretation Act 1984 (WA). As such the procedure for dealing with charges under s 218 is as set out in pt 3 div 5 of the Criminal Procedure Act 2004 (WA) (CPA). Section 55 of the CPA provides that where the court is satisfied that an accused person has been served with a prosecution notice and there has been no plea of guilty the court may deal with the charge in the accused's absence.
21 The charge preferred against the appellant was as follows:
That on 31 January 2012, and continuing from this date, the Accused did contravene clause 8.1 of the City of Fremantle Local Planning Scheme No 4 (the Scheme) by carrying out a development (namely the placing of advertising signs) on the front fence of 16 Winterfold Road, Hilton, WA, 6163 also known as Lot 1538 on Plan 6339 of Certificate of Title Volume 128 Folio 183A (the property) without applying for and obtaining the approval of the City of Fremantle as is required under the Scheme. The contravention of or failing to comply with this Scheme is not permitted under clause 11.4.1 of the Scheme and is an offence under s 218 of the Planning and Development Act 2005.
22 On 23 July 2012 the charge was listed for hearing in the Fremantle Magistrates Court. The appellant did not appear but proof of service of the prosecution notice was provided to the court. In any event, there was no doubt that the appellant had been served with the prosecution notice as she had sent written submissions to the court disputing that she was guilty of the offence.
23 The first written submission by the appellant to the Magistrates Court was filed on 22 June 2012. In that submission the appellant raised some of the arguments referred to earlier in these reasons. She also stated that she was unavailable for any hearing until November 2012. In the second written submission filed on 20 July 2012 the appellant said that she was not available for a hearing on 23 July 2012 because she was 'engaged in unpaid work'. The appellant also described the proceedings as 'a total disgrace' and that she intended to bring an appeal against any decision made and also intended to make a complaint to the Australian Human Rights and Equal Opportunity Commission. She maintained that the respondent was not a legal entity because there was no provision for local government in the Constitution.
24 At the hearing on 23 July 2012 the magistrate noted the appellant's written submissions and that they raised arguments that had been overruled in previous decisions. Her Honour also noted that the appellant had stated she was unavailable to attend the hearing because she was engaged in unpaid work. Her Honour said that that was 'simply not a reasonable excuse for not attending a trial'. The prosecutor then sought to proceed under s 55 of the CPA. The magistrate granted that application.
25 After referring to the relevant provisions of the Scheme and LPP 3.7 the prosecutor stated as follows:
On about 31 January 2012 two officers from the city attended the property on that date and observed that signs had been placed across the front fencing of the building line advertising the Western Australian party. The signs were not approved by the city as required pursuant to 8.1 of the scheme and they rendered the fencing unable to be looked through over the height of 300 millimetres as is required by the policy.
Further, the nature of the signs in advertising the Western Australia party means that they are not consistent with the prevailing streetscape and are therefore not able to be retrospectively approved. The officers of the city took photographs of the signs and I have copies of those photographs here.
By letter dated 7 February 2012 the city wrote to the accused to notify her that the signs were contrary to the policy and the scheme and had to be taken down by 7 March 2012. The accused responded by email on 7 March and indicated she would not remove the signs and then emailed again to say that she had posted the videos on YouTube.
The videos reflect what was said by the accused in her email. I have copies of those documents. The city responded to the accused by email on 7 March noting the accused's comments and saying if the signs remained after 7 March the matter would be referred to the city's solicitors. Two emails were then received from the accused on 30 March which said that the emails would be used as evidence of the city's threatening behaviour. The city's Harry Erasmus, wrote to the accused on 2 April 2012 requesting that the signs be removed within 14 days.
On 18 April 2012 the city's officers again attended the property and noted that the signs had not been taken down and that the signs had been the subject of complaints.
Photographs were taken of the signs seen on that day. Since this prosecution has been lodged, the accused has left successive messages on Kott Gunning's answering machine saying that she will post a video on YouTube about the city and Kott Gunning. A video has been posted on 30 June which appears to show that the signs were taken down by persons unknown and the accused took shots of the bare fence.
The city's officers attended on the property on 21 June when two or three signs only were erected but by 25 June 2012 there were again 10 or 11 signs on the property fence. Subsequently photos were also taken on 12 July and 17 July which show that the signs - a full compliment of signs were still there. The maximum penalty is $200,000 under section 223 of the Planning and Development Act and while the placing of signs without development approval is not the kind of breach anticipated by the maximum penalty, the accused has unequivocally refused to remove the signs, although I'm instructed that this morning the city's officers have attended the property and they have in fact been removed (ts 3 - 4).
