Kerrison v Melbourne City Council  FCAFC 130 (3 October 2014)
The Full Court of the Federal Court has dismissed an appeal against a decision in favour of the City of Melbourne regarding the Occupy Melbourne protests in 2011.
The decision has implications for how the Charter of Human Rights and Responsibilities Act 2006 applies to public authorities as the Court confirmed the primary decision that the Charter’s obligation ‘to act’ compatibly with human rights does not apply to the making of local laws by a council. In relation to the removal of Ms Kerrison’s “tent dress” at the protest, which was not considered in the primary decision, the Court found the council officers did not breach the right to freedom of expression.
In 2011, the Occupy Melbourne protest occupied Melbourne’s Treasury Gardens and Flagstaff Gardens as part of the worldwide Occupy movement where protesters maintained a continuous presence in public space in protest against economic inequality and government structures.
Public use of the gardens is regulated by the Melbourne City Council Activities Local Law 2009 (‘Local Law’) and the Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations 1994 (‘Regulations’), which restrict camping and advertising without a permit or consent and set out enforcement mechanisms.
The Council relied on the Local Law to issue ‘notices to comply’ to protesters and, when the protest moved to Flagstaff Gardens, relied on the Regulations to issue directions and seize items. Victoria Police arrested some protesters.
Mr Muldoon (later joined by Ms Kerrison) brought a representative action in the Federal Court challenging the constitutional validity and human rights compatibility of the Council and Victoria response on behalf of all Occupy Melbourne protesters.
The applicants argued that the Local Law and Regulations infringed the implied freedom of political communication under the Constitution and were incompatible with the human rights to freedom of expression (s 15) and peaceful assembly and association (s 16) in the Charter.
Victoria’s Attorney-General intervened in relation to the constitutional and Charter issues.
Federal Court decision
In Muldoon v Melbourne City Council, North J found the applicants had no individual or representative standing to challenge the action taken against other protesters, however they could challenge the action relating to them.
While North J accepted some of the notices issued to Ms Kerrison were not validly issued, he otherwise rejected the challenge, finding that the police arrests were lawful and that the Local Law and Regulations and their enforcement by the Council did not infringe the implied constitutional freedom and were not incompatible with the Charter rights.
Justices Flick, Jagot and Mortimer dismissed Ms Kerrison’s appeal (the sole appellant after Mr Muldoon withdrew) and confirmed North J’s approach to the constitutional and Charter issues.
Obligation to act compatibly with rights does not apply to making local laws
The Court rejected the Appellant’s claim that the Council acted incompatibly with human rights in making the enforcement provisions in the Local Law.
The Court found that the requirement on public authorities in s 38(1) of the Charter not ‘to act’ in a way that is incompatible with a human right is focused on conduct and does not apply to making by-laws under the Local Government Act 1989. As such, the Local Laws could not be challenged on the ground that their making was incompatible with rights.
The Court reasoned that s 38(2) – which is an exception to s 38(1) where a public authority could not reasonably have acted differently because of a statutory provision – suggests s 38(1) is concerned with conduct under a provision and not the making of a provision itself. The Court also considered it would be inconsistent to extend s 38(1) to making subordinate instruments when the Charter otherwise preserves the ability to make incompatible laws.
Compatibility with human rights and reasonable limits
During the appeal, the Appellant argued that the phrase ‘incompatible with a human right’ in s 38(1) of the Charter should be assessed with reference to the Charter right alone and not with reference to whether it is a reasonable limit in accordance with s 7(2) of the Charter.
The Court did not allow the appellant to rely on this new construction and the appeal proceeded on the basis that the term ‘incompatible’ in s 38(1) is where a human right is limited otherwise than in accordance with s 7(2) (which the parties had previously agreed on).
The Court also refused to resolve which party bears the onus of demonstrating whether limits on human rights are reasonable and demonstrably justified under s 7(2). The Court observed that both these significant questions are currently reserved before the Victorian Court of Appeal in the appeal of Bare v Small.
Removing the tent dress did not breach Charter
The Court found that North J should have dealt with claims that council officers had contravened s 38 of the Charter in removing the tent worn by the Appellant and an Occupy Melbourne banner she had affixed in the gardens.
The Court accepted that the “tent dress” imparted expression (about how the protests were being constrained) protected under s 15(2) of the Charter and that its removal limited the right.
However, while it was critical of the Council and Victoria Police over how the tent dress was removed, the Court found that the officers did not act incompatibly with the right because the action was proportionate. The Court identified the clear relationship between the purpose of the Regulations (to preserve the gardens and their equitable use) and removing the tent. An important factor was that the tent was used as shelter to sleep in as well as a costume. The Court also considered that there were no less restrictive means reasonably available that day to enforce the Regulations. An important factor was that the Appellant had been given ample notice of the risk and an opportunity to comply or dress in more than underwear underneath the tent.
The removal of the Occupy Melbourne banner was found not to limit any rights.
It is disappointing that the decision, in finding that limits on the right to freedom of expression were justified, does not include a more detailed examination of the importance of protest rights and their balancing with competing public interests in a free and democratic society.
Although the Court found that s 38(1) of the Charter does not apply to the making of local laws, it is important not to forget that the requirement to act compatibly with human rights applies to other council acts and decisions. The Court’s reasoning on s 38(1) is confined to the making of ‘statutory provisions’ and not, for example, to the making of policies, guidelines and directions. The obligations to act compatibly with human rights and properly consider human rights continue to apply to such acts and decisions.
The decision does not fully explore the impacts of s 32 on subordinate instruments. For example, while the Charter is clear that primary legislation that cannot be interpreted compatibly with human rights remains valid (s 32(3)(a)), it treats subordinate instruments such as local laws differently. Section 32(3)(b) states: ‘This section does not affect the validity of a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.’ This suggests that a subordinate instrument may be invalid where it is incompatible with human rights and not empowered to be so by primary legislation. It would arguably be rare for a provision to empower a subordinate instrument to be incompatible with human rights, particularly given that s 32 would require that provision to be interpreted compatibly with human rights so far as it is possible to do so.
Ultimately, the decision highlights that many complex questions about the Charter’s operation remain to be resolved by the Courts. Some of those, including the relationship between s 38 and s 7(2) and who bears the onus of proof for s 7(2) matters, may be determined by the Victorian Court of Appeal in the appeal in Bare v Small (decision reserved).
The full decision can be found online here
Gudrun Dewey is Senior Legal Adviser Human Rights at the Victorian Equal Opportunity and Human Rights Commission.