Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Oaky Creek Coal Pty Ltd v Central Highlands Regional Council

 

[2017] QSC 188

Reported at [2018] 2 Qd R 149

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Oaky Creek Coal Pty Ltd v Brodsky & others [2017] QSC 188

PARTIES:

OAKY CREEK COAL PTY LTD

(applicant)

v

CENTRAL HIGHLANDS REGIONAL COUNCIL

(first respondent)

CHRISTOPHER IAIN BRODSKY

(second respondent)

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

(third respondent)

MAGISTRATE J R CLARKE

(fourth respondent)

FILE NO:

BS8347/17

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

5 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2017

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. An order in the nature of certiorari is made quashing the order made by the Magistrates Court at Rockhampton on 11 August 2017.

2. The application for an order under s 12 of the Peaceful Assembly Act 1992 (Qld) be remitted to the Magistrates Court at Emerald.

3.  The public assembly held from 13 August 2017 until the making of this order under the assembly notice given on 27 July 2017 is declared to have been an authorised assembly within the meaning of section 7 of the Peaceful Assembly Act 1992 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the second respondent as organiser for the third respondent as an organisation gave notice of intention to hold a public assembly under s 8 of the Peaceful Assembly Act 1992 (Qld) – where the first respondent brought an application under s 12 of the Peaceful Assembly Act 1992 (Qld) for refusal to authorise the public assembly – where prior to the hearing the first, second and third respondents agreed on an order setting conditions for the public assembly – where the Magistrates Court at Rockhampton made the agreed orders at the hearing of the application – where the applicant was not able to appear at the hearing of the application despite contacting the Court to communicate their desire to attend – whether an order in the nature of certiorari should be made quashing the decision of the Magistrates Court at Rockhampton

Acts Interpretation Act 1954 (Qld), s 32C

Judicial Review Act 1991 (Qld), s 4, s 41

Magistrates Court Act 1921 (Qld), s 43

Peaceful Assembly Act 1992 (Qld), s 5, s 6, s 7, s 8, s 9, s 10, s 12, s 16

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493, applied

Badenach v Calvert (2016) 257 CLR 440, cited

Bateman’s Bay Local Aboriginal Council v Aboriginal Community Benefit Fund (1998) 194 CLR 247, cited

Bechtel Construction (Australia) Pty Ltd v Construction Forestry Mining and Energy Union [2015] FCA 778, cited

Bread Manufacturers of NSW v Evans (1981) 180 CLR 404, cited

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, followed

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 333 ALR 384, cited

Evans v Donaldson (1909) 9 CLR 140, cited

Harrison v President, Industrial Court [2017] 1 Qd R 515, cited

Hill v Van Erp (1997) 188 CLR 159, cited

Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, cited

Kioa v West (1985) 159 CLR 550, cited

Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, applied

McFadzean & ors v Construction Forestry Mining and Energy Union (2007) 20 VR 250, discussed

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, cited

Northern Territory of Australia v Mengel (1995) 185 CLR 307, cited

Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, cited

R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, cited

Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160, not followed

Sullivan v Moody (2001) 207 CLR 562, discussed

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, cited

Watson v Trenerry (1998) 122 NTR 1, discussed

COUNSEL:

J Horton QC with G Dann for the applicant

J Davies for the first respondent

M P Amerena with C Hartigan for the second and third respondents

SOLICITORS:

Ashurst Australia for the applicant

King & Company for the first respondent

Hall Payne for the second and third respondents

 Jackson J

  1. The applicant applies for an order of statutory review or an order in the nature of certiorari to set aside or quash an order made on 11 August 2017 by the Magistrates Court at Rockhampton (“the Court”) or declaratory relief as to its invalidity.
  1. The order was made or purportedly made by the Court under s 12 of the Peaceful Assembly Act 1992 (Qld) (“PA Act”).  The first respondent had applied for an order refusing to authorise the holding of a public assembly.  The order made specified or purported to specify conditions that were and are to apply to the holding of the assembly. I will refer to it as the “conditions order”.
  1. The applicant challenges the validity of the conditions order on a number of grounds.  First, it contends that the PA Act did not authorise the Court to make an order specifying conditions for an assembly to be held for longer than a day.  Second, it contends that the Court proceeded in breach of the rules of natural justice in making the conditions order without dealing with the applicant’s application to be heard by telephone to apply to be heard or joined as a party to the proceeding under s 12. Third, it contends that for the same reason the conditions order as made was unreasonable.  Fourth, it contends that because the Court made the conditions order by consent and gave no reasons for it the Court erred in law in exercising the power under s 12.
  1. The respondents oppose the application on a number of grounds. The first respondent did not advance all of the grounds.  First, the respondents contend that because the conditions order is not an administrative decision it is not subject to a statutory order of review.  Second, they contend that because of the privative effect of s 43 of the Magistrates Court Act 1921 (Qld) (“MC Act”) this court is deprived of power to grant an order of review in the nature of an order for certiorari, except for jurisdictional error.  Third, they contend that because the PA Act does not provide for the applicant to be a party to a proceeding for an order under s 12, the applicant was not deprived of natural justice.  Fourth, they contend that for the same reason the conditions order was not unreasonable. Fifth, they contend that the Court had power to make an order specifying conditions that apply to an assembly for longer than one day.  Sixth, they contend that the Court had power to make the conditions order by consent without giving reasons.