26 The prosecutor noted that in addition to the signs not being in compliance with the planning policy there had been a number of complaints to the City. It was said that other members of the community had complained that the signs on the appellant's fence were 'an eyesore'.
27 The magistrate found the charge proven. In imposing penalty her Honour said:
Having regard to the circumstances of the offence I've viewed some of the copies of the digital photographs of the signs erected on the accused (sic) property. It appears to me, albeit, that the maximum penalty under the act is $200,000. That this is at the very low end of the gravity scale. The submission by the prosecution is that the affect (sic) of having the signs there, apart from wilful contravention of the local government's planning scheme, the signs have created an eye-sore for other residents. The fine that I impose is $2000.
In light of the submissions made by the accused, it appears that none of those submissions in themselves provide any arguable ground of defence, so I am allowing the costs of the prosecution in having prepared for the trial today. The costs will be $5,358.80. I'm not going to order a daily penalty, given the circumstances of the offence and the fact of having to take into account that the costs be proportionate to the gravity of the offence and the penalty imposed (ts 5 - 6).
28 The grounds of appeal as contained in the notice of appeal were not in proper form and were difficult to comprehend. They failed to comply with s 8 of the Criminal Appeals Act 2004 (WA) in that they did not clearly identify any alleged errors of fact or law, any alleged excess of jurisdiction, or any alleged miscarriage of justice. See also r 65 Criminal Procedure Rules 2005 (WA). Accordingly, I made an order requiring that the appellant file an amended notice of appeal setting out grounds in proper form.
29 The appellant filed an amended notice of appeal on 17 September 2012, but it was in almost identical terms as the first. The problems with the grounds were raised with the appellant at a directions hearing conducted on 24 September 2012. She refused to accept that there were any problems with her grounds and declined to reformulate them. The only course remaining was to list the matter for a hearing to determine whether leave to appeal should be granted: See Van Lieshout v City of Fremantle [2012] WASC 361. Accordingly, the grounds upon which this appeal falls to be determined are those contained in the amended appeal notice dated 17 September 2012.
30 The grounds as stated in the amended appeal notice are as follows:
Magistrate Langdon erred in law and fact, action in excess of jurisdiction, abuse of process, and miscarriage of justice [Section 8(1) CCA 2004 and Rule 65(2) CPR 2005]:
6A. Abuse of process regarding failure to take into account submissions and arguments raised by appellant.
31 During the course of oral submissions the appellant complained that the magistrate had failed to take into account her written submissions. She sought to add an additional ground, and I permitted her to do so. That ground appears above as ground 6A.
32 The appellant was not assisted by her own advocacy. Her submissions consisted largely of political rhetoric and were short on legal substance. She sought to support her arguments by extensive references to the Bible. She confidently expressed her own views of the law and scorned all contrary views. She was immoderate both in tone and content. She made wild, unsubstantiated and scandalous allegations of dishonesty and corruption. She attempted to bully the court by threatening to publish her allegations on the internet. She was discourteous both to the court and to the representatives of the respondent. None of this has deflected me from the task of determining whether this appeal should succeed.
Grounds 5 and 7 - The implied right to freedom of political communication
33 Whilst it is not readily apparent from the face of these grounds it became clearer at the hearing that the appellant was seeking to argue that the planning laws pursuant to which she was charged and convicted were invalid because they were inconsistent with the implied freedom of communication in regard to political matters contained in the Commonwealth Constitution (the Constitution). In essence, the appellant's argument was that the signs which she had erected on her fence were acts of political communication, that the effect of the local planning laws was to prevent her engaging in such communication, that such laws were inconsistent with the Constitution and were therefore invalid. Expressed in that way, the argument betrays a number of fundamental misunderstandings about the nature and application of the implied right.
34 The appellant has, throughout her argument, assumed that any law which acts as a practical impediment on her ability to engage in political communication is invalid. She has assumed that the right is an absolute one that cannot be limited or curtailed by any valid law. It is necessary, therefore, to set out the true state of the law.
35 The existence of an implied right to political communication was referred to in Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520. The implied freedom of communication on matters of government and political concern was said to arise as a necessary incident of the system of representative and responsible government established by the terms and structure of the Constitution. However, that freedom has never been absolute. Unlike rights found in the Constitution of the United States of America or the Canadian Charter of Rights and Freedoms, the implied freedom of political communication in Australia does not confer personal rights upon individuals. Rather, it operates as a limitation on executive and legislative power.
36 In Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579, 622 McHugh J said:
The freedom protected by the Constitution is not a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution.
