PARTIES: GARY MEYERHOFF
v
DARWIN CITY COUNCIL
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: JA 92/04 (20325359)
DELIVERED: 6 April 2005
HEARING DATES: 5 April 2005
JUDGMENT OF: SOUTHWOOD J
CATCHWORDS:
JUSTICES APPEAL – APPEAL AGAINST CONVICTION
Affixing handbills to traffic signs; no permit; Darwin City Council By-laws; breach of By-law 97; Australian Constitution; implied freedom of communication about government and political matters.
Coleman v Power (2004) 78 ALJR 1166; Coleman v Sellars (2000) 181
ALR 120; Cunliffe v Commonwealth (1994) 183 CLR 272; Kruger v
Commonwealth (1997) 190 CLR 1; Lange v Australian Broadcasting
Corporation [1997] 189 CLR 520; Levy v Victoria [1997] 189 CLR 579;
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
REPRESENTATION:
Counsel:
Appellant: Gary Meyerhoff (litigant in person)
Respondent: Mr J P Tompkins
Solicitors:
Appellant: litigant in person
Respondent: Cridlands
Judgment category classification: A
Judgment ID Number: Sou0502
Number of pages: 12
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gary Meyerhoff v Darwin City Council [2005] NTSC 19
No JA 92/04 (20325359)
BETWEEN:
GARY MEYERHOFF
Appellant
AND:
DARWIN CITY COUNCIL
Respondent
CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 6 April 2005)
Introduction
[1] The Appellant appeals against his conviction in the Court of
Summary Jurisdiction. The appeal was commenced by a Notice of Appeal
dated 26 November 2004.
[2] On 28 October 2004 the appellant was
convicted of an offence that contrary to Darwin City By-law 97(1)(b) on
26 August 2003 at the intersection of the Stuart Highway and Goyder
Road in Darwin he affixed or caused to be affixed a handbill to a
fixture in a street without having a permit to do so.
[3] After he convicted the Appellant, the Magistrate ordered that the
Appellant was to be released upon the Appellant giving security in the
sum of $600.00 and promising to comply with the following conditions:
(1) to be of good behaviour for a period of 12 months; and, (2) to
appear before the Court of Summary Jurisdiction if called upon to do so
during the period of the order.
The issue
[4] The only ground of appeal pleaded in the Notice of Appeal is that
the learned Magistrate erred in finding that the relevant Darwin City
Council By-law did not breach the implied right of free speech and
political communication contained in the Australian Constitution.
[5] The issue for determination by the Supreme Court is whether the
relevant Darwin City By-law is invalid because it is repugnant to the
freedom of communication about government and political matters implied
in the Australian Constitution.
The By-laws
[6] The relevant Darwin City By-laws are By-laws 97, 3, 13, 14, 15 and
20. By-law 97 provides as follows:
“97. Handbills
(1) It is an offence committed by a person for that person, without a
permit, in or on a public place –
(a) to give out or distribute a handbill; or
(b) to affix or cause to be affixed a handbill to a power pole,
signpost or fixture in a street.
(2) It is a condition of a permit to affix a handbill that the holder
shall –
(a) ensure that the handbill is preserved in a clean and tidy
condition;
(b) remove the handbill if it becomes worn, torn or detached; and
(c) remove any waste or litter from the area.
(3) It is an offence committed by a person for that person, without a
permit and the consent of the owner or occupier of land adjoining a
public place, to affix or cause to be affixed a handbill to or against
a structure on the land.
(4) Where an authorised person is of the opinion that a handbill is
dirty, untidy, worn, torn or detached, the authorised person may,
whether or not a permit has been granted or the consent of the owner or
occupier of the land obtained in relation to affixing the handbill,
give notice in accordance with by-law 10 to –
(a) the owner or occupier of the building where the handbill is posted;
or
(b) the person responsible for authorising the production of the
handbill,
requiring remedial action or the removal of the handbill.”
[7] A handbill includes a poster, placard, notice, ticket, pamphlet and
advertisement (By-law 3).
[8] Darwin Council By-law 14 provides as follows:
“14. Applications for licences, &c.
(1) A person may apply to the clerk for the issue of a licence required
under these By-laws.
(2) An application shall be –
(a) in accordance with the approved form;
(b) accompanied by the appropriate fee; and
(c) accompanied by any documents, specifications or particulars that
the council may require.”
[9] “Licence” includes permit, authority and registration (By-law
13). The Council may grant or refuse to grant a licence (By-law 15(1))
and the licence maybe subject to such conditions as the Council thinks
fit (by-law 15(4)).
[10] A person who contravenes or fails to
comply with a By-law is guilty of an offence and is liable on
conviction to a penalty not exceeding $3000.00 and in addition, to a
penalty not exceeding $100.00 for each day during which the penalty
continues (By-law 20).
