O'Flaherty v City of Sydney Council & Anor [2014] HCATrans 232 (17 October 2014)

Last Updated: 28 October 2014

[2014] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S125 of 2014

B e t w e e n -

EAMONN O’FLAHERTY

Applicant

and

CITY OF SYDNEY COUNCIL

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

CRENNAN J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 OCTOBER 2014, AT 10.45 AM

Copyright in the High Court of Australia

MR I.R. PIKE, SC: May it please the Court, I appear with MS N.L. SHARP for the applicant. (instructed by Marque Lawyers)

MR J.K. KIRK, SC: May it please Court, I appear with my learned friend, MR H. EL-HAGE, for the first respondent. (instructed by Council of the City of Sydney)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS K.M. RICHARDSON, for the second respondent. (instructed by the Crown Solicitor (NSW))

CRENNAN J: Yes, Mr Pike.

MR PIKE: May it please the Court, this of course is another case about the implied freedom of communication about government or political matters, which this Court has considered on many occasions since the existence of the principle was confirmed in Lange’s Case in 1997. We observe at the outset that most of the cases, with the exception of Coleman v Power, that have considered the Lange implied freedom have not involved any real modification of the two-stage test posited in Lange. Rather, the cases have considered the application of the two-stage test to the particular laws in question.

Now, we say that this is another important case about freedom of communication that warrants this Court’s consideration. The particular features of this case that command a grant of leave are, we say, that the form of communication consisted of conduct, not just any conduct, but rather conduct that goes to the heart of any democratic society such as Australia.

CRENNAN J: The prohibition was on staying overnight in Martin Place, was it not?

MR PIKE: Yes, it was.

CRENNAN J: It did not go beyond that, did it?

MR PIKE: No, not relevantly, no, your Honour.

GAGELER J: Well, Levy was a conduct case, so there is no novelty in it simply being conduct.

MR PIKE: No, no, but the novelty in this case, or the reason for special leave, I suppose, is the importance of the conduct in the context of a democratic society such as Australia, which is to peacefully protest in a public place by occupying that place overnight in circumstances where it was that very occupation, the staying overnight, that was the communication as found by the trial judge and accepted by the Full Court.

CRENNAN J: Now, I think the trial judge said that prohibition on staying overnight served the legitimate ends of maintaining public health, safety and amenity in a high use public area in preserving the ability of all members of the public to use the area. Now, do you identify some error in her Honour’s approach?

MR PIKE: Yes. We do say that, yes, the error in relation to that conclusion was the failure to properly consider the alternative means that were open to the legislature or in particular in relation to the drafting of the notice to bring about the legitimate ends identified but in a far less drastic way and they were a series of permission, permits and the like, or an exemption in the case of a genuine public assembly or a genuine public protest and they are a well-understood means of, I suppose, legislative exception that exist, for example, in the Summary Offences Act and the like.

GAGELER J: The Full Court considered less restrictive means.

MR PIKE: Well, we say not, when one comes to paragraphs 22 to 26 of the judgment. All that was really done was a paying of lip service, we say, to the legislature rather than actual proper consideration of those alternative means. Now, I can take your Honours directly to that, if I may - paragraphs 22 to 26 of the Full Court judgment, which your Honours will find at application book 51 and, perhaps more importantly, paragraph 24 is the first part when the Full Court considered the alternative means. So:

It may be accepted that a notice issued under s 632(2) of the Local Government Act may well (for example) have permitted camping or staying overnight on specified days. Had the decision been theirs to make, some judges may be more or less inclined to have themselves issued such a notice.

Then if one reads on –

Nor is power conferred upon a judge to invalidate –

There is, when one looks at 24, no consideration there about the alternative means that we identified and when one goes over to paragraph 26, which I think is then the next observation by the Full Court that is relevant, it simply jumps to the conclusion:

was “reasonably appropriate and adapted to serve” . . . Although some other form of notice may well have been issued:

• the prohibition in fact imposed . . .
  

cannot be said to be not a reasonably appropriate course in circumstances where:

• the protestors retained the freedom to otherwise occupy the site or other public sites within the City of Sydney and thereby communicate their views
  

and so on. So there is, with respect, no consideration, we would respectfully say, in the judgment of the Full Court of the alternative means. For example - - -

GAGELER J: What about the statement - those statements in paragraph 26 perhaps have to be read with the preamble that you see on the same page, about line 12:

The task of a Court is not to form a view as to whether one legislative means of achieving a statutory objective is “slightly preferable” –

MR PIKE: No.