37 The test for whether a law is invalid by reason of its effect upon the freedom of political communication was formulated in Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1 [25] (French CJ, Gummow, Hayne, Crennan and Bell JJ) as follows:
Two questions ('the Lange questions') arise ... The first question asks whether in its terms, operation or effect, the law effectively burdens freedom of communication about government or political matters. If this is answered affirmatively, the second question asks whether the law nevertheless is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government.
38 It is evident from this that the fact that a law burdens freedom of political communication is not in itself enough. The first question in many cases can be readily determined in the affirmative. The second question can be more difficult to answer.
39 Limitations on political speech, printed political material and the erection of political signage are not as such incompatible with the maintenance of a constitutional prescribed system of government in Australia. Thus parliament can validly prohibit protesting in hunting grounds in the interests of public safety: Levy v The State of Victoria. It can regulate the distribution of hand bills to avoid waste and litter on city streets: Meyerhoff v Darwin City Council [2005] NTSC 19; (2005) 190 FLR 344. It can proscribe public demonstrations in busy shopping malls which cause disruption for the public and retailers: Sellars v Coleman [2000] QCA 465; [2001] 2 Qld R 565.
40 In Becker v City of Onkaparinga [2010] SASCFC 41 the Full Court of the Supreme Court of South Australia considered the validity of planning laws relating to the display of signs on a residential property. Bleby J, with whom Doyle CJ and Duggan J agreed, concluded that the planning laws in that case did not fail the second question. His Honour found that the legitimate end for which those provisions were reasonably appropriate and adapted was to ensure that the display of all signs and advertisements, whether or not they are about government or political matters, was done in a manner which complies with desired objectives and principles of providing for proper, orderly and efficient planning and development in that State. That process involved consideration of a wide range of matters including visual amenity and public safety.
41 In Becker Bleby J concluded that it was difficult to see how the process of requiring development approval for the displaying of signs could be seen as anything other than reasonably appropriate and adapted to serving a legitimate objective. He also noted that the prohibition on displaying or erecting signs in that case was not absolute. A person was not precluded from seeking a relevant development approval for signs. An analogy was drawn with regulatory schemes that require a person to obtain a permit or licence to undertake a particular activity without which the activity is considered unlawful: See Broadcasting Services Act 1992 (Cth) s 12, Telecommunications Act 1997 (Cth) s 42 and Australian Capital Television v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 143 (Mason CJ).
42 In the two most recent decisions of the High Court in Monis and Corneloup it was contended by the appellants that the second Lange question was imprecise and led to uncertain results. Both decisions were delivered on the same day and in Corneloup the members of the court drew significantly upon the reasoning in Monis in respect of the constitutional issue. For that reason it is appropriate to refer first to the decision in Monis.
43 The appellant in Monis was charged with using a postal service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive contrary to s 471.12 of the Criminal Code 1995 (Cth). The charges related to letters that Mr Monis had sent to family members of Australian military personnel killed in Afghanistan. Mr Monis and his coaccused sought to have the indictment quashed on the ground that s 471.12 was invalid as being contrary to the implied freedom of political communication. That argument failed both at trial and in the New South Wales Court of Criminal Appeal.
44 In the High Court all six judges who heard the appeal held that s 471.12 effectively burdened freedom of communication about government or political matters because it applied generally to offensive uses of postal or similar services; this included communication about government or political matters. That meant the first Lange question was answered in the affirmative. However, the judges were evenly divided as to whether s 471.12 was invalid because they came to different conclusions as to the second question. In consequence, the decision of the Court of Criminal Appeal of New South Wales was confirmed.
45 French CJ and Hayne J followed and applied the formulation of the second question referred to in Wotton. Applying this formulation the second question contained two further questions, namely what is the legitimate end that the law serves and is the law reasonably appropriate and adapted to achieving that legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of government. The question of whether there is a legitimate end requires identification of a statutory purpose. This was said to be determined by conventional processes of statutory interpretation; that is, consideration of the text, subject matter and context of the relevant provisions.
46 French CJ identified the end in Monis as being 'the prevention of uses of postal or similar services which reasonable persons would regard as being, in all the circumstances, offensive' [73]. Hayne J found that the end was 'preventing the use of a postal or similar service in a way that would give offence' [95]. Hayne J said that it was neither appropriate nor possible to identify all of the possible ends that would be legitimate. His Honour listed examples of legitimate ends, but the list did not purport to be exhaustive.
47 French CJ concluded that the breadth of the provision in Monis was such as to prohibit communications on government or political matters in a range of circumstances which could not be defined with any precision [74]. Hayne J noted that the giving of offence is an inevitable consequence of political debate and discourse and it could not be eliminated without radically altering the way in which political debate and discourse is conducted [220].