Background facts

  1. The intersection of Grasstrees Rd and the Oaky North Mine Access Road (“Access Road”) is a “T” intersection, located 17 kilometres from Tieri in Central Queensland.  Grasstrees Road forms the top of the “T” and the Access Road is the bottom of the “T”.
  1. The Access Rd is the only public road for entrance and exit from the Oaky North coal mine (“Mine”).  It is used by employees, contractors, suppliers and other visitors.
  1. The applicant’s business is the production and sale of coal from the Mine.  The first respondent is the local government for the area which includes the intersection. The second respondent is an officer of the third respondent, a well-known trade union organisation.
  1. There is an enterprise agreement in place at the Mine, known as the Oaky Creek North Mine Enterprise Agreement, that reached its normal expiry date on 1 June 2015.  From May 2015, the Union and the workers and the employer have been bargaining for a new enterprise agreement.  In support of the process, the Union has organised for its members to participate in a protest. The protest is designed to gain support for the workers and to further their bargaining position.
  1. The protest is being carried on at the intersection.  From 13 August 2017 until the present day, protesters have assembled in designated locations on the road reserve of Grasstrees Rd on the bottom of the “T” on either side of the Access Road (“Locations”).  From the Locations, they seek to “further [the workers’] bargaining position” by focussing on traffic leaving and entering the Mine. Protesters remain in the Locations on the road reserve 24 hours per day 7 days per week.
  1. On 27 July 2017, the second respondent as organiser for the third respondent as an organisation gave notice of intention to hold a public assembly at the Locations, for the days from 4 August 2017 to 25 December 2017, for 24 hours per day.  The notice was given or purported to be given under s 8 of the PA Act.  It is not in dispute that subject to the points subsequently considered in these reasons the notice was given under s 8 of the PA Act and complied with s 9 of the PA Act.
  1. On 2 August 2017, the first respondent filed an application in the Magistrates Court at Emerald for an order that the court refuse the authorisation to hold the proposed public assembly under s 12 of the PA Act (“Application”).  The respondents to the Application were the second respondent and the third respondent.  The Application provided that it would be heard on 3 August 2017.
  1. On 3 August 2017, the Magistrates Court at Emerald adjourned the hearing of the Application to 11 August 2017.  By a process that is not entirely clear the adjourned hearing was to come on at the Magistrates Court at Rockhampton at 9:00 am.
  1. On 10 August 2017, at 10:04 am, the solicitors for the first respondent sent an email to the court houses at Emerald and Rockhampton advising that the parties had reached a settlement.
  1. On 10 August 2017, at 10:39 am, a court services officer (“Court Services Officer”) from the Magistrates Court at Rockhampton sent an email to the solicitors for the first respondent asking for a copy of the proposed consent order and other relevant material as soon as possible.
  1. On 10 August 2017, at 2:48 pm the solicitors for the first respondent sent an email to the Court Services Officer enclosing a copy of an affidavit of Scott Mason and a copy of the proposed consent order.
  1. On 10 August 2017, at 3:16 pm, the third respondent’s legal officer sent an email to the Court Services Officer and the court house at Emerald advising that the respondents to the Application were in agreement with the order and content for the matter to be determined on the papers.  He advised he would be available by telephone should the matter proceed the following day.
  1. On 10 August 2017, at 3:28 pm the solicitor for the first respondent sent an email to the Court Services Officer, the court house at Emerald and the respondents enclosing a proposed consent order with attachments.
  1. On 10 August 2017, at 4:11 pm, the solicitor for the first respondent informed the solicitor for the applicant that the first respondent and the third respondent had agreed to proposed consent orders whereby an assembly could be held subject to a set of conditions and that the Application had been transferred to the Magistrates Court at Rockhampton and was listed for 9:00 am the next day.
  1. On 10 August 2017, at 4:19 pm the Court Services Officer sent an email to the solicitors for the first respondent that his request to appear by telephone had been granted and that the depositions clerk wold contact him in the morning by telephone just prior to the matter proceeding.
  1. On 10 August 2017, at 4:38 pm the legal officer for the third respondent sent an email to the Court Services Officer requesting to appear by telephone for the second and third respondents.
  1. On 10 August 2017, at 4:58 pm the Court Services Officer sent an email to the legal officer for the third respondent advising she had been unable to obtain permission for the second and third respondents to appear by telephone.
  1. On 10 August 2017, at 8:59 pm the solicitor for the applicant sent an email to the solicitor for the first respondent requesting copies of the assembly notice and the conditions that the first and third respondents had agreed.  She also advised that the applicant’s solicitors held instructions to seek leave to appear at the hearing.
  1. On 10 August 2017, at 9:21 pm, the solicitor for the applicant sent an email to the court house at Rockhampton advising that they sought leave to appear by telephone on the following morning.  The email stated that the applicant’s solicitors had been unable to arrange for representation in person and that they understood that the first respondent was to appear by telephone.
  1. On 11 August 2017, at 5:48 am, the third respondent’s legal officer sent an email to the Court Services Officer advising that he would attend in person at the Magistrates’ court in Rockhampton that morning.
  1. On 11 August 2017, at 8:30 am, the solicitor for the applicant spoke to the depositions clerk at the Magistrates Court at Rockhampton by telephone as to appearing by telephone at the hearing.  He said that he would need to check the email and to speak to the Magistrate.
  1. On 11 August 2017, at 9:03 am, the solicitor for the applicant spoke to the depositions clerk by telephone again.  The depositions clerk said that he had not heard back from the Magistrate and that he would check again and call the solicitor for the applicant back.
  1. On 11 August 2017, at 9:05 am, the solicitor for the applicant spoke to the solicitor for the first respondent by telephone.  He said to her that he was waiting for the court to telephone to appear.  She said the she was also waiting on a telephone call from the court.
  1. On 11 August 2017, at 9:19 am, the hearing started in the Magistrates Court at Rockhampton.  The fourth respondent announced that the third respondent’s legal officer was present at the bar table.  The first respondent announced his appearance by telephone.
  1. The hearing lasted two minutes.
  1. The Court made an order that the proposed public assembly referred to in the assembly notice dated 27 July 2017 be held and conducted in accordance with the conditions set out in the annexure thereto.  The annexure contained 14 conditions.
  1. No call was made by anyone on behalf of the court to the applicant’s solicitors before the hearing proceeded.  The court had called the solicitor for the first respondent and he appeared by telephone at the hearing.  Neither the fourth respondent nor the solicitor for the first respondent mentioned the applicant’s solicitors attempts or stated desire to be heard by telephone.
  1. On 11 August 2017, at 9:55 am, the Court Services Officer (who had granted the first respondent’s application to be heard by telephone) telephoned the solicitor for the applicant and informed her that the application had been heard.
  1. On 13 August 2017, protesters occupied the Locations and started the public assembly the subject of the assembly notice given on 27 July 2017.

