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Queensland Judgments
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Greene v Gold Coast City Council

 

[2008] QSC 25

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

 

Trial Division

PROCEEDING:

Civil

ORIGINATING COURT:

DELIVERED ON:

25/2/08

DELIVERED AT:

Brisbane 

HEARING DATE:

23/2/08

JUDGE:

Daubney J

ORDER:

1.That until 4.00 pm on 29 February 2008 or further earlier order the respondent, by itself, its employees and its agents, be restrained from limiting or regulating, or purporting to limit or regulate, the display of election signs throughout the City of the Gold Coast in reliance on s 11 of the Gold Coast City Council Local Law Policy No. 7 (Control of Advertising Devices).

2.That by 4.00 pm on Monday, 25 February 2008 the applicant cause a notice pursuant to s 78B of the Judiciary Act 1903 to be given to the Attorneys-General of the Commonwealth and of the various States and Territories.

3.The further hearing of this application be adjourned to 29 February 2008.

4.Costs in the cause.

CATCHWORDS:

CONSTITUTIONAL LAW – RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION – RIGHTS AND FREEDOMS IMPLIED IN COMMONWEALTH CONSTITUTION – Freedom of political communication – Particular cases – Whether an interlocutory injunction should be granted to restrain the Respondent from limiting the display of election signs within the City of the Gold Coast.

EQUITY – EQUITABLE REMEDIES – INUNCTIONS – INTERLOCUTORY INJUNCTIONS – Where Applicant seeks an order to restrain the regulation of political advertising by the Respondent 

COUNSEL:

P Baston for the Applicant

J Webb for the Respondent

SOLICITORS:

Provest Law for the Applicant

City Solicitor, Gold Coast City Council, for the Respondent

[1] On 23 February 2008, at the conclusion of a contested hearing on an application by the applicant for interlocutory injunctive relief, I made the following orders:

On the applicant Mr Greene, by his counsel, giving the usual undertaking as to damages, it is ordered:

1.That until 4.00 pm on 29 February 2008 or further earlier order the respondent, by itself, its employees and its agents, be restrained from limiting or regulating, or purporting to limit or regulate, the display of election signs throughout the City of the Gold Coast in reliance on s 11 of the Gold Coast City Council Local Law Policy No. 7 (Control of Advertising Devices).

2.That by 4.00 pm on Monday, 25 February 2008 the applicant cause a notice pursuant to s 78B of the Judiciary Act 1903 to be given to the Attorneys-General of the Commonwealth and of the various States and Territories.

3.The further hearing of this application be adjourned to 29 February 2008.

4.Costs in the cause.

[2] These are my reasons for making those orders.

[3] The applicant is the State Director of the Liberal Party of Australian (Queensland Division) (‘the Division’), which is an unincorporated association.  He is the registered officer and party agent for the Division for the purposes of the Electoral Act

[4] On 15 March 2008, local authority elections are to be held in Queensland, including the election for the positions of Lord Mayor and 14 divisional councillors of the Gold Coast City Council (‘GCCC’).  The Division is fielding candidates for those positions, and Mr Greene deposes that this is the first occasion on which a political party has ‘contested an election for the Gold Coast City Council’.  Neither the Lord Mayor nor any existing councillor is seeking re-election as part of any registered political party.  Mr Greene says that, for the purposes of campaigning for this election, he has instructed candidates from the Division to campaign by methods which include displaying 900 x 600 millimetre ‘corflute’ campaign signs in the GCCC areas in which they are campaigning. He says that as a result of those candidates displaying the corflute campaign signs, the GCCC has issued some 18 infringement notices purportedly in reliance on its Local Law 7. 

[5] Mr Greene also deposes to discussions he says he had with Mr Russell, the GCCC’s Local Law signage officer.  Mr Greene says he complained that GCCC compliance officers had confiscated a number of the candidates’ public door knocking signs, and when he told Mr Russell of this Mr Russell said that he would make those signs available for collection at no fee or cost.  He says Mr Russell also told him that Mr Russell was aware that no other local authority in Australia ‘placed restrictions of the type imposed by the GCCC’ and that ‘the existing councillors had met and instructed Council officers to enforce the GCC Local Law’. 

