Hemelaar v Brisbane City Council

This was an application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act by an applicant who had been found to have breached the Public Land and Council Assets Local Law when acting as a street preacher in the Queen Street Mall. Interestingly, the issue was whether the Peaceful Assembly Act 1992 provided legal immunity to the appellant for any breach of the Local Law. Their Honours held that the provisions of the Local Law did not amount to an unnecessary or unreasonable restriction on the right to assemble and therefore dismissed the appeal.

Morrison JA and Boddice and Flanagan JJ

17 October 2017

This was an application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 by an applicant who had been found to have breached the Public Land and Council Assets Local Law 2014 (the Local Law) on eight separate occasions [2] whilst acting as a street preacher in the Queen Street Mall. In considering the merit of the proposed appeal the court specifically addressed two matters:

1. whether leave to appeal was warranted to correct a substantial injustice to the applicant and whether there was a reasonable argument that there was an error to be corrected in the District Court decision to dismiss the applicant’s appeal from his convictions; and 
2. whether the Peaceful Assembly Act 1992 (the Act) provided legal immunity to him for any breach of the Local Law. [4], [5].

The activities the subject of the charges

The applicant belonged to an organisation which undertook activities conducted with a view to teaching the message of the bible to the general public, via such means as addresses and the distribution of literature, signs and banners. [6]. The applicant provided notices of his intention to hold a public assembly in the Queen Street Mall to both the Queensland Police Service and the respondent. He indicated that his intention 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 resource tables, a sketch board and easel, and signs and banners”. He specified that he wished to use an amplifying device as part of those activities. [7].

Whilst not opposing the applicant’s proposals to hold a public assembly, the respondent advised that he needed to make an application and pay a fee to use an amplifier and other materials. The applicant did not comply with that instruction. [8].

The applicant committed the eight breaches of the Local Law whilst undertaking an assembly in accordance with the notices. [9].

The competing arguments

The applicant submitted that the primary judge made a clear error of law in holding that an authorised public assembly was subject to the constraints contained in s 5(4) of the Act, and that error had resulted in his conviction. [30]. It was further argued that when properly interpreted the Act provides that once the required notices are given, rendering the assembly an authorised public assembly, it is not possible to place any additional restriction on the conduct of that authorised public assembly provided it is peaceful and in accordance with the conditions prescribed in the notice. To the extent that the Local Law conflicts with the correct interpretation of the Act, the Act overrides it. [31].

By contrast the respondent’s position was that as no substantial injustice had been demonstrated, leave to appeal had to be refused.  [32]. In that regard, the respondent observed that s 5 of the Act embodies an individual’s right to assemble (provided it is peaceful), whilst s 5(4) excepts assemblies in pedestrian malls, which may properly be the subject of regulation. In relation to the Queen Street Mall, the provisions of the Local Law apply. [33]. The respondent submitted that the provision of notice does not modify the operation of s 5(4) of the Act. [34].

The proper construction of the applicable legislation

The court held that there is no inconsistency between the operation of s 5(4) of the Act and an authorised public assembly in a pedestrian mall.  The court observed that plainly an authorised public assembly held in such a setting must still comply with the requirements of the relevant local authority, provided they do not unnecessarily and/or unreasonably restrict the person’s right to assemble peacefully with others. [41]. The court held that the provisions of the Local Law did not amount to unnecessary or unreasonable restrictions on the right to assemble. [42]. It was ultimately held that notice of an intention to use amplifying equipment and to distribute written material alone does not suffice – a holder of an authorised public assembly is also obliged to apply to the relevant local authority for authorisation under the Local Law. The court noted:

“Such a requirement is consistent with the express terms of s 5(4) of the Act, which operates in respect of an authorised public assembly held in accordance with the notice given under the Act”. [50].

In those circumstances, in the absence of any error in the respective decisions made below, the appeal was dismissed. [53].

A de Jersey