Scheme of the PA Act

  1. Absent the PA Act, there is a right of peaceful assembly at common law.  A statement of the law made in the context of the modern Australian polities may be taken from the reasons of Angel J of the NT Court of Appeal in Watson v Trenerry:[1]

“The peaceable combination of people in public places for the purposes of expressing opinions and of protest against political decisions is but the exercise of the ordinary civil freedoms of opinion, of speech, of assembly and of association. These freedoms reflect the importance our society places on open discussion and the search for truth, the need for diversified opinions to be known and for the strengths and weaknesses of those opinions to be identified, the right to criticise, the value of tolerance of the opinions of others, and the social commitment to the value of individual autonomy, all vital to the health of any democratic system of open government. A peaceful demonstration or protest, whether by assembly or procession in a street, is nowadays accepted by members of the community as a safety valve for the community and potentially at least as an agent for change and for the good. An ordinary incident of any assembly or procession through the streets is some inconvenience to others. Protests test tolerance of difference and of inconvenience. There may be some noise. Members of the public may witness and hear messages they did not wish to see and to hear. They may consider such messages to be anathema. There may be a gross affront to some sensibilities. Nonetheless peaceable protests are to be tolerated in the recognition of the freedom of others to hold different opinions, to speak, to assemble, and to associate.”[2]

  1. The common law right is subject to limits.  McFadzean & ors v Construction Forestry Mining and Energy Union[3] is an illustration of such limits.  It concerned picketing of a road in Victoria. The Victorian Court of Appeal said in relation to the facts of that case and the common law and statute applying in that State:

Counsel for the respondents faintly suggested that the respondents’ use of the road was reasonable because it was in furtherance of an industrial picket. We reject that suggestion. Processions may use a public road for passage on lawful occasions for lawful objects provided that the use is reasonable. But a static demonstration or picket is of a different order. A picket line which threatens obstruction of the thoroughfare and besetting of those who wish to travel on the roadway so as to cause persons to hesitate through fear to proceed constitutes an unreasonable obstruction amounting to a public nuisance and an interference with private rights. It amounts to an unreasonable restriction upon the right of an individual to free movement on a roadway. A public road is primarily for free passage of the public for all reasonable purposes. An assembly of persons on a public road which significantly affects free passage is in its nature irreconcilable with the right of free passage, and therefore a public nuisance. It is also a summary offence.[4] (footnotes omitted)

  1. In this State, the common law right was confirmed and extended by ss 5 and 6(1) as well as s 3 of the PA Act.  They provide:

“5 Right of peaceful assembly

  1. A person has the right to assemble peacefully with others in a public place.
  1. The right is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of—
  1. public safety; or
  1. public order; or
  1. the protection of the rights and freedoms of other persons.
  1. In subsection (2)(c), a reference to the rights of persons includes a reference to—
  1. the rights of members of the public to enjoy the natural environment; and
  1. the rights of persons to carry on business.
  1. Nothing in this section limits the power of a local authority to regulate pedestrian malls, but the power is subject to the right mentioned in subsection (1).

6 Legal immunity for participant in public assembly

  1. If a public assembly—
  1. is an authorised public assembly; and
  1. is peaceful; and
  1. is held substantially in accordance with—
  1. the relevant particulars; and
  1. any relevant conditions;

a person who participates in the assembly does not, merely because of the participation, incur any civil or criminal liability because of the obstruction of a public place.”

  1. The statutory effect of ss 5 and 6 is added to by s 3 as follows:

“3 Relationship with other laws

  1. This Act has effect despite any other law relating to—
  1. the right of peaceful assembly; or
  1. the movement of traffic or pedestrians; or
  1. loitering; or
  1. the use or obstruction of a public place; or
  1. the payment of a fee, charge or other amount for a licence, permit or other authorisation relating to a public assembly.
  1. Despite subsection (1), nothing in this Act affects the common law of trespass and, in particular, the right of a person in, or entitled to, possession of land—
  1. to request a trespasser to leave the land; and
  1. if the trespasser refuses to leave on being requested—to remove the trespasser from the land.
  1. In this section—

law includes an Act, a statutory rule and the common law.”

Authorised public assembly

  1. A pre-condition of the extension of the right of public assembly granted by the immunities conferred under s 6 is that the public assembly is an authorised public assembly. Sections 7 – 12 of the PA Act provide:

“7 Authorised public assembly

A public assembly is an authorised public assembly if—

  1. notice of intention to hold the assembly has been given under section 8; and
  1. the notice complies with section 9; and
  1.  the assembly is taken to have been approved under section 10.

8 Giving of assembly notice

  1. An assembly notice is to be given—
  1. to the Commissioner; and
  1. if it is proposed that the assembly will be held in, or pass through, a place that is a park, reserve, pedestrian mall, square or other public place—to any local authority having jurisdiction in relation to the place.
  1. The notice is to be given—
  1. in the case of the Commissioner—by leaving it at, or by sending it to, an appropriate police office; and
  1. in the case of a local authority—by leaving it at, or by sending it to, the office of the clerk of the local authority.

9 Requirements for assembly notice

  1.  An assembly notice must—
  1.  be in writing; and
  1.  be addressed to the Commissioner or the relevant local authority, as the case requires; and
  1.  be signed by the organiser.
  1.  The notice must contain the following particulars—
  1.  the name of the person responsible for organising and conducting the assembly;

(b) the address for service on the organiser of any notice under this Act;

  1.  the name and address of the person by whom the notice is given;
  1.  the day on which the assembly is proposed to be held;
  1.  the place at which the assembly is proposed to be held;
  1.  the time at which it is proposed that persons will assemble to participate in the assembly;
  1.  the times at which it is proposed that the assembly will begin and end;
  1.  if the assembly is a procession—
  1.  the proposed route of the procession; and
  1.  any places at which it is proposed that the procession will stop; and
  1.  the length of time it is proposed that the procession will remain at each such place;
  1.  the expected number of participants;
  1.  the purpose of the assembly;
  1.  a description of any sound amplification equipment proposed to be used during the assembly.

10 Approval of public assembly

  1.  A public assembly is taken to have been approved for the purposes of section 7(c) if, after the giving of the assembly notice for the assembly—
  1.  the required notice of permission for the assembly has been given to the organiser of the assembly; or
  1.  if the assembly notice was given not less than 5 business days before the day on which the assembly is held—a Magistrates Court has not made an order under section 12 refusing to authorise the holding of the assembly; or
  1.  if the assembly notice was given less than 5 business days before the day on which the assembly is held—a Magistrates Court has made an order under section 14 authorising the holding of the assembly.
  1.  The required notice of permission for a public assembly is—
  1.  a notice by the Commissioner stating that the Commissioner does not oppose the holding of the assembly; and
  1.  if the assembly notice was given to a local authority—a notice by the local authority stating that the authority does not oppose the holding of the assembly; and
  1.  if the place of assembly is a place for the time being open to or used by the public by the express or implied consent of the owner or occupier or on payment of money—a notice by the owner or occupier of the place consenting to the holding of the assembly.
  1.  A notice mentioned in subsection (2) must be in writing.