[11] The approved form for making an application for a permit to affix
a handbill to a fixture in a street requires the applicant to give his
name and address and to advise the Darwin City Council of the occasion
for the affixing of the handbills to fixtures and the date of the
event. It also requires an example of each type of handbill to be
submitted to the Darwin City Council. The Director of Community
Services has been authorised to waive the appropriate fee and fees are
normally waived. Rather than requiring the payment of an appropriate
fee the Darwin City Council usually imposes a condition on the permit
holder to the effect that if handbills are not removed within 48 hours
of the completion of the notified event then the handbill may be
removed by the Council and the costs of doing so recovered from the
person described as the principal in the application for the permit.
[12] Mr Tompkins of counsel who appeared for the Darwin City Council
stated that the Council did not receive a lot of applications for
permits to affix handbills to fixtures in public streets and he agreed
with Mr Meyerhoff that Mr Meyerhoff may be the first person to be
prosecuted for a breach of By-law 97 of the Darwin City Council By-laws
1994.
Facts
[13] The Appellant is a spokesperson for a group of people who call
themselves the Network against Prohibition. The group is made up of
approximately 12 core members and approximately 100 to 200 supporters.
It was formed in Darwin in 2002 after the enactment of Division 1A of
the Misuse of Drugs Act. Division 1A of the Act enables certain
residential premises to be declared drug premises.
[14] The objectives of Network against Prohibition are to achieve drug
law reform and to have the use of prohibited drugs legalised. The group
is comprised of activists who engage in political dissent to this end.
[15] The regulation of drug use and the prohibition of the use of
illicit drugs is an important and sometimes controversial issue for the
Northern Territory Government. It is a matter about which there has
been significant debate in the community.
[16] At about 1.00am on 26 August 2003 the Appellant and another man
were observed by two police officers to be bent over a “keep left”
traffic sign that is situated at the intersection of the Stuart Highway
and Goyder Road, Darwin. The two men were seen as police drove by
inbound on the Stuart Highway. One of the police officers saw the two
men rubbing the back of the traffic sign with their hands. The police
officers drove past, executed a u-turn and returned to where the
Appellant was to be found. One of the police officers then spoke to the
Appellant and the other man who was still in the vicinity of the sign.
The Appellant was observed by one police officer to be holding a bucket
which contained home made glue. The other gentleman was holding a
plastic bag containing leaflets. The leaflets were of two different
sizes and two different types. The two different sizes were A4 and A3.
All but two leaflets had writing on them:
“Make tracks to the Second Darwin Syringe Festival and International
Conference on Direct Action. It’s a hit. End the war on Drugs 21 to 28
September www.napnt.org. PH – 0415162525”
[17] The Darwin Syringe Festival is an annual festival that is held in
Darwin. Mr Meyerhoff told the Court that the festival promotes the safe
use of drugs; provides an opportunity for those who attend the festival
to consider the health issues confronting drug users; provides an
opportunity to hold training sessions for general medical practitioners
who consult patients with drug problems; and creates an event which can
be used to advocate drug law reform.
[18] At the time the leaflet was affixed to the sign the Appellant did
not hold a permit issued by a clerk of the Darwin City Council to affix
or cause to be affixed a handbill to a fixture in a street.
[19] The leaflet described constituted a notice or advertisement
specifying a web address and a mobile phone number from which
information could be sought pertaining to the Second Darwin Syringe
Festival and International Conference on Direct Action which was to be
held in Darwin from 21 to 28 September 2003.
The implied freedom of communication
[20] The By-laws do burden freedom of communication about a government
or political matter. However, a mere restriction of the freedom of
communication is not sufficient to invalidate the By-laws.
[21] In Lange v Australian Broadcasting Corporation [1997] 189 CLR 520
at 566 to 568 the High Court stated that:
“Since McGinty it has been clear, if it was not clear before, that the
Constitution gives effect to the institution of "representative
government" only to the extent that the text and structure of the
Constitution establish it. In other words, to say that the Constitution
gives effect to representative government is a shorthand way of saying
that the Constitution provides for that form of representative
government which is to be found in the relevant sections. Under the
Constitution, the relevant question is not, "What is required by
representative and responsible government?" It is, "What do the terms
and structure of the Constitution prohibit, authorise or require?"
Moreover, although it is true that the requirement of freedom of
communication is a consequence of the Constitution's system of
representative and responsible government, it is the requirement and
not a right of communication that is to be found in the Constitution.
Unlike the First Amendment to the United States Constitution, which has
been interpreted to confer private rights, our Constitution contains no
express right of freedom of communication or expression. Within our
legal system, communications are free only to the extent that they are
left unburdened by laws that comply with the Constitution.
To the extent that the requirement of freedom of communication is an
implication drawn from ss 7, 24, 64, 128 and related sections of the
Constitution, the implication can validly extend only so far as is
necessary to give effect to these sections. Although some statements in
the earlier cases might be thought to suggest otherwise, when they are
properly understood, they should be seen as purporting to give effect
only to what is inherent in the text and structure of the Constitution.