48 Crennan, Kiefel and Bell JJ approached the second Lange question in a different way. Their Honours accepted the two question formulation of Wotton but said that the second limb was cumbersome and lacked clarity of meaning [345]. Their Honours said that the second limb should be reformulated as follows:
The second limb of Lange looks, in the first place, to whether the law is proportionate to the end it seeks to serve ... where there are other, less drastic, means of achieving a legitimate object, the relationship with a 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 [347].
49 Crennan, Kiefel and Bell JJ characterised the purpose or end of s 471.12 of the Criminal Code (Cth) as being the prevention of intrusion of seriously offensive material into a person's home or workplace [348]. They concluded that there was not a clearly more obvious and compelling means of achieving this purpose and, accordingly, held that the provision was not invalid.
50 It is difficult to extract a ratio decidendi from Monis. Whilst the sixth judge, Heydon J, agreed with the orders proposed by Hayne J, he expressed doubt as to the correctness of the underlying principles extracted from Lange. He suggested that close examination of the correctness of the previous authorities would have to await another case but that on the existing law there was no alternative but to make the orders proposed by Hayne J.
51 The case of Corneloup is factually more similar to the present case. In Corneloup the Adelaide City Council had enacted bylaws that required a person to be licensed in order to 'preach, canvass, harangue, tout for business or conduct any survey or opinion poll' or to 'distribute any handbill, book, notice, or other printed matter' on roads within the city. The bylaw contained a number of exceptions, including conduct during Federal, State or local government elections or referenda.
52 Two brothers, named Corneloup, were prosecuted for engaging in public preaching in the main shopping mall of Adelaide without a licence. They argued that the bylaws were not valid either because they were not made pursuant to the legislative rule making power of the local authority or, alternatively, because they infringed the implied freedom of political communication contained in the Constitution. They were successful in the Full Court of the Supreme Court of South Australia. The Attorney General for South Australia then appealed to the High Court.
53 Much of the judgments in the High Court concerned the first issue; that is, whether the bylaws were validly made pursuant to the relevant rule making power. French CJ, Hayne, Crennan, Kiefel and Bell JJ found that the bylaws were validly made pursuant to the rule making power. Heydon J dissented on this point. It is unnecessary to give further consideration to the judgments in regard to that question as it is not one raised on this appeal.
54 The constitutional question was considered by five judges of the court. French CJ and Hayne J applied their reasoning in this respect from Monis. Crennan and Kiefel JJ delivered a joint judgment and Bell J agreed with them in respect of this issue. Crennan and Kiefel JJ also adopted their reasoning in this respect from Monis.
55 There was no issue that the bylaws effectively burdened freedom to communicate about government or political matters. It was plain that a prohibition on preaching, canvassing, haranguing and the distribution of literature had the potential to prevent communication relevant to politics or government at the Commonwealth level: French CJ [67]; Hayne J [133]; Crennan and Kiefel JJ [209]. However, the critical issue was the second question.
56 All five of the judges who considered the constitutional issue found the bylaws to be valid. The purpose or end of the bylaws was described by Hayne J as the 'prevention of obstruction of roads', by French CJ as 'the regulation of the public use of roads and public places' and by Crennan and Kiefel JJ as 'securing the safe and convenient use of roads'.
57 French CJ held that the bylaws were reasonably appropriate and adapted to serve a legitimate end. He noted that the bylaws were confined in their application to particular places, they were directed to unsolicited communications and the granting or withholding of permission could not be based upon approval or disapproval of the content of such activities. The fact that a restriction did not apply to a particular place referred to as 'Speakers Corner' and that there were exceptions regarding election periods and referenda was also relevant. Hayne J reached a similar conclusion.
58 Crennan and Kiefel JJ (Bell J agreeing) said that the bylaws were not directed to a restriction on political communication as such. They in fact exempted some political communications from their operation. Applying the test that their Honours had referred to in Monis they concluded that:
It could not be seen as equally practicable to allow persons to conduct political speeches and distribute political material without restriction and yet secure the safe and convenient use of roads [218] [219].
59 The appellant in this case is in effect challenging the validity of cl 8.1 and cl 11.4.1(a) and (b) of the Scheme and LPP 3.7 which was made pursuant to the Scheme. Plainly those provisions are not directed to political communication as such. Nor are they directed to signs, whether they have political content or not. What they are concerned with is the maintenance of certain standards within the Hilton Garden Suburb Precinct. The purpose is to preserve the heritage value and visual amenity of the streetscape in the precinct.