[6] On 15 February 2008, Mr Greene wrote to the Chief Executive of the GCCC asking it to refrain from enforcement action in relation to the election signs until a court had determined the legality of the Local Law.  On 19 February 2008 he was told by the GCCC that no such accommodation would be granted.

[7] In his affidavit sworn on 22 February 2008, Mr Greene then deposed to a number of incidents which occurred on that day in which GCCC compliance officers told candidates that they had been instructed to order that the campaign activities ‘move on’, to confiscate signs where campaign workers questioned GCCC authority and stating to the effect that compliance officers ‘would be out in force this coming weekend to enforce the Local Law’. 

[8] Mr Russell has sworn an affidavit in which he seeks to cast the practice adopted by the GCCC regulating the display of election signage as being based on a ‘risk based approach’.  He says, for example, that the ‘risk based approach’ identified that signs on private freehold property were generally of low risk and low impact and that limited resources should be directed towards them, but that this approach ‘identified that signs on roads and public areas were of a greater risk and that Local Law 7 not permitting election signs on roads for safety reasons should be enforced and resources directed towards this end’.  He exhibits to his affidavit a document entitled ‘GCCC – Election Sign Enforcement Strategy’ which he says is consistent with the ‘risk based approach that was developed in order to assist officers and candidates understand the impact of Local Law 7 and how compliance was to be achieved’.  This document was delivered to all mayoral and divisional candidates in their candidate kits.  Mr Russell then identifies the numerous instances of compliance action undertaken by the GCCC in relation to election signage.  He says:

‘Of particular safety concern is the practice of persons standing on roadsides waving placards distracting drivers at busy roads and intersections.  I consider this to be dangerous behaviour not only for road users but also for persons conducting themselves in this manner i.e. in contravention of the intention of Council’s Local Law 7 which attempts to maintain high safety standards.’

He then instances an occasion on 9 February 2008 when he was involved in regulating what he considered to be unsafe waving of election signs and ‘jigging about on the footpath’ adjacent to Discovery Drive at Helensvale.  He says that his attention was drawn to this activity because he was ‘distracted by a number of persons on the side of the road waving election placards’.

[9] Mr Russell disagrees with some of the detail contained in Mr Greene’s affidavit – for example, he disagrees with the assertion that he was the one who told Mr Greene that he was aware that no other local authority in Australia placed restrictions of the type imposed by the GCCC, and says that it was Mr Greene who made that assertion.  He also recounts having been informed by the individual compliance officers involved in the specific incidents on 22 February 2008 to which Mr Greene referred that the attribution to them of a number of statements, including that they had said to the effect that existing GCCC councillors had met and directed Council officers to enforce the Local Laws, were incorrect.  At least one of those Council officers, however, confirmed having said to the effect that compliance officers ‘would be out in force this coming weekend to enforce the Local Law’, while the other one admitted that he said that ‘Until told differently by his superiors he would be enforcing the Local Laws’. 

[10] Against that background, the applicant moved the Court for urgent interlocutory injunctive relief.  In assessing the competing contentions of the parties on the application, it was, of course, necessary for me to have regard to the two main inquiries required to be undertaken on an application such as this[1], namely:

(a)Whether the applicant has made out a prima facie case, in the sense of showing a sufficient likelihood of success to justify the grant of interlocutory injunctive relief in the circumstances;

(b)If so, where the balance of convenience lies.

[11] The compliance action being taken by the respondent’s officers is said by the GCCC to be authorised by s 11 of its ‘Local Law Policy No. 7 (Control of Advertising Devices)’ (‘LLP7’).  That section provides:

‘11.  (1)Controls

Election signs are prohibited throughout the City except as follows.

i.One double sided sign to a maximum of 1.5 m² in area per face per candidate at each polling place entry be allowed on Election day.

ii.Signage to a maximum of 5m² in face area be allowed at one location nominated as a campaign office for Divisional candidates and two locations nominated as campaign offices for Mayoralty candidates.

iii.Signage to a maximum of 5m² in face area be allowed at two location nominated as a campaign office for State or Federal candidates.

iv.When located on any existing licensed sign.’