When a law of a State or Federal Parliament or a Territory legislature
is alleged to infringe the requirement of freedom of communication
imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must
be answered before the validity of the law can be determined. First,
does the law effectively burden freedom of communication about
government or political matters either in its terms, operation or
effect? Second, if the law effectively burdens that freedom, is the law
reasonably appropriate and adapted to serve a legitimate end the
fulfilment of which is compatible with the maintenance of the
constitutionally prescribed system of representative and responsible
government and the procedure prescribed by s 128 for submitting a
proposed amendment of the Constitution to the informed decision of the
people (hereafter collectively "the system of government prescribed by
the Constitution"). If the first question is answered "yes" and the
second is answered "no", the law is invalid. (Emphasis added)
[22] The freedom of communication which is required by the
constitution is not confined to verbal communication, and may extend to
conduct where such conduct “… is a means of communicating a message
within the scope of the freedom”: Levy v Victoria [1997] 189 CLR 579 at
613 per Toohey and Gummow JJ. Laws which prohibit or regulate
communication by restricting freedom of movement or denying people the
opportunity to communicate may contravene the constitutional
requirement: Levy v Victoria at 617-618 per Gaudron J and at 622-3 per
McHugh J.
[23] The purpose, as well as the operation and effect of
a law may be taken into account in assessing whether the law curtails
freedom of communication in a manner or to an extent inconsistent with
the constitutional implication: Coleman v Sellars (2000) 181 ALR 120 at
126 per Muir J; Cunliffe v Commonwealth (1994) 183 CLR 272 at 337; Levy
v Victoria at 611 per Toohey and Gummow JJ.
[24] A law restricting conduct which may incidentally burden freedom of
political speech will not be invalid simply because it can be shown
that some more limited restriction could suffice to achieve a
legitimate purpose. This is consistent with the respective roles of the
legislature and the judiciary in a representative democracy: Coleman v
Power (2004) 78 ALJR 1166 at 1174 per Gleeson CJ; Levy v Victoria at
619 per Gaudron J; Kruger v Commonwealth (1997) 190 CLR 1 at 126-128
per Gaudron J.
[25] The freedom of communication which the constitution requires is a
freedom which is commensurate with reasonable regulation in the
interests of an ordered society: Levy v Victoria at 608 per Dawson J.
[26] The freedom of communication required by the constitution protects
political discussions in relation to all levels of government: Levy v
Victoria at 596 per Brennan CJ; Stephens v West Australian Newspapers
Ltd (1994) 182 CLR 211 at 232 per Mason CJ.
The character of By-Law 97
[27] With the above principles in mind, I now turn to consider whether
By-law 97 is reasonably appropriate and adapted to serve a legitimate
end the fulfilment of which is compatible with the constitutionally
required freedom of communication.
[28] The purpose of the By-law is clearly to regulate the affixing of
handbills to fixtures in public streets in an orderly manner so as to
maintain the amenity of the environment and the integrity of the
fixture. The mandatory conditions stipulated By-law 97(2) makes it
clear that both the maintenance of the handbill in a clean and tidy
condition and the avoidance of waste and litter are important matters.
The purpose of the By-law is also to cover to some degree the cost of
the Darwin City Council removing old handbills from such fixtures. The
By-law only incidentally burdens the freedom of communication. There is
no reason to think that the purpose of the By-law is other than
legitimate.
[29] The By-law is of general application. It applies to posters,
notices and advertisements containing all kinds of information. It is
limited in its operation to fixtures, power poles and signs in public
streets in the area regulated by the Darwin City Council. It does not
create a complete prohibition to the affixing of handbills to power
poles, sign posts or fixtures in a street. The By-law only prohibits
such conduct in circumstances where a permit has not been obtained.
There are ample alternative means of giving notice of conferences and
events.
[30] Mr Meyerhoff argues that the above factors are counteracted by the
following features of the permit system. An application for a permit
must be in writing in the prescribed form. It must be lodged with the
Council and subject to any waiver must be accompanied by the prescribed
fee which is a significant obstacle for small non-profit organisations.
An application for a permit must be “accompanied by any documents,
specifications or particulars that the council may require”. By-law 15
gives the Council an unqualified right to refuse a permit. A permit may
be subject to such conditions as the Council thinks fit. Making an old
and conservative argument (see for example F A Hayek, “The Road to
Serfdom”) he says in effect, that because there are no criteria fixed
and announced by the By-laws beforehand which make it possible to
foresee with fair certainty how the Council will exercise its
discretion, the By-laws make the relevant freedom of communication
illusory. Caprice significantly interferes with freedom.
[31] However, given the legitimate purpose of the By-laws, the limited
area subject to regulation and other available means of communication
even a By-law that absolutely prohibited the affixing of handbills to
fixtures in streets would be commensurate with reasonable regulation in
the interests of an ordered society. A law will not be invalidated
simply because it can be shown that a more limited restriction could
suffice.
[32] The By-law is appropriate and reasonably adapted to the fulfilment
of a legitimate purpose which is compatible with the maintenance of the
constitutionally prescribed system of representative and responsible
government.
[33] For these reasons the By-laws are not repugnant to the Australian
Constitution and I dismiss the appeal. I will hear the parties as to
costs.