60 The reason that the appellant's signs breached LPP 3.7 was not because they contained political statements, assuming for present purposes that they did. Rather, it was because their placement caused the fence along the front boundary of the appellant's property to be noncompliant with the requirement that it be visually permeable. The signs would have resulted in this breach regardless of their content. Thus, any impact on political communication was incidental or indirect. It is possible that a law may be invalid even where its impact on political communication is only indirect, but the fact that it has some other legitimate purpose will be a relevant consideration.
61 The laws in this case by their operation and effect have the capacity to effectively burden freedom of communication about government or political matters at the Commonwealth level. This is because they can act to prevent political signs being placed upon a fence without prior approval in the Hilton Garden Suburb Precinct. Accordingly, the first Lange question must be answered in the affirmative. In those circumstances it is the second question that will be determinative of whether the laws in this case are valid. That is, 'are the planning laws in question reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government?'.
62 As to the purpose or objective of the laws it is clear that they are planning laws directed to orderly development in the City. The setting of standards for the development of land is a common feature of all local government planning schemes. Clause 8.1 and cl 11.4.1(a) and (b) of the Scheme provide for the making of applications for development approval. The power to grant or withhold approval for development could only be exercised having regard to planning and proper development considerations. In this case there can be no suggestion that planning approval was withheld for any improper purpose because no planning approval was ever sought.
63 As regards cl 1.5 of LPP 3.7 it is clear that this is an aspect of a policy whose objective is to preserve the heritage value and streetscape of the Hilton Garden Suburb Precinct. Such a purpose is clearly legitimate. There is a power under cl 1.5 to approve fences that do not meet the policy and there can be no doubt that this discretionary power can only be exercised having regard to considerations relevant to the streetscape. Again, there can be no suggestion that this power has been used for an improper purpose as no application for approval was ever sought by the appellant.
64 Whichever formulation of the second Lange test is adopted, the laws in this case cannot be viewed as invalid. Applying the reasoning of French CJ and Hayne J in Monis, the laws in this case are reasonably appropriate and adapted to achieve a legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of government. They are not vague or imprecise in their application and they allow for the possibility of exceptions where approval, consistent with the objectives of the planning policy, are met. The terms of the provisions do not permit the Council to refuse development merely on the grounds that the signs in question are about government or political matters.
65 In terms of the analysis of Crennan, Kiefel and Bell JJ in Monis, having regard to the ends of the laws in question, there are no less drastic means that are clearly more obvious and compelling as a means of achieving these purposes. The laws in question are clearly proportionate to the objective that they seek to achieve, namely the maintenance of development standards consistent with the heritage values of the Hilton Garden Suburb Precinct.
66 For those reasons the appellant's arguments that the planning laws in question are invalid cannot be accepted. Because grounds 5 and 7 have required detailed consideration I will grant leave in respect of them, but neither ground can succeed.
67 The prosecution notice in this case was in the prescribed form, Form 3 of the Criminal Procedure Regulations 2005 (WA). It named the appellant as the accused, the date of the offence as 31 January 2012 (and referred to it as a continuing offence) and the place as being 16 Winterfold Road, Hilton. In the box required to contain a description of the charge the form states: 'See attachment 1 - charges'.
68 Attachment 1 which forms part of the same prosecution notice states the charge in the following terms:
That on 31 January 2012, and continuing from this date, the accused did contravene clause 8.1 of the City of Fremantle Local Planning Scheme No 4 ('the Scheme') by carrying out a development (namely the placing of advertising signs) on the front fence of 16 Winterfold Road, Hilton, WA, 6163, also known as Lot 1538 on Plan 6339 of Certificate of Title Volume 128 Folio 183A ('the Property'), without applying for and obtaining the approval of the City of Fremantle as required under the Scheme. The contravention of, or failure to comply with, the Scheme is not permitted under cl 11.4.1 of the Scheme, and is an offence under section 218 of the Planning and Development Act 2005. The penalty is contained in section 223 of the Planning and Development Act 2005.
69 A prosecution notice must be in the prescribed form and comply with sch 1 div 2 of the CPA: See s 23. Schedule 1 div 2 cl 5 of the CPA provides as follows:
(1) A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -
(b) identify the written law and the provision of it that creates the offence;
(i) the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and
(d) if the offence is one against a person, identify the person concerned in accordance with clause 6(2); and
(e) if the offence relates to property, comply with clause 6(4) and (5).
(a) it is sufficient to describe an offence in the words of the written law that creates it;
(b) if that written law states that alternative acts, omissions, capacities, or intentions, constitute the offence, the alternatives may be set out;
(c) a charge is not defective only because an element of the offence is not stated; and
(i) any matter, or any particulars as to a person or thing, that need not be proved; or
(ii) the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence.