GAGELER J: - - - and so it goes on.

MR PIKE: That is purely a statement of the test but what the cases most clearly identify is you then you have to look at the alternative means and say or consider whether in the context of this particular law those alternative means achieve the same legitimate end in a less burdensome way. There is, with respect, nowhere in this judgment of the Full Court, any statement, any real consideration, we say, of the alternative means that we identify.

CRENNAN J: But is not this paragraph 26 an application, in truth, of what Justice McHugh had said Coleman v Power, that:

The constitutional test does not call for nice judgments –

as Justice Gageler put to you. What needs to be done is what has in fact been done by the Full Court here. There is a finding made that the prohibition:

cannot be said to be not a reasonably appropriate course in the circumstances –

That is the application of Justice McHugh’s approach, is it not?

MR PIKE: Well, yes, but Justice McHugh, and I think all the cases since then, do say one does need to consider the alternative means, and as it were, I think your Honour Justice Gageler in Tajjour last week, in effect said that it is a balancing of the magnitude of the burden against the legislative end - - -

GAGELER J: I do not think I used the word “balancing”, but - - -

MR PIKE: No, I am - - -

GAGELER J: I recall what I said.

MR PIKE: I am characterising, but it does involve a need to consider – perhaps if I can put it more neutrally – the extent of the burden – or, sorry, the need to consider the alternative means arises in the context of the extent of the burden and then, secondly, whether the legislative ends can be achieved in a less drastic way. Now, our point is in this regard a very simple one. Nowhere can one find in the judgment of the Full Court any real consideration or any consideration at all of the alternative means.

Can I posit this example? Given that the relevant prohibition was on staying overnight; given that the legislative end that was identified was public health and amenity; given the learned trial judge’s conclusion that the relevant notice did not prohibit, for example, protesters coming and occupying the site for whatever period they needed to provided they moved on when they had finished, if there was a system whereby, for example, there was the ability to issue a permit for staying overnight and the like, we would say that that would have achieved the legislative end, namely public health and amenity in no different way to the form of the law or the notice in its current form, namely there would be no reason why, as at 4 o’clock in the morning when, I think was the example that was given before the learned trial judge, they would wish to clean the area, there is no reason why protestors would not be there on the construction given to the law by the learned trial judge.

I mean one would need to normally balance that against the alternatives that we have identified and there is really no difference and so what one has is, when one accepts that there is a substantial impact on the freedom of political communication, if they have a system of exemptions and the like, the legislative aim is achieved but in no less burdensome a way.

GAGELER J: But it seems like your argument is substantially to the effect that there was a misapplication of established principle.

MR PIKE: I accept that. I do not seek to expand the principle at all and what we say though, your Honour, is that this is, accepting it is a misapplication of the established principle, it comes in the context of a very important legal principle, namely the implied freedom of political communication and it comes, secondly, in the context of a very important piece of conduct, namely the ability to peacefully protest by staying overnight.

GAGELER J: The misapplication is inadequate analysis.

MR PIKE: Well, when one looks at it, no analysis, we would say, of the relevant factual question. There is a statement I accept of legal principle but no, when one looks at the judgment, no consideration of that principle to the facts of this case.

GAGELER J: Is that the high point?

MR PIKE: That is the high point, your Honour. That is the high point. That is the high point, may it please the Court.

CRENNAN J: Thank you. We will not trouble the respondents.

The applicant seeks special leave to appeal from a judgment of the Full Court of the Federal Court of Australia unanimously dismissing the applicant’s appeal from a single judge of that court. Both the Full Court and the primary judge held that a notice prohibiting the applicant and others from staying overnight in Martin Place did not infringe the implied freedom of communication on both government and political matters described by this Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. The issues involve the application of established constitutional principles to the facts. We are not persuaded that error occurred in the courts below in respect of the application of those principles. The applicant does not enjoy sufficient prospects of success to warrant a grant of special leave. Special leave to appeal is refused with costs.

AT 10.56 AM THE MATTER WAS CONCLUDED