11 Permission notice may be subject to certain conditions

  1.  The Commissioner, or local authority concerned, (the relevant authority) may, in a notice given under section 10(2)(a) or (b), specify conditions to which the giving of the notice is subject.
  1.  A condition may not be specified unless—
  1.  the relevant authority has had regard to the objects of this Act; and
  1.  the organiser has agreed, in writing, to the condition; and
  1.  the consultations required by subsection (4) have been held.
  1.  A condition must relate to—
  1.  a matter concerning—
  1.  public safety; or
  1.  the maintenance of public order; or
  1.  the protection of the rights and freedoms of persons; or
  1.  the payment of clean up costs arising out of the holding of the assembly; or
  1.  the recognition of any inherent environmental or cultural sensitivity of the place of assembly; or
  1.  the application to the place of assembly of any resource management practice of a delicate nature.
  1.  For the purposes of subsection (2)(c), the relevant authority must consult, or attempt to consult, with—
  1.  if there is a body known to the relevant authority to represent persons who have a significant interest in the place of assembly—the body; or
  1.  in any other case—each person, body, or agency, (an interested person) known to the relevant authority to have a significant interest in, or responsibility for, the place of assembly.
  1.  If the relevant authority considers that, because of time constraints and the number of interested persons involved, it is not practicable—
  1.  to hold separate consultations with each interested person; or
  1.  to contact each interested person for the purpose of arranging consultations;

the relevant authority may—

  1.  fix a reasonable time and place for holding the consultations; and
  1.  cause a notice of the time and place to be published in a newspaper circulating in the area in which the assembly is proposed to be held.

12 Application for refusal to authorise public assembly

  1.  If an assembly notice is given to the Commissioner, or local authority concerned, (the relevant authority) not less than 5 business days before the day specified in the notice as the day on which it is proposed that the public assembly be held, the relevant authority may apply to a Magistrates Court for an order refusing to authorise the holding of the assembly.
  1.  The Court must be in the Magistrates Courts District in which the public assembly is proposed to be held.
  1.  The Court may, by order—
  1.  refuse to authorise the holding of the public assembly; or
  1.  specify conditions that are to apply to the holding of the public assembly.”
  1. Under those sections, only a public assembly that is taken to be approved under s 10 can be an authorised assembly under s 7.  Where the notice seeking permission for the assembly, described as the “assembly notice”, is given not less than 5 business days before the assembly, there are two pathways to the assembly being taken to have been approved under s 10.  First, the required notice of permission may be given under s 10(2).  Second, that result follows where the required notice of permission is not given under s 11 but no order is made by the Magistrates Court refusing to authorise the holding of the assembly on an application made under s 12.

Not an administrative decision

  1. The power to decide an application under s 12 is conferred on the Magistrates Court in the relevant Magistrates Court District.  The Magistrates Court is constituted under the MC Act.  It is a statutory court sufficiently described for this case as an inferior court of record with the statutory civil jurisdiction conferred upon it by the MC Act and other Acts.
  1. When an application is made under s 12 of the PA Act that section specifies the orders that may be made, namely either an order refusing to authorise the assembly or an order specifying the conditions that are to apply to the holding of the assembly. 
  1. The effect of an order refusing to authorise the assembly is to disengage s 10(1)(b) of the PA Act as a pathway for an assembly to be taken to have been approved.  The effect of an order specifying conditions is that s 10(1)(b) will be engaged as the pathway for an assembly to be taken to have been approved. 
  1. Summarised, an order made under s 12 specifying the conditions will have the conditional effect of granting the immunity from liability conferred by s 6 of the PA Act upon all participants in the assembly.  It expands the scope of the correlative right of peaceful assembly that is conferred or confirmed by s 5(1) of the PA Act.
  1. The determination of an application made under s 12 is not one made inter parties as between a participant and the State or prosecuting authority in respect of a participant’s criminal liabilities or as between a participant and any person to whom a participant might otherwise be liable under civil law.  In that sense, the immunities conferred by s 6 are akin to a class determination of status.  Nevertheless, once conferred, the status operates for each participant as a class member to confer individual immunities and an expanded correlative right of peaceful assembly.
  1. The jurisdiction of the Magistrate Court under s 12 of the PA Act is affected by s 16 as follows:

“16 Hearing and determination of applications

  1. For the purpose of hearing and determining an application under section 12 or 14, a Magistrates Court is to be constituted by— 
  1. a Stipendiary Magistrate; or 
  1. if that is not practicable—2 justices, each of whom is either— 
  1. a justice of the peace (magistrates court); or 
  1. a justice of the peace (qualified); 

within the meaning of the Justices of the Peace and Commissioners for Declarations Act 1991. 

  1. In determining an application under section 12 or 14, a Magistrates Court— 
  1. must have regard to the objects of this Act; and 
  1. must determine the application with the greatest possible speed to ensure that the application is not frustrated because of delay by the Court in giving its decision; and 
  1. is not bound by the rules of evidence; and 
  1. must conduct the proceeding with as little formality and technicality as possible. 
  1. Each party to the application is to bear the party's own costs of the proceeding, regardless of the outcome of the proceeding. 
  1. Not more than 1 application may be made under section 12 or 14 in relation to the same public assembly. 
  1. Subsection (1) has effect despite anything contained in the Justices of the Peace and Commissioners for Declarations Act 1991.”
  1. None of those requirements changes the character or effect of the decision to be made.  The dispensation with the rules of evidence assumes that otherwise the court would be bound to act in accordance with those rules.  The requirement to have regard to the objects of the PA Act does not gainsay that the decision is one made in the exercise of a discretionary power.  The exercise of a discretionary power that confers rights or immunities on a defined class of persons as the result of a determination of a dispute between a representative of the class and an adverse party that quells the controversy over whether those rights or immunities should be granted to class members is within the scope of the exercise of judicial power.
  1. In my view, the conditions order was not a decision of an administrative character.  It was a judicial decision that is not subject to a statutory order of review because it is not a decision to which the Judicial Review Act 1991 (Qld) (“JR Act”) applies within the meaning of s 4 of that Act.