70 The charge in this case met the requirements of cl 5. It identified with reasonably clarity the date on which the offence was committed, where the offence was committed, the nature of the alleged offence and the provisions under which the offence was created. There is no merit in this ground and leave in respect of it must be refused.
Ground 2 - The Defamation Act 2005 (WA)
71 The appellant argues that because she is a Christian teacher and not a criminal the charge against her is unlawful by reason of s 8 of the Defamation Act 2005 (WA). This argument contains an obvious logical fallacy.
72 Section 8 of the Defamation Act provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter. That section has no relevance whatsoever to the charge against the appellant. It certainly does not have the effect that a charge is unlawful merely because a person disputes it and claims their innocence.
73 The Defamation Act is not concerned with the validity of charges brought in criminal proceedings. It is concerned with civil proceedings for defamation of which this is not one. Even in defamation proceedings, a matter published in the course of proceedings in a court is protected by the defence of absolute privilege: s 27 Defamation Act.
74 This ground is without merit and leave in respect of it must be refused.
Grounds 3 and 4 - Breach of civil and political rights
75 In the written submissions the appellant has extensively referred to the International Convention on Civil and Political Rights. She submits that because the Convention is contained in sch 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) it forms part of the law of Australia and that any State law that is inconsistent with it is invalid by reason of s 109 of the Constitution. She refers to various provisions of the Convention, including the right to selfdetermination, right to a fair trial, right to an appeal and right to freedom of thought, conscience and religion.
76 The Convention has not been incorporated into or become part of Australian domestic law by virtue of its reproduction in the Human Rights and Equal Opportunity Commission Act. See Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 305 306 (Mason CJ and McHugh J), 321 (Brennan J), 348 349 (Dawson J), 359 360 (Toohey J); Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 286 287 (Mason CJ, Deane J); Victoria v The Commonwealth [1996] HCA 56; (1996) 187 CLR 416, 480 482; Sinanovic v The Queen [1998] HCA 40; (1998) 154 ALR 702, 1054 [25]; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 447 448; Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366, 372 273 [21] [25] and Wilson v White [2007] WASCA 87 [23] (Buss JA).
77 Accordingly, any argument that the relevant laws in this case are invalid as being inconsistent with the Convention is misconceived. In any event, the appellant's submissions are merely argumentative; they do not develop any clearly articulated thesis that any particular law is invalid. What they do is make general allegations of unfairness based upon the assumption that the appellant is innocent of any wrongdoing.
78 Insofar as there is a suggestion of unfairness I note that the charge in this case properly informed the appellant of the nature of the allegation against her. That charge was served on the appellant and she had an opportunity to respond to it. She did in fact respond to it by submitting two written submissions to the Magistrates Court. Her reason for failing to appear at the hearing before the magistrate was that she intended to be engaged in unpaid work on that day. Clearly in those circumstances she made a decision not to be in attendance and expected that the court would proceed in her absence. In the circumstances it was both lawful and appropriate for the court to proceed in the appellant's absence pursuant to s 55 of the CPA. She was advised of the outcome and has taken full advantage of her rights to appeal.
79 These grounds are without merit and leave in respect of them must be refused.
Ground 6 - Is the City of Fremantle a legal entity?
80 By this ground the appellant argues that the City, and indeed all local government authorities, are not legal entities. This is said to be because there is no provision for local government in the Constitution. She makes reference to referenda in which proposals to include reference to local government in the Constitution have failed. She submits that the charge against her should not have been accepted for filing pursuant to the power of a registrar of the Magistrates Court to refuse to accept a document for filing which is an abuse of the court's process: s 17 Magistrates Court Act 2004 (WA).
81 It would seem to be this argument that the magistrate was referring to when she said that arguments of the type raised by the appellant had been previously dealt with and dismissed by the Court of Appeal. That is in fact the case. In Glew v The Shire of Greenough [2006] WASCA 260 Wheeler JA (with whom Pullin and Buss JJA agreed) said:
So far as the 1988 referendum is concerned, the proposition appears to be that, because that referendum was defeated, there arises some prohibition upon the State which would preclude it from passing legislation setting up local government authorities. That proposition misunderstands the referendum process. The 1988 referendum contained a proposal to amend the Commonwealth Constitution by inserting a proposed s 119A, which proposed section would have required each State to provide for the establishment and continuance of a system of local government. Because it was defeated, there is no Commonwealth constitutional requirement that a State provide a system of local government. However, the absence of a requirement to establish a system of local government does not imply any absence of power to do so. Each State has always had, pursuant to the power to legislate for the peace, order and good government of that State, a power to set up a system of local government as the State sees fit [24].
