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  4. Hemelaar v Brisbane City Council - [2017] QDC 17

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Hemelaar v Brisbane City Council[2017] QDC 17

Hemelaar v Brisbane City Council[2017] QDC 17

DISTRICT COURT OF QUEENSLAND

CITATION:

Hemelaar v Brisbane City Council [2017] QDC 17

PARTIES:

RYAN NICHOLAS HEMELAAR

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

3922 of 2016

DIVISION:

Criminal

PROCEEDING:

Appeal under s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

7 February 2017

DELIVERED AT:

District Court of Queensland, Brisbane

HEARING DATE:

30 January 2017

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL – where the appellant was found guilty of eight breaches of the Public Land and Council Assets Local Law 2014 (Qld) – where the magistrate found the activities of the appellant did not constitute an assembly under the Peaceful Assembly Act 1992 (Qld) – whether the activities of the appellant constituted an assembly under the Peaceful Assembly Act 1992 (Qld) – whether the activities of the appellant were lawful – whether the Peaceful Assembly Act 1992 (Qld) prevailed over the Public Land and Council Assets Local Law 2014 (Qld)

Acts Interpretation Act 1954 (Qld)

City of Brisbane Act 2010 (Qld)

Justices Act 1886 (Qld)

Peaceful Assembly Act 1992 (Qld)

Public Land and Council Assets Local Law 2014 (Qld)

COUNSEL:

SC Fisher for the appellant

MJ Byrne QC for the respondent

SOLICITORS:

The Brisbane City Legal Practice for the respondent

Introduction

  1. [1]
    This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld) (“JA”).
  1. [2]
    On 20 September 2016 in the Magistrates Court at Brisbane, the defendant was found guilty of eight breaches of the Public Land and Council Assets Local Law 2014 (Qld) (“the Local Law”).
  1. [3]
    Particulars of the offences are that the defendant advertised in the Queen Street Mall without the consent of the respondent contrary to s 68, that he failed to comply with an oral direction of an authorised officer of the respondent to remove an advertising sign contrary to s 72(1), that he used an amplifying device without the consent of the respondent contrary to s 72(4), that he distributed written material without obtaining the consent of the respondent, contrary to s 68 and that he failed to comply with two compliance notices issued by the respondent contrary to s 72(4).[1]
  1. [4]
    The offences all occurred in late 2015 and early 2016. On each occasion they were committed after the appellant, on behalf of an organisation known as Operation 513, gave the respondent a Notice of Intention to Hold a Public Assembly pursuant to the Peaceful Assembly Act 1992 (Qld) (“PAA”).[2]The purpose of the assembly stated in each of the notices was:

“To make known to as many people as possible, both verbally and in writing, the message of the Bible. This may include, but is not limited to: public addresses, literature distribution, free Bibles and resources tables, a sketchboard and easel, and signs and banners.”[3]

  1. [5]
    It was in the course of carrying out the activities contemplated by the relevant notice that the appellant committed the offences that are the subject of this appeal.
  1. [6]
    The defendant was fined $3,000 and ordered to pay the respondent’s costs in the sum of $1,500.
  1. [7]
    At the commencement of the appeal, the appellant abandoned his appeal against the penalty imposed and the costs order.[4]

The decision below

  1. [8]
    The learned magistrate found that the activities of the appellant did not fulfil the purpose for which the PAA was enacted. She stated:

“This Court accepts the complainant’s submission that ‘assembly’ for the purpose of the PAA is not just a gathering of people for any purpose or even for a particular purpose. It is intended that it be a common purpose of protest, demonstration or argument. The activities of the defendant are a promotional activity involving engaging people in discussion about religious beliefs and preaching using amplification devices.”[5]

  1. [9]
    The learned magistrate further held that the respondent retained the power to regulate activities in the Queen Street Mall pursuant to s 5(4) of the PAA.[6]She found that:

“The machinery for obtaining consent and complying with oral directions and compliance notices under [the Local Law] is not inconsistent with the [PAA]. [The Local Law] is valid and of legal effect. [The Local Law] does not seek to prohibit a person’s right of peaceful assembly. It simply seeks to regulate activity in the Queen Street Mall and other places. There is therefore no inconsistency between [The Local Law] and [the PAA].”[7]