[12] The applicant contended that it had a prima facie case (in the relevant sense) to establish that this section of LLP7 is ultra vires the respondent: (a) as an improper curtailment of the constitutional freedom of communication between people concerning political or government matters;  and/or (b) as a consequence of the enactment of s 854AA of the Local Government Act 1993 (‘LGA’).

[13] As to the first of these questions, I consider there to be a prima facie case (in the relevant sense) that a plain reading of s 11 of LLP7 reveals it to be a regulatory curtailment of the communications which individuals involved in the election process are properly entitled to engage in.  In Lange v Australian Broadcasting Corporation[2], the High Court said[3]:

‘Communications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves were central to the system of representative government, as it was understood at federation (245).  While the system of representative government for which the Constitution provides does not expressly mention freedom of communication, it can hardly be doubted, given the history of representative government and the holding of elections under that system in Australia prior to federation, that the elections for which the Constitution provides were intended to be free elections in the sense explained by Birch.  Furthermore, because the choice given by ss 7 and 24 must be a true choice with “an opportunity to gain an appreciation of the available alternative”, as Dawson J point out in Australian Capital Television Pty Ltd v The Commonwealth (246), legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election.

That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors.  Those sections do not confer personal rights on individuals.  Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.  As Deane J said in Theophanous (247), they are “a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ‘right’ in the strict sense”.  In Cunliffe v The Commonwealth (248), Brennan J pointed out that the freedom confers no rights on individuals, and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom.  His Honour said (249):

“The implication is negative in nature:  it invalidates laws and consequently creates an area of immunity from legal control particularly from legislative control.”

[14] As Hayne J observed in McClure v Australian Electoral Commission[4] the freedom of communication to which the Court was referring in Lange’s case is a ‘freedom from governmental action’.  The applicant’s contention is to the effect that s 11 of LLP7 is unconstitutional because it purports to be a legislative control by the GCCC on communications by the candidates for election and the electors of the local authority.

[15] The respondent sought to meet this argument by contending that s 11 did not prohibit election advertising, but merely sought to regulate or control the advertising.  Reliance in that regard was placed on the judgment of Mason CJ in Australian Capital Television Pty Ltd v The Commonwealth[5] in which his Honour drew a distinction between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted.  I note that, after drawing and expanding on that distinction, his Honour said[6]:

‘In weighing the respective interests involved and in assessing the necessity for the restriction imposed, the Court will give weight to the legislative judgment on these issues.  But, in the ultimate analysis, it is for the Court to determine whether the constitutional guarantee has been infringed in a given case.  And the Court must scrutinise with scrupulous care restrictions affecting free communication in the conduct of elections for political office for it is in that area that the guarantee fulfils its primary purpose.’

[16] Section 11, on its face, imposes a blanket prohibition on the display of election signs within the area of the GCCC except for those mentioned specifically in the exceptions.  Those exceptions are limited to signs of a specific dimension at polling places on election day, signs of specific dimension at campaign offices, and signs ‘located on any existing licensed sign.’  All other election signs throughout the City are prohibited.  The enactment of such a prohibition in the terms of s 11 is, to my mind, strongly suggestive of something more than mere regulation of the mode of communication of election information. Rather, to adapt the words of Mason CJ in the Australian Capital Television Case at 143, it seems to me that there is a prima facie case that the prohibition imposed by s.11 is a restriction which imposes a burden on free communication that is disproportionate to the attainment of the competing public interest, which was said in this case to be issues of public road safety. To put this view into its proper context, it is necessary to say something about the legislative framework in which s 11 of LLP7 exists. 

[17] By s 25 of the LGA, the GCCC has jurisdiction to make local laws for, and otherwise ensure, the good rule and government of its territorial unit – in this case, the City of the Gold Coast.  In exercise of the power conferred by s 25, the GCCC has made a particular local law known as ‘Local Law No. 7 (Control of Advertising Devices)’ (‘Local Law No. 7’).  The stated object of Local Law No. 7 is said to ensure that advertisements and associated structures:

(a)Are constructed and maintained to essential standards of public safety;  and

(b)Complement or, at least, do not unreasonably detract from, desirable characteristics of the natural and built environment in which the advertisements are exhibited.[7]

[18] The term ‘advertisement’ is defined[8] to mean ‘an advertisement or sign that is visible from a road or other public place and includes a structure that forms part of the advertisement or sign, or to which it is attached, or on which it is exhibited’. 