  Certiorari

  1. By s 41 of the JR Act this court may not issue a prerogative writ of certiorari but may make an order in the nature of that writ that has the same effect. Prior to enactment of the JR Act, this court could issue a writ of certiorari directed to the Magistrates Court on a number of grounds.
  1. However, s 43 of the MC Act provides as follows:

“43 Judgments to be final

  1. Subject to this Act, all judgments and orders made by a Magistrates Court shall be final and conclusive. 
  1. Except as provided by this Act, or by or pursuant to any other Act now in force or hereafter to be passed, a judgment given by a Magistrates Court, or an action brought before it or depending therein, shall not be removed by appeal, motion, writ of error or certiorari, or otherwise into any other court.”
  1. Section 43(1) does not deprive this court of power to make an order in the nature of certiorari under s 41 of the JR Act. It operates in conjunction with ss 44 and 45 to identify the final character of a judgment or order of the Magistrates Court and the circumstances in which a party may apply for a new trial after a final judgment, by order  or may appeal from a final judgment or other order.
  1. Section 43(2) of the MC Act in terms prohibits this court from issuing certiorari to quash a judgment of the Magistrate’s Court.  It applies to this court making an order in the nature of certiorari quashing the conditions order.  However, if the ground of judicial review for such an order amounts to jurisdictional error, it is now accepted law that s 43(2) is to that extent beyond the constitutional power of the Parliament of Queensland and invalid.[5]
  1. In general terms, the creation of a statutory right of appeal does not deprive this court as a superior court of record of its power to issue a writ of certiorari to an inferior court of record, although often as a matter of discretion it would decline to do so. 
  1. The respondents submit that there was a statutory right of appeal in the present case.  Of course, the applicant had not been made a party to the application under s 12 of the PA Act, so it did not have the right of appeal conferred on a party under s 45 of the MC Act.  But even if it had been made a party or could appeal if it had not, the appellate jurisdiction of the District Court under s 45 did not include an appeal from an order made on an application under s 12. The applicant had no right of appeal.
  1. On the other hand, if the applicant had been a party to the application, it might have made an application to sets aside the conditions order under either s 44 of the MC Act or r 667 of the Uniform Civil Procedure Rules (Qld).  That rule provides in part:

“667 Setting aside

(1) The court may vary or set aside an order before the earlier of the following— 

(a) the filing of the order; 

(b) the end of 7 days after the making of the order.”

  1. Section 44 of the MC Act provides, in part:

‘44 New trial

(1)Subject to this Act, any party dissatisfied with any decision of a Magistrates Court may, at any time within 7 clear days from such decision, apply to the court for a new trial.

(2) The court may grant the same upon such terms as to costs or otherwise as it thinks fit, or, in its discretion, may refuse the same with or without reasonable costs.”

  1. Of course, the question would have remained whether the applicant as a non-party could apply for an order under r 667 or s 44.

Standing

  1. Although the effect of a conditions order on the civil liability of participants for some torts are matters of private law, its effect on criminal liability and its effect on public nuisance are a matter of public law. On an application for an order in the nature of certiorari or for declaratory relief over the same subject matter, standing is a relevant concept.
  1. The historical development of that concept and the somewhat haphazard nature of that development and its deployment by the courts are essayed by Gummow J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd.[6]  The interrelationship of “standing” in the context of claims brought for a common law writ of certiorari or for an equitable bill for an injunction or declaration in relation to public law rights are subjects of some complexity.  But for present purposes, it is enough to observe that where a plaintiff’s claim is that a public right has been infringed, the proper plaintiff is usually the Attorney-General.  Private persons could instigate the proceeding by means of obtaining the Attorney-General’s fiat and bringing a relator proceeding. Without the Attorney-General’s fiat, a private plaintiff did not have “standing” to bring the proceeding for the claimed relief unless they could show a sufficient interest to be excepted from that requirement.[7]
  1. There are variations among the cases as to the test to be applied to answer the question whether a plaintiff has a sufficient interest to confer standing in such a case.  The range of views was canvassed in Bateman’s Bay Local Aboriginal Council v Aboriginal Community Benefit Fund.[8]  But as was said in Onus v Alcoa of Australia Ltd,[9] whether the plaintiff has such an interest is a question of degree, but not of discretion.
  1. I take the statement in Australian Conservation Foundation v The Commonwealth[10] that a plaintiff must show “special damage peculiar to himself” in the sense that it means “having a special interest in the subject matter of the action” as a reliable guide, although I acknowledge the discussions of its limitations in the cases I have mentioned.
  1. Applied to the facts of the present case, the purpose of the assembly to which the conditions order relates is to apply pressure to the applicant, non-union workers and other persons who have business at the Mine in the context of an underlying dispute over the enterprise bargaining agreement.  The enhancement of the right of peaceful assembly of participants under s 5(1) of the PA Act, by reason of the immunities from liabilities for obstructing the road conferred on participants by s 6(1) of the PA Act, is granted at the possible diminution of any correlative rights and freedoms of the applicant in respect of that obstruction including the right of the applicant to carry on business or to any possible remedy for any public nuisance constituted by that obstruction.
  1. The second and third respondents conceded, at the outset of the hearing that the applicant had standing to bring the application in this court.  In my view, it was a properly made concession.

Power to make a conditions order for longer than a day

  1. The applicant contends, in effect, that:
  1. the requirements in s 9(1)(a) of the PA Act that the assembly notice particularise “the day on which the assembly is proposed to be held”, “the time at which it is proposed that persons will assemble” and “the times at which it is proposed that the assembly will begin and end”;
  1. the references in s 10(1)(b) and (c) of the PA Act to “the day on which the assembly is held”; and
  1. the reference in s 12(1) of the PA Act to “the day specified in the notice as the day on which it is proposed that the public assembly be held”

require that a valid assembly notice relates to an assembly that is to take place on one day only and that a conditions order under s 12 may also only specify conditions that are to apply to the holding of a one day public assembly.

  1. As a simple matter of the ordinary meaning of the text of those provisions, there is some force in that submission.  But the process of statutory interpretation takes account of additional and wider considerations.[11]
  1. Importantly, s 32C of the Acts Interpretation Act 1954 (Qld) (“AI Act”) provides as follows:

“32C Number

In an Act—

  1. words in the singular include the plural; and
  1. words in the plural include the singular.”
  1. That section applies, subject to s 4 of the AI Act, as follows:

“4 Displacement of Act by contrary intention

The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act.”