The issues for determination

  1. [10]
    The parties agree that the issue for determination in this appeal is essentially whether the PAA prevails over the Local Law. If it does, the appellant’s activities in the Queen Street Mall were lawful. If it does not, they were unlawful.[8]The determination of the key issue requires the consideration of two arguments. The first argument, raised by the respondent, asserts that the PAA did not apply to each of the gatherings, giving rise to the charges, as they were not an “assembly” for the purposes of the PAA. The second argument is raised by the appellant. He asserts that as a consequence of the activities of the appellant, occurring in each instance after the giving of a Notice of Intention to Hold a Public Assembly, the activities on each occasion became an authorised public assembly pursuant to s 7 of the PAA and therefore not subject to the provisions of the Local Law.

Relevant statutory provisions

  1. [11]
    The Local Law is made under the City of Brisbane Act 2010 (Qld). Its objects are to, inter alia, provide for the management and regulation of activities in the Queen Street Mall.[9]The precise provisions giving rise to the offences, the subject of this appeal, are not of themselves contentious and there is no need to recite them in detail.
  1. [12]
    The determination of this appeal turns rather on the construction of the PAA in the context of certain provisions of the Acts Interpretation Act 1954 (Qld) (“AIA”).
  1. [13]
    The objects of the PAA are set out in s 2. It is in the following terms:

“2  Objects

  1. (1)
    The objects of this Act are—
  1. (a)
    to recognise the right of peaceful assembly; and
  1. (b)
    to ensure, so far as it is appropriate to do so, that persons may exercise the right to participate in public assemblies; and
  1. (c)
    to ensure that the exercise of the right to participate in public assemblies is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of—
  1. (i)
    public safety; or
  1. (ii)
    public order; or
  1. (iii)
    the protection of the rights and freedoms of other persons; and
  1. (d)
    to ensure that the right of persons to participate in public assemblies may be exercised without payment of a fee, charge or other amount for a licence, permit or other authorisation.
  1. (2)
    In subsection (1)(c)(iii), a reference to the rights of persons includes a reference to—
  1. (a)
    the rights of members of the public to enjoy the natural environment; and
  1. (b)
    the rights of persons to carry on business.”
  1. [14]
    Section 3 is in the following terms:

“3  Relationship with other laws

  1. (1)
    This Act has effect despite any other law relating to—
  1. (a)
    the right of peaceful assembly; or
  1. (b)
    the movement of traffic or pedestrians; or
  1. (c)
    loitering; or
  1. (d)
    the use or obstruction of a public place; or
  1. (e)
    the payment of a fee, charge or other amount for a licence, permit or other authorisation relating to a public assembly.
  1. (2)
    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. (a)
    to request a trespasser to leave the land; and
  1. (b)
    if the trespasser refuses to leave on being requested—to remove the trespasser from the land.
  1. (3)
    In this section—

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

  1. [15]
    Certain definitions are set out in s 4. Relevantly:

“4  Definitions

In this Act—

…

assembly notice means a notice of intention to hold a public assembly mentioned in section 7;

…

place of assembly, in relation to an assembly that is a procession, includes a place at or through which it is proposed the assembly will stop or pass;

…

public assembly means an assembly held in a public place, whether or not the assembly is at a particular place or moving;

public place includes—

  1. (a)
    a road; and
  1. (b)
    a place open to or used by the public as of right; and
  1. (c)
    a place for the time being open to or used by the public, whether or not—
  1. (i)
    the place is ordinarily open to or used by the public; or
  1. (ii)
    by the express or implied consent of the owner or occupier; or
  1. (iii)
    on payment of money;

…”

  1. [16]
    It is uncontentious that the Queen Street Mall is a public place as defined in s 4.
  1. [17]
    The right of peaceful assembly is provided for in s 5. It is in the following terms:

“5  Right of peaceful assembly

  1. (1)
    A person has the right to assemble peacefully with others in a public place.
  1. (2)
    The right is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of—
  1. (a)
    public safety; or
  1. (b)
    public order; or
  1. (c)
    the protection of the rights and freedoms of other persons.
  1. (3)
    In subsection (2)(c), a reference to the rights of persons includes a reference to—
  1. (a)
    the rights of members of the public to enjoy the natural environment; and
  1. (b)
    the rights of persons to carry on business.
  1. (4)
    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).”
  1. [18]
    Section 6 provides a limited immunity for a person who participates in a public assembly in the following terms:

“6  Legal immunity for participant in public assembly

  1. (1)
    If a public assembly—
  1. (a)
    is an authorised public assembly; and
  1. (b)
    is peaceful; and
  1. (c)
    is held substantially in accordance with—
  1. (i)
    the relevant particulars; and
  1. (ii)
    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. (2)
    In this section—

relevant condition means a condition specified in relation to the assembly in—

  1. (a)
    a notice under section 10(2)(a) or (b); or
  1. (b)
    an order of a Magistrates Court under section 12 or 14;

relevant particulars means the particulars given in the assembly notice for the assembly (except so far as any of the particulars are inconsistent with a relevant condition).”

  1. [19]
    Section 8 provides for the giving of an assembly notice, relevantly it states:

“8  Giving of assembly notice

  1. (1)
    An assembly notice is to be given—
  1. (a)
    to the Commissioner; and
  1. (b)
    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. [20]
    The requirements for an assembly notice are set out in s 9. It is uncontentious that the respondent complied with s 9 on each occasion relevant to this appeal.
  1. [21]
    Section 10 provides for the approval of a public assembly. Relevantly it states:

“10  Approval of public assembly

  1. (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. (a)
    the required notice of permission for the assembly has been given to the organiser of the assembly; or
  1. (b)
    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. (c)
    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. [22]
    Therefore s 12 states that the recipient of an assembly notice may apply to the Magistrates Court for an order refusing to authorise the holding of the assembly.
  1. [23]
    These provisions are picked up by s 7 which provides for an authorised public assembly. It is in the following terms:

“7  Authorised public assembly

A public assembly is an authorised public assembly if—

  1. (a)
    notice of intention to hold the assembly has been given under section 8; and
  1. (b)
    the notice complies with section 9; and
  1. (c)
    the assembly is taken to have been approved under section 10.”
  1. [24]
    In construing the effect of the relevant provisions of the PAA, certain provisions of the AIA assume significance. Relevantly, s 14A states:

“14A  Interpretation best achieving Act’s purpose

  1. (1)
    In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

…”

  1. [25]
    Both parties seek to utilise extrinsic material in the interpretation of relevant provisions of the PAA. Section 14B of the AIA provides for this in the following terms:

“14B  Use of extrinsic material in interpretation

  1. (1)
    Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation—
  1. (a)
    if the provision is ambiguous or obscure—to provide an interpretation of it; or
  1. (b)
    if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or
  1. (c)
    in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.
  1. (2)
    In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to—
  1. (a)
    the desirability of a provision being interpreted as having its ordinary meaning; and
  1. (b)
    the undesirability of prolonging proceedings without compensating advantage; and
  1. (c)
    other relevant matters.
  1. (3)
    In this section—

extrinsic material means relevant material not forming part of the Act concerned, including, for example—

  1. (a)
    material set out in an official copy of the Act; and
  1. (b)
    a report of a royal commission, law reform commission, commission or committee of inquiry, or a similar body, that was laid before the Legislative Assembly before the provision concerned was enacted; and
  1. (c)
    a report of a committee of the Legislative Assembly that was made to the Legislative Assembly before the provision was enacted; and
  1. (d)
    a treaty or other international agreement that is mentioned in the Act; and
  1. (e)
    an explanatory note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given to the members of, the Legislative Assembly by the member bringing in the Bill before the provision was enacted; and
  1. (f)
    the speech made to the Legislative Assembly by the member when introducing the Bill; and

Note—

See section 53 in relation to Bills introduced before the commencement of that section.

  1. (g)
    material in an official record of proceedings in the Legislative Assembly; and
  1. (h)
    a document that is declared by an Act to be a relevant document for the purposes of this section.

ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act.”

Were the activities of the appellant an assembly?

