Occupy Sydney protester Eamonn O’Flaherty claimed that he had a constitutionally implied right to occupy a city square with fellow protesters in Sydney as a way of demonstrating his political opinions and his support for the worldwide Occupy movement, and that the City of Sydney had violated his fundamental liberties by not allowing him and fellow protesters to remain in the square, thus unconstitutionally restricting his freedom of communication. In the 15 April Federal Court judgment, Mr O’Flaherty’s request that a prohibition to stay overnight in the place of protest, a busy square in Sydney’s central business district, be struck down as incompatible with the constitutionally implied freedom of communication concerning government and political matters was rejected.
Although Justice Katzmann recognised that the protestor was engaged in communication about government or political matters, and that the prohibition, in its effect although not in its purpose, restricted the scope of the communication, the prohibition was ruled to meet legitimate ends in an appropriate manner.
Justice Katzmann decided that in this case, the city’s prohibition to stay overnight in a busy part of Sydney’s central business district did not violate the implied freedom of communication recognised in Lange v Australian Broadcasting Corporation (1997). According to the Federal Court decision, the prohibition struck an appropriate balance with the legitimate aim of protecting public health, safety and amenity in a public and busy part of the city where people access the railway station and that needs to be cleared for regular cleaning and maintenance.
The full decision is available here.