Chesterman, John --- "Free Speech: Mr Coleman is not entitled to be an agitator" [2000] AltLawJl 70; (2000) 25(4) Alternative Law Journal 191

• Free speech: Mr Coleman is not entitled to be an agitator
• JOHN CHESTERMAN reports on voicing political views publicly in The Tropics.

Free speech: Mr Coleman is not entitled to be an agitator

JOHN CHESTERMAN^[*] reports on voicing political views publicly in The Tropics.

Pat Coleman is an agitator, and agitators are not appreciated in North Queensland. Coleman has just been convicted in the Townsville Magistrates’ Court, more or less, of the crime of speaking in public.

On numerous Sundays over the past year Coleman has taken himself to Flinders Mall in central Townsville, armed only with a placard or two and some pamphlets. There he informs passers by, without using offensive language, of his views on politics and social justice. On 6 March 2000 Coleman was convicted of over 20 breaches of Townsville by-laws, which contain the following prohibitions:

No person shall … take part in any public demonstration or any public address … in or upon a pedestrian mall without a permit in writing from the Council …
A person shall not be in or upon a pedestrian mall or whilst in or upon a pedestrian mall shall not act in a manner contrary to the direction or indication given by an official sign in the pedestrian mall in question.
A person when in or upon a pedestrian mall shall obey every direction or instruction given to him by an Authorised Person …^[1]

Coleman substantially agreed with the allegations made against him. He did indeed speak without obtaining a permit, he did ignore the sign on the rather curiously (in the circumstances) titled ‘Speakers’ Stone’ which forbade him addressing the public at that time, and he did ignore directions given verbally to him to cease speaking. From all of this one would have to surmise that the occasions on which Coleman spoke must have been those rare times in public places when loud speaking is justifiably frowned upon, times such as public memorial services, where a booming voice would disturb expressions of public grief. But no. The audience the Townsville City Council was so keen to protect from Coleman were people attending the Sunday open air Cotter’s Market in Flinders Mall: a market where you can sell virtually any tourist item imaginable, but you can’t freely give away your opinion.

Agitators are not a popular breed in North Queensland. Just ask members of the North Queensland Conservation Council, who have confronted quite extravagant opposition in their bid to prevent construction of a resort and marina in areas adjacent to Hinchinbrook Island. In addition to the more typical methods of stifling protest (like heavy- handedness towards protesters at demonstrations when the cameras aren’t rolling), at one stage ‘business interests’ from nearby Cardwell contacted the hierarchy of James Cook University in a bid to prevent one of the University’s academics from using his time and position to oppose the development: this despite the fact that the academic is an expert in conservation matters. This tactic may yet prove to be successful, with the University currently reviewing its ‘academic freedom’ guidelines.

In the famous Percy Neal case (another example of North Queensland justice, where, prior to the High Court’s intervention, the Chairman of the Yarrabah Aboriginal Council was sentenced by the Queensland Court of Criminal Appeal to six months imprisonment for walking to the front door of a white store owner, telling him to leave Yarrabah, and spitting at him), Lionel Murphy quoted this passage of Oscar Wilde’s:

Agitators are a set of interfering, meddling people, who come down to some perfectly contented class of the community and sow the seeds of discontent amongst them. That is the reason why agitators are so absolutely necessary. Without them, in our incomplete state, there would be no advance towards civilisation.

To this Murphy added his now famous phrase: ‘Mr Neal is entitled to be an agitator’.^[2]

According to the Townsville City Council, Pat Coleman is not entitled to be an agitator. His behaviour, which would simply be ignored by most local councils in Australia, is not tolerated here. The Council has spent millions of dollars upgrading local facilities in a bid to encourage tourists. Agitators and other difficult people (like Indigenous park-dwellers) are simply moved along. Theirs is not the North Queensland way.

Moreover this culture is not restricted to the business and local government sectors. Even Coleman’s fellow law students at James Cook University, where he often delivers his message, have (with one noticeable exception) shown scant interest in the case. The fact that they don’t agree with the message leads them by some curious logic to be unwilling to support Coleman’s right to deliver it. The opening session of what surely was a ripe free speech test case was heard before a public gallery consisting, for the most part, of two people.

And, given the High Court’s recent decisions on freedom of communication, it would seem that Coleman’s case indeed was (and still could be, on appeal) a ripe, free speech test case. There is every reason to conclude that the Townsville by-laws would not withstand the High Court’s scrutiny. The unanimous decision of the Court in Lange was that ‘Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates …’ In outlining the limits of this freedom, the Court decided that the freedom

is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication … operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end.^[3]

In a subsequent ‘free speech’ case this test failed to protect the actions of renowned duck protector Laurie Levy, who breached Victorian regulations in retrieving injured ducks from wetlands. But in that case the regulations that were upheld were ostensibly there to protect public safety, and Levy and his fellow protesters did endanger themselves by putting themselves close to duck shooters. The laws in question were held to be ‘reasonably appropriate and adapted to achieving [a] legitimate object or end’, namely public safety.^[4]

It is hard to see the Townsville Council’s by-laws falling into the same category as Victoria’s duck-hunting regulations. In Pat Coleman’s case, no-one was endangered. All Coleman has done is give his views on an array of political matters, including — just to remove any doubt about the applicability of the Lange decision — the need for constitutional reform in Australia. One would have thought that the aim of the by-laws was far from legitimate, and that Coleman had the constitutional freedom to deliver his message in the mall on market days. If a superior court decided that this were not the case, the mind boggles at the powers possessed by local councils. If a local council can prevent people like Coleman airing their political views at an open-air market, it is hard to imagine any place or situation in which a council cannot regulate free speech: why not on the beach, or in universities?

Coleman, who pleaded not guilty and defended himself, argued that the by-laws which he was charged with breaching were invalid on the basis that they contravened the implied constitutional freedom of communication. But he was unable to convince the magistrate, who decided that:

The prohibition not to conduct a speech on Cotter’s Market day is a prohibition placed on the public at large. Even if the Townsville City Council laws were an effective burden, inconsistent with the maintenance and operation of the representative government provided [for] by the Constitution, it cannot, in my view, be concluded that it is not appropriate and adapted to the fulfillment of the legitimate purpose of law-making, namely the control or use of the Flinders Pedestrian Mall in the interest and for the good of the whole community.^[5]

Coleman was fined a total of $2500 and ordered to pay costs of $4616. Should he not be able to come up with this amount in 12 months (and it is likely that he will not), Coleman will be imprisoned for 50 days.^[6] This for speaking in public at an open-air market.

Hopefully, since legal aid will not support him, Coleman will be able to fund the appeal that he is currently considering.

Meanwhile the message from local politicians and business leaders is clear. By all means come to North Queensland: witness the breathtaking scenery, experience the fantastic climate, and spend freely. But don’t expect your political views to be tolerated.

My thanks to George Villaflor, the law student who proved to be the exception to the rule, for his assistance in preparing this article.

References

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^[*] John Chesterman works at the School of Indigenous Australian Studies, James Cook University.

^[1] Chapter XXXIX of the Townsville City Council Local Laws, ss.8(2)(e), 11(4) and 12.

^[2] Neal v Queen [1982] HCA 55; (1982) 149 CLR 305, at 316-7.

^[3] Lange v ABC [1997] HCA 25; (1997) 189 CLR 520, at 559, 561-2.

^[4] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579.

^[5] Unreported decision in Townsville City Council v P. Coleman, 6 March 2000, pp.15-16.

^[6] Unreported decision, above, pp.49, 67-8, 70.