  1. [26]
    As noted above the respondent asserts that the activities of the appellant cannot be characterised as an “assembly” pursuant to the PAA. “Assembly” is not defined in the PAA. In the Macquarie Concise Dictionary it is relevantly defined as “a company of persons gathered together, usually for the same purpose, whether religious, political, educational, or social.”[10]On each occasion the appellant engaged in the activities giving rise to the offences the subject of this appeal, he was “with other Operation 513 participants.”[11]He therefore appears to have been part of an assembly as the term is defined above. It is necessary to consider whether there is an intention in the PAA to the contrary. In finding there was such an intention in her decision below, the learned magistrate had regard to both s 14A(1) and s 14B of the AIA.[12]
  1. [27]
    Relevant extrinsic material pursuant to s 14B of the AIA to which I have had regard in determining this issue is the Report on Review of Public Assembly Law by the Electoral and Administrative Review Commission (the “EARC Report”),[13]the Report of the Parliamentary Committee for Electoral and Administrative Review (“the Committee Report”),[14]the Second Reading Speech made to the Legislative Assembly by the Attorney-General when introducing the relevant Bill, the Peaceful Assembly Bill and the contents of the official record of the proceedings in the Legislative Assembly which proceeded thereafter.[15]
  1. [28]
    In the EARC Report, it is stated:

“The origin of this review is the need for recognition of the right of the people of Queensland to express their political views freely. The purpose of this review is to examine the current laws of Queensland relating to peaceful assembly and, if appropriate, make recommendations to improve the fairness and effectiveness of those laws.

The banning of street marches in Queensland in September 1977, through an announcement by the then Premier Bjelke-Petersen, and the rigorous enforcement of that policy by the Police Commissioner led to almost two years of bitter confrontation between demonstrators and the police force. This ‘right to march’ issue led to almost 2,000 people…being arrested for various summary offences.

Suppression of political protest in Queensland is by no means a recent phenomenon…Successive governments have created and used various statutory powers to restrict freedom of expression of political ideas in the name of law and order. The right of peaceful protest and freedom of expression has not been adequately recognised in the past by governments of all political persuasions.”[16]

  1. [29]
    It was in this context that the PAA was drafted and became law. Indeed there are many references to the oppressive regime referred to above in the Second Reading Speech for the Peaceful Assembly Bill and the ensuing debate. However, nowhere is there expressed an intention to restrict the operation of the PAA to assemblies of a political nature. Indeed quite the opposite appears in the context of the discussion of handing out printed matter at public assemblies in the Committee Report where it states:

“In respect of printed matter dealing with political, religious or social issues however, the Committee has balanced the potential for litter and other nuisance against the need for freedom of expression and believes that no limitations should be placed on the distribution of such material.”[17] 

  1. [30]
    The legislature could have restricted the rights conferred by the PAA to peaceful assemblies for political purposes or restricted the right of public assembly in a similar way. It did not. Although there was a political context for the enactment of the PAA, it cannot be said that parliament intended to restrict its operation to political contexts. The extrinsic material to which I have referred confirms that the interpretation conveyed by the ordinary meaning of the word “assembly” quoted above is appropriate. Accordingly, I find that the activities of the appellant came within the definition of an assembly and therefore the PAA applied to them.

Were the activities of the appellant lawful?

  1. [31]
    The appellant argues that on each occasion giving rise to an offence the subject of this appeal, he was engaging in an authorised public assembly as defined in s 7 of the PAA and therefore not subject to the Local Law.
  1. [32]
    Whilst it is true that the respondent did not make an application seeking an order refusing the holding of a public assembly in response to any of the relevant notices issued by the appellant pursuant to the PAA,[18]the respondent nonetheless argues that the Local Law remained in effect as a consequence of s 5(4). In this regard it is to be noted that the power of the respondent to regulate the Queen Street Mall conferred by this provision is subject to the right to assemble peacefully with others in subsection (1). It is uncontroversial that the offences the subject of this appeal went beyond assembling peacefully as they related to activities set out in the notices referred to above.
  1. [33]
    There is nothing in the wording of the PAA which suggests that the right of peaceful assembly, the subject of s 5, is supplanted by the rights conferred by an authorised public assembly pursuant to s 7. What is clear is that the immunity conferred by s 6 is limited only to civil or criminal liability because of the obstruction of a public place.
  1. [34]
    In answering this question, the extrinsic material referred to above is again relevant and given the absence of clarity as to the intended interaction between s 5 and s 7, it is appropriate to refer to it in this context. In the Second Reading Speech, the Attorney-General noted:

“The objective of the legislation is to confer several basic rights on the   citizens of the State. They are –

the right of peaceful assembly;

the right to participate in public assemblies; and

to ensure the right to participate in public assemblies is only subject to such restrictions as are necessary and reasonable in a democratic society in the interest of public safety, public order, the protection of the rights and freedoms of other persons.”[19]

Thereafter he stated:

“Peaceful assemblies may be authorised or unauthorised. Unauthorised assemblies must conform to traffic laws and relevant by-laws and regulations.”[20]

  1. [35]
    It is clear from the passages quoted above that an authorised public assembly is intended to merely be a particular type of peaceful assembly. I can discern no intention in either the wording of the PAA or the Second Reading Speech that the rights and obligations pursuant to s 5 are to be supplanted by an authorised public assembly pursuant to s 7. Rather the intended consequence is the limited immunity conferred by s 6. In the course of the parliamentary debate which followed the introduction of the Peaceful Assembly Bill concerns were raised about the holding of public assemblies in the Queen Street Mall.[21]The Attorney-General specifically stated that what is now s 5(4) of the PAA “explicitly saves the power of local councils to make by-laws in particular areas.”[22]In the circumstances, there is a clear legislative intent that s 5(4) makes the Local Law applicable despite the other provisions of the PAA which allow for authorised public assemblies. Accordingly an authorised public assembly pursuant to s 7 is subject to the Local Law as a consequence of s 5(4).

Conclusion

  1. [36]
    The Local Law applied. By contravening the Local Law the appellant committed the offences the subject of the appeal. The appeal is dismissed.

Footnotes

[1]Notice of Appeal filed 28 September 2016.

[2]Exhibit 1, [1-8].

[3]Exhibit 1, [9]; Exhibit 2.

[4]T1-3, ll 20-30.

[5]RJ, [22].

[6]Ibid, [26].

[7]Ibid, [30].

[8]T1-2, ll 20-45.

[9]Peaceful Assembly Act 1992 (Qld) s 2.

[10]Macquarie, Macquarie Concise Dictionary, (University of Sydney, 4th ed, 2006).

[11]Exhibit 1.

[12]R.J, [18].

[13]Electoral and Administrative Review Commission, Parliament of Queensland, Report on Review of Public Assembly Law (1991).

[14]Parliamentary Committee for Electoral and Administrative Review, Parliament of Queensland, Public Assembly Law, (1991).

[15]Queensland, Parliamentary Debates, Legislative Assembly, 21 May 1992, 5545-5547; Queensland, Parliamentary Debates, Legislative Assembly, 17 June 1992, 5799-5831.

[16]Above n 13, 4 [2.1-2.3].

[17]Above n 14, 8 [3.2.9].

[18]Peaceful Assembly Act 1992 (Qld) s 12.

[19]Queensland, Parliamentary Debates, Legislative Assembly, 21 May 1992, 5546.

[20]Ibid.

[21]Queensland, Parliamentary Debates, Legislative Assembly, 17 June 1992, 5823.

[22]Ibid.

Close

Editorial Notes

  • Published Case Name:

    Ryan Nicholas Hemelaar v Brisbane City Council

  • Shortened Case Name:

    Hemelaar v Brisbane City Council

  • MNC:

    [2017] QDC 17

  • Court:

    QDC

  • Judge(s):

    Everson DCJ

  • Date:

    07 Feb 2017

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMagistrates Court of Queensland (No Citation).20 Sep 2016Mr Hemelaar convicted of offences pursuant to Public Land and Council Assets Local Law 2014 (Qld).
Primary Judgment[2017] QDC 1707 Feb 2017Appeal pursuant to s 222 Justices Act 1886 (Qld) dismissed: Everson DCJ.
Appeal Determined (QCA)[2017] QCA 241 [2018] 2 Qd R 52617 Oct 2017Appeal dismissed: Morrison JA and Boddice and Flanagan JJ.
Application for Special Leave (HCA)File Number: B66/1710 Nov 2017-
Special Leave Refused (HCA)[2018] HCASL 107 Feb 2018Nettle and Gordon JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Hemelaar & Red v Walsh, Gough & State of Queensland [2017] QDC 1511 citation
Hemelaar v Brisbane City Council[2018] 2 Qd R 526; [2017] QCA 2411 citation
1

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