[19] Local Law No. 7 contemplates two forms of lawful advertisement, namely:

(a)An advertisement which is a ‘permitted advertisement’;  and

(b)An advertisement, the exhibition of which is approved by the respondent.

So much is clear from the express terms of s 8 of Local Law No. 7, a penal provision, which provides:

Unlawful exhibition of advertisements

8.(1)An advertisement must not be exhibited in the area unless –

(a)the advertisement is a permitted advertisement;  or

(b)the exhibition of the advertisement is approved by the local government.

(2)If an advertisement is exhibited in contravention of subsection (1), the advertiser is guilty of an offence.

Maximum penalty – 50 penalty units.’

[20] Permitted advertisements are dealt with in Part 2 of Local Law No. 7.  Section 5 relevantly provides that the local government may, by local law policy, classify advertisements by reference to criteria stated in the local law policy as permitted advertisements.  The classification of advertisements may be based on one or more of a number of specified criteria, including the content of the advertisement.  Section 6 provides that the local government may, by local law policy, prescribe conditions on which advertisements of a particular class are classified as permitted advertisements.

[21] The other category of advertisement, i.e. those approved by the GCCC, is dealt with separately in Local law No. 7.  Contained within Part 3 of Local Law No. 7 is the procedure to be followed for applying for and obtaining approval of the respondent for exhibition of an advertisement.  Section 9 prescribes the matters which must be dealt with in an application for the respondent’s approval of a proposed exhibition of an advertisement.  Section 10 sets out various criteria to guide the local government’s discretion.  Section 11 provides that an approval to exhibit the advertisement is granted for a specific term, and s 12 relevantly provides that ‘an approval may be granted on conditions the local government considers appropriate’.

[22] I have set out the terms of s 11 of LLP7 above.  It is, frankly, not clear on its face whether s 11, with which we are presently concerned, is meant to be a local law policy classifying election signs as permitted advertisements pursuant to s 5 of Local Law No. 7.  I note that in the heading to s 11, reference is made to s 5, which deals with permitted advertisements.  But, confusingly, the heading also refers to s 12, which is the provision in Local Law No. 7 dealing with the conditions which the local government may attach to an approval in relation to an advertisement for which application for approval has been made.  As noted above, Local Law No. 7 draws a clear distinction between those advertisements which are permitted by a local law policy and those for which approval is sought and obtained.  The reference to both s 5 and s 12 in the heading to s 11 of LLP7 is problematic in terms of sourcing the power pursuant to which s 11 was made.

[23] But even if I disregard that detail and look to the terms of s 11 itself, it is difficult, on its face, to read this as classification of election signs as ‘permitted advertisements’.  On its face, s 11 imposes a blanket prohibition on election signs throughout the city, and then provides for the limited number of stated exceptions.  The language of s 11 is not that which one would objectively regard as ‘permissive’.  The only way of reading this section as being a local law policy to classify election signs as permitted advertisements is by negative inference, that is to say that the numbered subparagraphs of s 11 prescribe the only election signs which are permitted advertisements within the city.  Even reading the section in that way, in an attempt to cast it as a proper exercise by the respondent of its powers under s 5 of Local Law No. 7, the highly restrictive nature of the section in terms of placement of election signs throughout the City of the Gold Coast is apparent.

[24] Thus, whether read on its face as a prohibition or, by negative inference, as the regulation of a ‘permitted advertisement’ in the manner I have just described, s 11 would make it unlawful for persons in the City of the Gold Coast to display election signs, for example, in their front yards or in street front shop windows.

[25] Counsel for the respondent sought to counter that conclusion by pointing to the strategy document exhibited to Mr Russell’s affidavit.  That document purports to regulate the display of election signs in a number of contexts, including signs at campaign offices and on existing licensed advertising signs (which are both specifically referred to in s 11).  But this strategy document goes further than the terms of s 11, purporting to regulate signs on roads, including vehicle-mounted signs, signs held by persons, signs on residential property, and signs on commercial/industrial property.  Counsel for the respondent was unable, however, to point to any other head of power pursuant to which this strategy document had force of law, let alone one which formed the basis for action taken against members of the public by the respondent’s compliance officers.

