Wednesday 30 October 2013

Occupy Melbourne – lessons for decision makers

27 December 2013 update: the VGSO newsletter on this case is now online. Happy holiday reading!

Remember the 'Occupy Melbourne' protests?  The Federal Court recently handed down its decision in the 'Occupy Melbourne Case'Muldoon v Melbourne City Council.  We note that the protestors have just lodged an appeal to the Full Federal Court, so watch this space...

In Muldoon, members of the 'Occupy Melbourne' protest failed in their constitutional challenge to the response by public authorities to their occupation of public gardens.  The decision is a win for equitable use of public space and reasonable regulation.  It also guides administrative decision makers seeking to protect their decisions from constitutional challenges based on free speech.


Muldoon arose from the 2011 occupation of public gardens in the City of Melbourne by a group of protestors called 'Occupy Melbourne' and the response by public authorities to those actions.

Two protestors challenged the exercise of enforcement powers by officers of the Melbourne City Council. The exercise of these enforcement powers prevented Occupy Melbourne from continuing its protest through constant occupation of public space.

The relevant enforcement powers were located in Melbourne City Council Activities Local Law 2009 and Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations 1994

The laws prohibited:
  • a person camping, without a permit, in a public place in a tent or any type of temporary or provisional form of accommodation; and
  • erecting signage in a public place, without a permit.

The Council issued a number of Notices to Comply to Occupy Melbourne for the removal of tents, temporary accommodation and signage from the gardens, and, with police assistance, removed tents and other accoutrements of the occupation.


The Muldoon decision considered the constitutionality of both the enforcement provisions and the specific exercises of powers under those provisions, in light of the constitutional implied freedom of political communication.

The applicants also unsuccessfully argued that the Local Laws and Regulations were incompatible with their rights to freedom of expression or peaceful assembly or freedom of association under the Charter of Human Rights and Responsibilities Act 2006.


In Australia, whether a law infringes the implied constitutional freedom of political communication depends on the answers to two questions.
  • First, whether the law in its terms, operation or effect, burdens the freedom of communication about government or political matters?
  • Secondly, if the law does burden the freedom of communication it will be invalid unless it is reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.


First limb - did the law burden the implied freedom of communication?

The applicants won the first limb, the Court finding that the Local Law and Regulations did burden the implied freedom of political communication.  This was because the tents and banners were symbols of the cause of the Occupy Movement, conveying a message about political matters.

The fact that the Local Laws and Regulations were found to burden the implied freedom is not a surprising result.  When applying the implied freedom courts almost always reach this outcome.  Indeed, this led Heydon J to observe in early 2012 that
[t]his common practice of concession or assumption that the first [implied freedom of communication] limb is met tends to generate an insidious belief that it will always be met.  
Lawmakers and decision-makers should therefore focus on the second stage of the required analysis: what is reasonable regulation?


Second limb - was the law reasonably appropriate and adapted to a legitimate end?

Justice North held that the Local Law and Regulations were valid as they were reasonably appropriate and adapted to the legitimate end of providing for the preservation, care, and maintenance of the gardens and for the equitable use of them.  His Honour found:

First, the extent to which the provisions restricted political communication was limited.  They prohibited camping in tents without a permit and bringing certain items into the gardens without a permit.  But the impugned provisions left open a wide range of other forms of political protest in the gardens.

Secondly, the extent of the restriction on political communication was not absolute.  Protesters could apply to the Council for a permit to camp in tents in the gardens or bring specific items into the gardens.  The ability for the Council to grant or refuse such a permit must be exercised in accordance with the purpose of the power, namely, to preserve the gardens and ensure accessibility to them (including taking account of rights of free expression). 

Thirdly, the applicants failed to demonstrate how the Council could have protected the gardens with any less restriction on the freedom of political communication.  In reaching this conclusion, North J rejected the argument that the Local Law and Regulations could be drafted to exclude political communication, as defining this concept was not practical.

Finally, North J rejected the argument that the Local Law enforcement procedure was immunised from judicial scrutiny due to the haste in which enforcement could occur.  His Honour noted that the courts were 'available every day and for 24 hours in each day, including during holiday periods and on public holidays'.


The intersection between constitutional law and administrative decision-making

The decision of North J in Muldoon demonstrates how the implied constitutional freedom of political communication affects administrative decision-making.  More specifically, the decision is important for at least three reasons.

First, it shows how non-verbal methods of communication can be protected by the implied freedom.

Secondly, it reinforces that even broad powers are limited by:
  • the implied freedom; and
  • the requirement that administrative powers be exercised for a proper purpose. (Note: the Charter imposes similar limits on seemingly broad powers).
Thirdly, it explains how administrative decisions can be protected from constitutional challenges based on free speech. Lawmakers and decision-makers need to ensure:
  • that administrative decision-makers exercise powers in accordance with the proper purposes for which they were conferred; and
  • that evidence exists in each case as to why an administrative power was exercised in a particular manner.
If you are in the Victorian Government and require advice on whether administrative decisions or laws are consistent with the implied freedom of political communication, you can attend our client seminar on Monday, 11 November 2013.  Details of the seminar can be found here

Alternatively you may wish to contact:

Sky Mykyta
Managing Principal Solicitor
t 8684 0220

Nicholas Tiverios
t 8684 0430

1 comment:

  1. You might like to read more about this decision and other developments relating to constitutional law in our recent newsletter