82 The Court of Appeal's decision in Glew v The Shire of Greenough was of the subject of an application for special leave to appeal to the High Court. That application was dismissed: Glew v The Shire of Greenough [2007] HCA Trans 520. That decision has been affirmed by the Court of Appeal numerous times since.
83 This ground of appeal is without merit. Leave in respect of it must be refused.
Ground 6A - Failure to take into account the appellant's submissions
84 As with many of the appellant's arguments this one is essentially circular. She believes the arguments raised in her submissions are irrefutable. She believes that if the magistrate had taken them into account the charge would have been dismissed. Since the charge was not dismissed the magistrate must have failed to consider her submissions.
85 There is no doubt at all that the magistrate had seen the written submissions of the appellant. She referred to them at the hearing. She did not accept the arguments raised in them. She was not obliged to give detailed reasons for that rejection.
86 In any event the same arguments have been repeated on this appeal. I have dealt with them. There is no merit in this ground and leave in respect of it must be refused.
87 Like many of the other grounds, this is not a proper ground in the sense that it does not clearly and succinctly identify an alleged error or a basis for concluding that there has been a miscarriage of justice. The argument of the appellant appears to be that because she is the owner of the property concerned she is not liable to planning laws made by the City.
88 There is no basis whatsoever in the Property Law Act 1969 (WA) for the proposition advanced by the appellant. The provisions to which she has referred relate to the power of a person to convey a property to him or herself, implied covenants and the construction and benefits of such covenants. Ownership of land does not provide a person with any immunity from planning laws and regulations. To the contrary, it is precisely because the appellant was the owner of the relevant land that she was liable for the breach of the planning laws in this case. Her ownership was formally proved at the hearing in the Magistrates Court by the production of a copy of the certificate of title.
89 This ground is without merit and leave in respect of it must be refused.
Ground 9 - Was the prosecution properly commenced
90 The ground as framed does not make sense. The reference to Commonwealth law is either an error or is simply wrongheaded. The argument appears to be that the City could not properly commence these proceedings as it was not a lawful entity for the reasons referred to in respect of ground 6. For the reasons I have given in respect of that ground that argument cannot succeed.
91 There is also a reference to whether the City and the lawyers who acted for it could be authorised persons. If this is intended to suggest that the prosecution notice was not properly completed then it is wrong for the following reasons.
92 Schedule 1 cl 3 of the CPA provides that a prosecution notice must identify the prosecutor. If a prosecution has been commenced by a person who is acting in the course of his or her duties as an employee of a public authority it is sufficient for the prosecution notice to name the public authority as a prosecutor provided that the prosecution notice identifies the individual who issues the notice and signs it in accordance with s 23(3) of the Act. The term 'public authority' is defined in s 3 of the CPA to mean, inter alia, a local government or regional local government. A prosecution for an offence may be commenced by an authorised person in relation to an offence. This means, inter alia, a person who is an employee of a public authority: s 20(1)(b)(i) and s 20(3)(a)(i).
93 The prosecution notice in this case states that the prosecutor is the City. It also states that the person who issued the notice was Charles Herman Erasmus, Coordinator Development and Compliance. It is evident that Mr Erasmus was an employee of the City. The prosecution notice appears to bear his signature and that of a Justice of the Peace as a witness. There is a presumption that the person who signed the prosecution notice did so with authority where the court proceeds under s 55 CPA.
94 There is no basis for suggesting that the prosecution notice was not properly completed by an authorised person. There is no basis for suggesting that the City could not be represented by solicitors at the hearing. In any event, a document in proceedings in the Magistrates Court cannot be held to be bad for want of form in an appeal of this type: s 9(3) Criminal Appeals Act.
95 This ground is without merit and leave in respect of it must be refused.
96 This ground asserts that the magistrate made an error by accepting a witness statement that was not properly sworn. In fact, the magistrate received no witness statements at the hearing. To that extent the ground appears to be simply wrong.
97 If what the appellant is seeking to argue is that the magistrate was in error in acting upon a statement of facts read to her by the solicitor who appeared on behalf of the City, then it is based upon a failure to appreciate s 55 of the CPA. As I earlier noted, the hearing proceeded in the absence of the appellant pursuant to s 55 on the magistrate being satisfied that the appellant had been served with the prosecution notice. Where the court proceeds under s 55 it may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
98 In this case the magistrate did take the allegations contained in the charge as being proved, as she was entitled to do, and found the appellant guilty. Where the court convicts an accused person the prosecutor is required to state aloud to the court the material facts of the charge and, in the absence of evidence to the contrary, the court must take as proved any facts so stated: s 55(5) of the CPA. There is no requirement that the stated facts must be given on oath. The magistrate was required to accept those facts and act upon them.