  1. There is no express provision of the PA Act that clearly shows a contrary intention.  The applicant submits that a month or months long around the clock assembly is no assembly at all.  But if the ordinary meaning of the text of the sections referred to is that an authorised assembly may only be an assembly on one day, a two day assembly would be equally invalid.
  1. It may be accepted that s 10(1)(b) and (c) operate somewhat awkwardly if the word “days” is substituted for “day” in “the day on which the assembly is held”.  Common sense would suggest that if an assembly is to be for more than one day those paragraphs should operate by reference to the first day of the period.
  1. No other difficulty in the operation of the relevant provisions was identified, if “day” is read to include “days”. 
  1. The question of when a contrary intention appears was considered in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[12] where French CJ said:

“In the present case the displacement of the definitions… is expressly conditioned upon the appearance of a “contrary intention”. This kind of provision, like that in the present s 18 of the NT Interpretation Act, has been described as ‘a standard device to spare the drafter the embarrassment of having overlooked a differential usage somewhere in his [or her] text’. The ninth edition of Craies on Legislation calls it:

 a general gloss of a kind that would have to be inferred in any event, where a provision elsewhere in the legislation to which the definition purported to apply showed by express provision or necessary implication that the definition was not intended to apply there.

The exclusion of a particular definition where a ‘contrary intention’ appears would be implied in any event. A contrary intention may appear from context or legislative purpose. But, as Pearce and Geddes observe:

  A good drafter will indicate ‘the contrary intention’ clearly.”

  1. In my view, even allowing for the point made previously as to the awkward operation of s 10(1)(b) and (c), no contrary intention appears sufficiently to repel the application of s 32C of the AI Act to the PA Act in referring to the day on which the assembly is to be held.
  1. The applicant’s other submission about the scope of the provisions of the PA Act and the limits of what may be an authorised public assembly take as their starting point that the proposed assembly in the present case is an assembly in aid of protected industrial action within the meaning of the Fair Work Act 2009 (Cth) (“FW Act”).
  1. The applicant submits that the FW Act contains a procedural regime for the parties to bargain to obtain an enterprise agreement.  So much may be accepted, without descending into the detail.  Next, the applicant submits that the FW Act contains a procedural regime that must be completed before a party can take protected industrial action.  Again, that much may be accepted, without going into the detail. Third, the applicant submits that picketing falls outside the scope of protected industrial action because it is not industrial action.[13]
  1. The purpose of these submissions is to make the further submission that the need for “coherence in the law” and the terms of the PA Act and the FW Act result in the activities of the assembly as proposed in the present case being outside the scope of the province of the PA Act, meaning outside the scope of what can be an authorised public assembly, on the proper construction of the PA Act.
  1. First, there is nothing in the text of the PA Act that supports that submission.  It would be surprising if it did, given that the PA Act became law in 1992.
  1. Second, in my view, coherence in the law has nothing to do with the inter-operation of the the PA Act and the FW Act.  Early references by the High Court to “coherence in the law”[14] are all concerned with the doctrine of stare decisis.  Since that expression has appeared in other contexts,[15] it has been deployed to call attention to the effect on other common law or equitable rights of the development of new causes of action or principles.[16] One of the best examples is Sullivan v Moody,[17] where the High Court considered the existence of a duty of care for the tort of negligence in the communication of information under a statutory power or duty in a particular context.  The court said:

“The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.

More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.”[18]

  1. With one notable exception, coherence in the law has never been a criterion articulated by the High Court as a principle for the interpretation of statutes. The exception appears in Sons of Gwalia Ltd v Margaretic,[19] where Callinan J said:

“It is desirable that an Act be read so as to maintain coherence in the law and promote fairness, if a construction to achieve those ends is reasonably available.”[20]

  1. However, none of the other Judges in that case endorsed or referred to that proposition and it has not appeared since in any statements by the High Court as to the principles of statutory interpretation. 
  1. In any event, in the present case the effect of the applicant’s submission is that a State Act should be construed having regard to the scope of a Commonwealth Act so as to determine the inter-operation of the relevant Commonwealth and State Acts.
  1. That inter-operation is principally regulated by constitutional considerations.  First, where a law of the State is not a law with respect to a matter that is exclusively within Commonwealth power, and would otherwise operate according to its terms, any inconsistency between a law of the State and a law of the Commonwealth is resolved by the paramountcy given to a law of the Commonwealth under s 109 of The Constitution.
  1. Second, s 9(1) of the AI Act provides that:

9 Interpretation of Act in relation to Parliament's legislative power

  1. An Act is to be interpreted as operating—
  1.  to the full extent of, but not to exceed, Parliament's legislative power; and
  1. distributively.”
  1. The submission that the PA Act should be read down so as not to “deal” with an assembly that has the purpose stated by the second respondent in the assembly notice in this case because of a perceived principle of “coherence in the law” in the interpretation of statutes, having regard to the terms of the FW Act, must be rejected. 

Failure to independently consider the discretion

  1. The applicant submits that because the fourth respondent made the conditions order by consent he failed to properly consider whether he should make the conditions order or acted under dictation or undue influence of the parties.
  1. Acting under dictation in this context usually refers to a decision maker making the decision in accordance with the wishes of someone on whom the power to make the decision is not conferred.[21]  For example, a Magistrate’s Court may not act upon a Minister’s or government’s instruction in exercising a judicial power.[22]  That is not this case at all. 
  1. Failure to give “proper genuine and realistic consideration to the merits of the case” for the exercise of a discretionary power is sometimes raised as a ground of judicial review of an administrative decision.[23]  There are many statements that such a formulation flirts with the forbidden territory of merits review.  In Minister for Immigration and Citizenship v SZJSS,[24] the High Court said:

“In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan’s case and said of the language of “proper, genuine and realistic consideration”:

That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.” (footnotes and citations omitted)

