22 April 2013

Occupy, but not overnight

In O'Flaherty v City of Sydney Council [2013] FCA 344 Katzmann J in the Federal Court of Australia has held that the arrest of protesters at the Occupy Sydney demonstration in October 2011 did not infringe the implied freedom of political communication.

A protester charged, under s 632 of the Local Government Act 1993 (NSW), with staying overnight in a public place argued unsuccessfully that public notices in Martin Place were unconstitutional because they prevented him from effectively conveying his political message.

Section 632(1) of the Act provides that
A person who, in a public place within the area of a council, fails to comply with the terms of a notice erected by the council is guilty of an offence.
Section 632(2) provides that "The terms of any such notice may relate to any one or more of the following" -
(a) the payment of a fee for entry to or the use of the place,
(b) the taking of a vehicle into the place,
(b1) the driving, parking or use of a vehicle in the place,
(c) the taking of any animal or thing into the place,
(d) the use of any animal or thing in the place,
(e) the doing of any thing in the place,
(f) the use of the place or any part of the place
The notice regarding Martin Place prohibited camping or staying overnight at that location, "any other act which may cause damage to the area, Any other act which may cause inconvenience or injury to others" (eg skateboarding) and littering. O'Flaherty disregarded the notice during 'occupation' of Martin Place, ie as part of a political protest.

The Court considered whether prohibition against staying overnight infringes the implied freedom of communication or association. In particular did the NSW statute in its terms, operation or effect effectively burden that freedom? Was the law reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
O’Flaherty testified that his purpose was to play his part in a protest against a world “corrupted and despoiled by systematic greed and institutional short-sightedness” in which too much power is assigned to “wealth and the wealthy few”. He said he believed that by staying at the occupation site continuously, the protesters were powerfully demonstrating their commitment to the Occupy Sydney cause, communicating in a way that appeared more “intense” and “long-lasting” than a rally or protest march. He believed that the act of occupation demonstrated the protesters’ solidarity with other Occupy movements and that more people could be involved in a continuous protest. Drawing on the media interest in the Occupy movements in the United States, he considered that an occupation would also attract greater media and public attention. Mr O’Flaherty said that he had intended to stay in Martin Place continuously and indefinitely as part of a public demonstration to highlight issues of social and economic inequality by enduring for himself the hardship of living on the street. He described the very act of occupation as an act of communication of political ideas.
O’Flaherty stayed overnight in Martin Place on both 21 and 22 October 2011, sleeping in a sleeping bag laid on a yoga mat, and  sharing his concerns with other protesters and passers-by. He was subsequently arrested.

The City officials were unimpressed by the occupation; the judgment states that
The evidence indicated that despite the efforts of the protest’s organisers, rubbish accumulated on the site and stains appeared on the pavement – even after the arrests in October 2011. For example, an inspection of Martin Place conducted in April 2012 revealed chalk graffiti from Occupy Sydney, urine and “vomit throughout”. In January 2012 a proper steam clean was unable to be carried out because protest leaders refused to move some of their items. A powerful odour lingered and staining remained after about 20 minutes of steam cleaning. On other occasions the area was not steam cleaned at all because belongings were not removed.
O'Flaherty argued that
the ends of the prohibition may be legitimate but the means by which the ends are achieved are not reasonably appropriate and adapted to serve those ends in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. He says that the arrests have had a chilling effect on the protesters’ activities, pointing to the dramatic reduction in the number of protestors prepared to stay overnight. He points out that of the 10 complaints made to the City about the protest, none of them related to staying overnight and none of them suggested inconvenience to the public. He also emphasises the absence of complaints to the police. He submits that there are other less drastic means by which the ends might have been achieved. He contends that the prescribed method – a total ban on staying overnight, punishable as a crime – is not reasonably necessary for that purpose. In other words, the means are disproportionate to the ends. Mr O’Flaherty points out that, while not all the activities that carry a penalty under s 632(1) involve the exercise of the freedom of political communication, some do. He argues that an exception or defence could have been built into the prohibition to protect the implied freedom. He notes that s 632(3) of the Act expressly contemplates exceptions. He contrasts the prohibition with s 199 of the Law Enforcement (Powers and Responsibilities) Act 2007 (NSW) which makes it an offence to fail to comply with police directions but limits the exercise of the power by providing in s 200 that police officers are not authorised to give directions in relation to “an apparently genuine demonstration or protest”. He also points to the fact that new signs that the City has erected elsewhere in recent years do not ban staying overnight. They only prohibit camping.
The Court asked "What are the legitimate ends of the prohibition? Are those ends compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?" In responding it held that
The legitimate ends of the prohibition are maintaining public health, safety and amenity in a high use public area and preserving the ability of all members of the public to use the area. Those ends are compatible with the maintenance of the constitutionally prescribed system of government.
Katzmann J referred to Corneloup and to Levy v The State of Victoria (1997) 189 CLR 579, aka the Duck Shooting Case.  He stated that
Martin Place is a popular precinct attracting a large amount of pedestrian traffic. No doubt that was one of the reasons the protesters decided to gather there. A survey of pedestrian use commissioned by the City shows that, between the hours of 8.00 am and midnight on a weekday in March 2007, more than 60,000 people passed through it and in July 2007, nearly 90,000. The prohibition facilitates and (the evidence indicates) is designed to accommodate cleaning at times when there is little pedestrian traffic and a negligible audience for any protest activities, minimising the impairment of any communication.
.... permitting protesters to stay overnight would detrimentally affect the City’s capacity to undertake the functions with which the Parliament entrusted it. At all events, it would interfere with the City’s capacity to do so efficiently, particularly if the protesters realised their ambition to occupy Martin Place indefinitely. It would also interfere with the rights of other members of the public to use the area. The fact that there were few complaints about Occupy Sydney from the public and that none of them concerned staying overnight is neither here nor there. Once the protesters were removed on 23 October 2011 very few stayed overnight again. In any case, whether the prohibition is constitutionally valid does not depend on how many complaints are made about the conduct it was designed to deter. Mr O’Flaherty submitted that there was no rational basis for the respondents’ argument that staying overnight threatens to block access to Martin Place by members of the public not involved in the protest. He also submitted that there was no rational connection between the prohibition against staying overnight and the promotion of public health, safety and public amenity. I reject both submissions.
The more successful the protest, the more people are likely to be attracted to the cause and with this, the greater the interference with the rights of others wishing to use the space. What about those who needed to use it, for example, to gain access to Martin Place railway station from Macquarie Street or to leave the station to get to Macquarie Street?
The greater the number of people staying overnight, the greater the interference with the City’s capacity to carry out its maintenance responsibilities. On the evidence called by Mr O’Flaherty, the rally on 15 October 2011 attracted around 3,000 people. The police estimate at a given time was 600. Either way, the numbers are significant for the area. In theory, the protestors (or hundreds like them) could have stayed on the site for days, months, even years on end. That would have transformed Martin Place into an obstacle course, if not the private domain of the protesters, and made it extremely difficult (perhaps impossible) for the City to clean and conserve it. This would have had a deleterious effect on the environment and public health. It would also have deprived any other group (including those with a political message) of the use of the space.