99 No error has been identified, this ground is without merit and leave in respect of it must be refused.
100 When this matter was first listed for directions the appellant voiced an objection to paying the fee to obtain a copy of the transcript. I pointed out to her at that stage that it would be impossible to determine the merits of her appeal if she did not file the necessary documents. Ultimately she agreed to do so and a copy of the transcript was obtained by her and filed.
101 This ground identifies no appealable error, but in any event the complaint raised in it was overtaken by events. Leave in respect of this ground must be refused.
102 For the reasons I have given, leave in respect of grounds 5 and 7 is granted but those grounds cannot succeed. Leave in respect of all other grounds must be refused because they have no reasonable prospects of success: s 9 Criminal Appeals Act.
103 I should note that in considering the grounds I have attempted to reach an understanding of what the appellant is seeking to argue by taking into account both her written and oral submissions. The grounds themselves are obtuse and fail to comply with the requirements for grounds of appeal. As I noted at the commencement of these reasons, I endeavoured to have the appellant address the deficiencies in her grounds by properly identifying errors or miscarriages of justice that she alleged had occurred. She declined to do so and vehemently maintained that her grounds were adequate. Any claim by the appellant that I have misunderstood or misrepresented her grounds needs to be seen in that context.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : VAN LIESHOUT -v- CITY OF FREMANTLE [No 2] [2013] WASC 176 (S)
ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Criminal law - Appeal from Magistrates Court - Appeal dismissed - Costs
The appellant pay the respondent's costs, fixed in the sum of $4,000
Intervener : Solicitor General for Western Australia
1 HALL J: On 10 May 2013 I delivered judgment in this matter and dismissed the appeal. The respondent applied for an order that the appellant pay the respondent's costs to be taxed. As the appellant was not in attendance I reserved the question of costs and ordered that the appellant file any written submissions on that question within three days. A decision on costs would then be made on the papers.
2 The appellant was sent a copy of the judgment and informed of the orders on 10 May 2013. Over the following five hours she sent 20 emails to my Associate. It is unnecessary to detail the contents of the emails other than to say that they contained the appellant's views of the judgment and a tirade of personal abuse expressed in the foulest possible language. The only references to the question of costs were a number of statements, expressed in vehement terms, that the appellant did not intend to pay any costs awarded against her.
3 In deciding an appeal the court has power to make an order as to the costs of the appeal: s 14(1)(h) Criminal Appeals Act 2004 (WA). The discretion to make a costs order is broad but generally such an order will follow the event. In civil appeals an unsuccessful party is obliged to satisfy the court that there are good reasons why it should not pay the other party's costs: Nikolaou v Papsavas Phillips & Co [1989] HCA 11; (1989) 166 CLR 394, 407. That principle ought also apply to criminal appeals under pt 2 of the Criminal Appeals Act.
4 In this case, the appellant has advanced no reasons which could justify the court departing from the general rule. Furthermore, there is no good reason why the respondent, which has been successful on this appeal, should be denied its costs. The respondent is a local authority and it would be unjust for the ratepayers of the City of Fremantle to bear the expenses incurred in responding to this appeal. Ordinarily it is just that the party who turns out to have unjustifiably brought the other party before the court should be required to pay the other party's costs: Smolarek v Roper [2009] WASCA 124 (S).
5 There can be cases where the costs incurred may appear to be disproportionate to the significance of the issues at stake in the appeal. However, this is a case where it is the appellant that has pursued the appeal, argued her position at length and sought to raise many issues (most of which proved to be entirely without merit). In those circumstances, the respondent should be able to recover costs it has reasonably incurred.
6 I have concerns about making an order that the costs be taxed. The reason for that is that given the appellant's attitude as expressed in her emails, a taxation is likely to become a forum for pointless disputation. Accordingly, I intend to make an order for costs in a fixed sum. I have had regard to the applicable scale and to the fact that the respondent's solicitors kept their written and oral submissions to the minimum required to carry out their duty to their client and the court. There will be an order that the appellant pay the respondent's costs fixed in the sum of $4,000.
(1997) 189 CLR 520
(1997) 189 CLR 579
(2012) 246 CLR 1
(1992) 177 CLR 106
(1992) 177 CLR 292
(1995) 183 CLR 273
(1998) 154 ALR 702
(1999) 84 FCR 438
(1989) 166 CLR 394
(2005) 190 FLR 344
(1996) 187 CLR 416