  1. However, in my view, in this case, the question is not whether the fourth respondent gave proper, genuine, and realistic consideration to the merits of the application in the administrative law context.  The question arises in this case in the context of judicial power and an order made when the parties consent to the order.
  1. In my view, the applicant’s argument is more accurately characterised as a contention of an error of law because the Court made an order by consent without independent consideration of the exercise of the discretionary power conferred under s 12.  There are many situations where a court exercising judicial power is required to consider the exercise of the power as a matter of discretion, notwithstanding that the parties to the proceeding before it agree as to the order that should be made and propose a “consent order”.  In such a case, if the court fails to consider the exercise of the power for itself, and simply makes the order sought by the parties, there is an error of law.
  1. In my view, in making an order under s 12 of the PA Act, the Magistrates Court is required to consider the exercise of the discretionary power for itself, whether or not the parties to the application agree to a particular order.  That follows from three features.  First, the holding of an assembly in a public place affects the public in terms of public safety and public order, as recognised by the objects of the PA Act, as set out in s 2, to which the Magistrates Court must have regard under s 16(2).  Second, an order refusing to authorise an application and an order specifying conditions that are to apply to the holding of an assembly affect the rights and immunities of persons who are not parties to the application.  Those persons include the participants in the proposed assembly.  They may be represented, in a sense, by the organiser who is a party to an application under s 12, but they are not parties to any agreement as to the order to be made.  Second, those persons include persons who will be affected or inconvenienced by the proposed assembly, including those whose rights in respect of any obstruction of the public place may be diminished by an order specifying conditions.
  1. I would add that a notable feature of the present case is that although the first respondent applied for an order refusing to authorise the holding of the assembly, it did not make the Commissioner of Police a party to the proceeding. The commissioner is a relevant authority to whom the assembly notice must be given under s 8 of the PA Act and who may apply for an order under s 12.  When an assembly notice is given to the Commissioner under s 8 he may specify conditions under s 11(1).  If, as happened in this case, the local government and the organiser and the organisation are the only parties to an application made by the local government under s 12, and they agree to an order specifying conditions, the Commissioner will not be a party heard on the proposed conditions.
  1. If, therefore, the applicant can show that in making the conditions order the Court simply treated it as an order that could be made by consent without considering independently whether the discretion should be exercised as proposed, in my view, the conditions order will have been made in error. 
  1. The applicant tendered a transcript of the hearing before the Court on 11 August 2017.  From the transcript it appears that after the appearances of the first respondent (as applicant) and the second and third respondents (as first and second respondents) were taken, the fourth respondent said that he had read correspondence to the effect that there was an agreement as to the disposition of the application. The parties responded “yes”.  The fourth respondent then inquired whether the parties were seeking an order in terms of the draft.   The parties replied “yes”.  The fourth respondent then said:

“Okay.  And I note that the legislation doesn’t allow for an order for costs, does it? So, in those circumstances, I make an order in terms of the draft consent order which has been provided to the court…”

  1. Because no response was made to the applicant’s application to appear by telephone, the applicant is unable to say anything more about what happened at the hearing.
  1. All of the participants at the hearing are parties to the current proceeding.  Through his solicitor the fourth respondent informed this court without objection that he was not aware that the applicant was seeking to be heard at the time he made the conditions order, but otherwise did not participate in the current proceeding, in accordance with the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman.[25]
  1. Neither the first respondent nor the second and third respondents put in any other evidence as to what occurred at the hearing.
  1. In accordance with the times noted on the transcript the whole of the hearing took two minutes.
  1. Nothing in the evidence clearly suggests that the Court appreciated or acted on the footing that the exercise of the power to make an order under s 12 of the PA Act was a matter of discretion that could not be foreclosed by the agreement of the parties.
  1. The second and third respondents submit, however, that as a matter of inference this court should not be satisfied that the Court failed to appreciate or acted on the footing that it could not be foreclosed by the agreement of the parties because: the respondents had communicated the proposed order and material by emails to the Court Services Officer the day before, the Court elected not to proceed on the papers, the fourth respondent asked the parties representatives whether they both sought an order in terms of the draft, the fourth respondent said that that he had read some correspondence to the effect there was an agreement as regards the application that was being brought in the first place. I would add that the order did not record that it was made by consent.
  1. The second and third respondents also submit that the Court was not obliged to give reasons for making the consent order.
  1. Nevertheless, in my view, on the facts of the present case it should be concluded that the first respondent erred in law in failing to consider whether the discretion to make an order specifying conditions should be exercised, beyond making that order as a “consent order” desired by the parties to the application.  Nothing was said that indicated that the court had properly instructed itself that, or was proceeding on the footing that, it was required to exercise an independent discretion.  In my view, the usual practice in a court, in such a case, is that the independent nature of the discretion is recognised in open court, and is not something left to be inferred one way or the other by piecing together the sorts of matters collected by the second and third respondents.  It only takes a sentence or two to make the position clear.

Jurisdictional error

  1. The error of law advanced by the applicant is not that the fourth respondent had no jurisdiction to hear the application because it was ultimately presented as a consent order.  In particular, the applicant did not contend that once the first respondent no longer sought an order refusing authority to hold the assembly the fourth respondent was deprived of jurisdiction under s 12 to make an order specifying the conditions.  I express no view on that question.
  1. Thus, the error was not one made by the fourth respondent in embarking upon the hearing.  However, the error resulted in the fourth respondent making an order on a basis on which he ought not to have made it, because of a misconstruction of what was required before an order could be made under s 12.  Whether the conditions order would have been made as an exercise of independent discretion is a question that was not decided.
  1. In Harrison v President, Industrial Court,[26] in a different context, I discussed in some detail the difficulty that can attach to whether and error of law is a jurisdictional question.  If the error of law in the present case amounted to a constructive failure of the Court to exercise the jurisdiction conferred upon it under s 12 of the PA Act that would be a jurisdictional error.[27]  Although that question in the present case is not free from doubt, on balance I prefer the conclusion that it amounts to jurisdictional error.
  1. The second and third respondents conceded that if the fourth respondent erred in law erred in law in failing to consider whether the discretion to make an order specifying conditions should be made, beyond making that order as a consent order desired by the parties to the application, that error would be a jurisdictional error.  In my view, it was a concession properly made.

Failure to hear the applicant before making the conditions order

  1. The applicant contends that from the time that it communicated that it wished to be heard on the first respondent’s application under s 12 of the PA Act, it was a breach of the rules of natural justice for the Court to proceed to decide the application by making the conditions order without giving it the opportunity to be heard.
  1. Under the express provisions of the PA Act the applicant was not entitled to notice of the application under s 12 or to be made a party to that application. The only express right of the applicant was possibly that under s 13(1)(c) of the PA Act.  That paragraph prohibited the first respondent from making an application under s 12 unless it had consulted or attempted to consult interested persons. An interested person is identified in s 11(4)(b) as a person “known… to have a significant interest in, or responsibility for, the place of assembly.”  It is not necessary to decide whether the applicant was an interested person for present purposes.
  1. Nevertheless, the applicant submits that, in accordance with the well-known principles established in Kioa v West,[28] the applicant was entitled to be heard on the application from when it indicated that it wished to be heard.
  1. The second and third respondents submit that the failure to give the applicant a hearing was not a breach of the rules of natural justice. They submit that if the applicant had applied to be joined as a party or to be heard on the application under s 12 of the PA Act, the Court would not and should not have granted them a hearing.  They submit further that if the Court had heard the submissions that the applicant would have made if it had been granted a hearing, the conditions order would inevitably still have been made.
  1. In light of my conclusion upon the Court’s failure to independently consider the discretion under s 12, it is unnecessary for me to decide these questions.  As the effect of making an order in the nature of certiorari quashing the conditions order is that the first respondent’s application for an order refusing to authorise the assembly will be unresolved,  it would be inappropriate for me to deal further with questions as to joinder or hearing that will be for the Magistrates Court at Emerald to decide.