[26] In approaching the consideration of the present matter, I do not discount the concerns raised by the respondent in relation to certain aspects of public safety.  For example, it is clear that it is undesirable as a matter of public safety for the attention of drivers to be distracted by people waving election signs at them in an overly animated fashion.  The regulation of that sort of conduct however, seems to me to fall under other aspects of state or municipal law, such as traffic regulations.  Similarly, the erection of election booths within pedestrian malls within the city would seem to be a matter within the proper purview of the local authority pursuant to s 47 of Local Law No. 11 (Roads and Malls).

[27] Accordingly, I am satisfied that the applicant has established a prima facie case, sufficient for the purposes of the grant of an interlocutory injunction, that s 11 of LLP7 constitutes an unlawful restriction on the communication between electors and candidates for election.

[28] The second argument advanced on behalf of the applicant was that s 11 of LLP7 is unlawful by reason of the operation of s 854AA of the LGA.  That section provides:

854AANo jurisdiction to make local laws and subordinate local laws prohibiting placement of election signs or posters

(1)A local government has no jurisdiction to make a local law or subordinate local law prohibiting, in its area, the placement of election signs or posters for an election under this Act, the City of Brisbane Act 1924, the Electoral Act 1992 or the Commonwealth Electoral Act 1918 (Cwlth).

(2)A local law or subordinate local law, to the extent it is contrary to subsection (1), is of not effect.

(3)In this section –

Election signs or posters means signs or posters that are able, or are intended –

(a)to influence a person about voting at an election;  or

(b)to affect the result of an election.’

[29] That provision was included in the LGA by the amendments made to that Act pursuant to the Local Government and Other Legislation Amendment Act 2003 which relevantly commenced operation on 6 November 2003.  According to Mr Russell, Local Law No. 7 regulating signage ‘has been in existence since 20 February 1998’ and the ‘policy regulating election signage was gazetted on 20 May 1999’.  Both Local Law No. 7 and LLP7 were, therefore, already in existence when s 854AA came into effect.  There is no express provision which provides for s 854AA to have retrospective operation.  The presumption against statutes having retrospective operation would tend to suggest to me that the strength of this limb of the applicant’s case is somewhat more tenuous.  On the other hand, the applicant points to such aids to statutory interpretation as the relevant second reading speech, which the applicant says supports the submission that s 854AA is intended to operate not merely on future local laws but also on existing local laws.  In light of the view I have taken of the applicant’s principal argument, however, it is unnecessary for me to express any further view on this aspect.

[30] Having formed the view that the applicant had satisfied me as to the threshold test of there being a prima facie case sufficient to warrant the grant of an interlocutory injunction, the further inquiry was as to the balance of convenience.  Given the imminence of the elections to which these issues relate, and in the absence of any evidence or assertion of prejudice on the part of the local authority should the injunction be granted, it was clear to me that the balance of convenience favoured the applicant in this case.

[31] Finally, I should make clear, as I did to counsel for the parties when making the orders, that the interlocutory injunction I have granted is limited only to s 11 of LLP7, and that nothing that I have said or ordered should in any way be construed as imposing any limitation on actions which the respondent might otherwise lawfully be entitled to take under any of its local laws or local law policies other than that specifically mentioned in the order.

Footnotes

[1] ABC v O’Neill (2006) 227 CLR 27.

[2] (1997) 189 CLR 520.

[3] At 560.

[4] (1999) 13 ALJR 1086 at [28].

[5] (1992) 177 CLR 106 at paras 46-48.

[6] At [48].

[7] Local Law No. 7, s 2.

[8] Section 3.

Close

Editorial Notes

  • Published Case Name:

    Greene v Gold Coast City Council

  • Shortened Case Name:

    Greene v Gold Coast City Council

  • MNC:

    [2008] QSC 25

  • Court:

    QSC

  • Judge(s):

    Daubney J

  • Date:

    25 Feb 2008

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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