Order

  1. In the circumstances, in my view, there is no reason for the court to withhold relief in the form of an order in the nature of certiorari.
  1. It is unnecessary, in view of that conclusion, to consider whether a declaration of the rights of the parties could or should have been made.

Further orders as to the rights of the parties

  1. The applicant seeks an order in the nature of certiorari quashing the conditions order with effect from the day when the quashing order is made.  However, in my view, an order in the nature of certiorari for jurisdictional error is not one that this court makes as a matter of discretion from the date of the quashing order.  Certiorari for jurisdictional error is an order that vindicates that the original decision made by an inferior court is invalid ab initio.
  1. Second, the applicant applies for a declaration that the assembly is not taken to have been approved for the purposes of s 10(1) of the PA Act, “the first respondent’s originating application filed on 2 August 2017… for refusal to authorise the holding of the assembly not having been effectually determined.”
  1. Conversely, the second and third respondents cross-apply, under s 30(1)(c) of the JR Act,  for an order that pending the hearing and determination of the first respondent’s application under s 12 before the Magistrates Court, the assembly organised by the second respondent is an authorised public assembly.
  1. Those respondents submit that s 10(1)(b) the PA Act operates so that if a complying assembly notice (under s 9) is given validly (under s 8) more than 5 days before the first day of the proposed assembly, the assembly is taken to have been approved if an order refusing the holding of the assembly has not been made under s 12.  I agree (assuming the required permission notice has not been given under s 11).
  1. Second, those respondents submit that the effect of an order in the nature of certiorari to quash the conditions order is to restore the parties to the position before the conditions order was made.  The effect is not to make an order refusing to authorise the assembly under s 12 of the PA Act.  I also agree that is the operation of the text of the PA Act.
  1. Accordingly, those respondents submit that the assembly held from 4 August 2011 until now is an authorised assembly within the meaning of s 7 of the PA Act.
  1. The applicant submits that s 10(1) of the PA Act could not be read as having that effect.  It submits that it would be unfair if the effect of the order in the nature of certiorari for which it applied would have the effect that it is worse off than if the conditions order was not quashed, because the quashing order will determine that the conditions were a nullity in law.
  1. In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation,[29] Gibbs CJ said:

“… if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’, as Lord Moulton said in Vacher & Sons Ltd v London Society of Compositors; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.” (citations omitted)

  1. In my view it would contravene the limits on the proper role of statutory interpretation to accept the applicant’s invitation to refashion the text or meaning of s 10 of the PA Act so as to avoid the inconvenient operation of which it complains.
  1. The parties do not dispute that the assembly notice given by the second respondent to the first respondent and the Commissioner of Police was given so as to comply with s 8 or that the contents of the notice complied with s 9. 
  1. In my view, accordingly, it should be declared that the public assembly held from 13 August 2017 until the making of this order under the assembly notice given on 27 July 2017 was an authorised assembly within the meaning of s 7 of the PA Act.

Conclusion

  1. There should be an order in the nature of certiorari quashing the order made by the Court on 11 August 2017.
  1. There should also be a declaration that the public assembly held from 13 August 2017 until the making of this order under the assembly notice given on 27 July 2017 was an authorised assembly within the meaning of s 7 of the PA Act.
  1. I will hear the parties on the question of costs.

Footnotes

[1]  (1998) 122 NTR 1.

[2]  (1998) 122 NTR 1, 6.

[3]  (2007) 20 VR 250.  See also, for another example, Bechtel Construction (Australia) Pty Ltd v Construction Forestry Mining and Energy Union [2015] FCA 778, [20]-[22].

[4]  (2007) 20 VR 250, 282-283 [126].

[5]Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531.

[6]  (2000) 200 CLR 591, 624-629 [88]-[98].

[7]Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 608-609 [37]-[40].

[8]  (1998) 194 CLR 247, 260-268 [33]-[52], 280-283 [92]-[101].

[9]  (1981) 149 CLR 27, 75.

[10]  (1980) 146 CLR 493, 527.

[11]Acts Interpretation Act 1954 (Qld), s 14A.

[12]  (2009) 239 CLR 27.

[13]Director Fair Work Building Industry Inspectorate v Construction Forestry Mining and Energy Union [2014] FCA 1373, [45].

[14]  Or “coherence of the law”.

[15]Hill v Van Erp (1997) 188 CLR 159, 234 may be the first time.  The reasons in Northern Territory of Australia v Mengel (1995) 185 CLR 307, 343 deploys the same concept, although it is called “harmony with the law as it was… and as it has since developed.”

[16]  Recent examples are Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 333 ALR 384, 417 [147] and Badenach v Calvert (2016) 257 CLR 440, [23].

[17]  (2001) 207 CLR 562.

[18]  (2001) 207 CLR 562, 581.

[19]  (2007) 231 CLR 160.

[20]  (2007) 231 CLR 160, 252 [255].

[21]Bread Manufacturers of NSW v Evans (1981) 180 CLR 404, 411 and 429-430.

[22]Evans v Donaldson (1909) 9 CLR 140.

[23]Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291.

[24]  (2010) 243 CLR 164. 

[25]  (1980) 144 CLR 13, 35-36.

[26]  [2017] 1 Qd R 515.

[27]Harrison v President, Industrial Court [2017] 1 Qd R 515, [79]-[81].

[28]  (1985) 159 CLR 550, 582-585.

[29]  (1981) 147 CLR 297, 305.

Close

Editorial Notes

  • Published Case Name:

    Oaky Creek Coal Pty Ltd v Brodsky & others

  • Shortened Case Name:

    Oaky Creek Coal Pty Ltd v Central Highlands Regional Council

  • Reported Citation:

    [2018] 2 Qd R 149

  • MNC:

    [2017] QSC 188

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    05 Sep 2017

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 188 [2018] 2 Qd R 149 05 Sep 2017 Application for statutory order of review granted; order of Magistrates Court of Queensland at Rockhampton on 11 August 2017 is quashed; application for an order under s 12 of the Peaceful Assembly Act 1992 (Qld) remitted to Magistrates Court at Emerald; declaration that public assembly held from 13 August 2017 until 5 September 2017 was an authorised assembly: Jackson J.

Appeal Status

No Status