Brisbane City Council v Carmody [2018] QMC 16

MAGISTRATES COURTS OF QUEENSLAND CITATION: Brisbane City Council v Carmody [2018] QMC 16 PARTIES: Brisbane City Council (Applicant) v Isobelle Carmody (Respondent) FILE NO/S: MAG-00090753/18(5) DIVISION: Magistrates Courts PROCEEDING: No Case Submission ORIGINATING COURT: Brisbane DELIVERED ON: 8 October 2018 DELIVERED AT: Brisbane HEARING DATE: 24 July 2018 MAGISTRATE: Her Honour Magistrate T Previtera ORDER: Submission rejected CATCHWORDS: Constitutional Matter – no case submission – s.78B Judiciary Act 1903 – public land and council assets local law 2014 – Commonwealth of Australia Constitution Act (Constitution). SOLICITORS: Mr K.B. Cartledge for the Applicant. Wallace O’Hagan Solicitors for the Respondent. COUNSEL: No appearance for the Applicant. Mr E.P. Mac Giolla Ri [1] By Complaint and Summons issued from the Magistrates Court of Queensland at Brisbane on 23 April 2018, the Defendant is charged that on the 23 December 2017, in Queen Street Mall (“the Mall”), Brisbane she failed to obtain consent from the Brisbane City Council to communicate and advertising by way of a placard, board or article of similar nature, contrary to section 68 of the Public Land and Council Assets Local Law 2014 (PLACA). Particulars provided included that the advertising was communicated by way of displaying a sign in the mall; section 17 in schedule 1 of the Public Land and Council Assets Local Law 2014 required that the Defendant obtain the consent of the Brisbane City Council for the activity, the Defendant did not obtain consent to communicate the advertising and therefore was in breach of section 68 of the Public Land and Council Assets Local Law 2014. -- 1 of 7 -- 2 [2] The matter came before this Court on 24 July 2018 when a formal plea of not guilty was entered on behalf of the Defendant. All of the Prosecution evidence was by way of admissions and tendering of documents which included:- 1. Two photographs1 depicting Ms Carmody in the Queen Street Mall on 23 December 2017 at 7:41pm. 2. A photograph of the sign that Ms Carmody was holding in the Queen Street Mall. 3. Certification and copy of the Public Land and Council Assets Local Law 20142. 4. Macquarie Dictionary 7th edition definition of “advertise”3 and “matter”: and Black’s Law Dictionary of “advertisement”. 5. Australian Oxford Dictionary definition of “advertising”4. [3] At the outset it was conceded that the Defendant did not have the consent of Brisbane City Council for any relevant activity. [4] Section 68 of PLACA provides:- “68 Failure to obtain consent A person must not fail to obtain the consent required by this local law. Maximum penalty – consent required under chapter 3, as set out in column 2 of table 1 of schedule 1. - Otherwise, 50 penalty units.” [5] Table 1 of schedule 1 provides that regulated activities in malls includes “distributing any written material or communicating any advertising matter by means of any placard, board, banner or article of a similar nature”. The maximum penalty as provided in column 2 for that activity is 20 penalty units. [6] Section 17 of PLACA provides:- “17 Activities in malls (1) Subject to division 2 of this part – (a) Any activity specified in column 1 of table 1 of schedule 1 (a regulated activity) requires council consent: and (b) Any activity specified in column 1 of table 2 of schedule 1 is prohibited. 1 Exhibit 1. 2 Exhibit 3. 3 Exhibit 4. 4 Exhibit 5. -- 2 of 7 -- 3 (2) Council may consent under chapter 7 to an activity not provided for in this part. (3) Council may make further provision about regulated and prohibited activities in malls by subordinate local laws.” [7] Submissions for the Defendant are:- “The defendant has no case to answer because she wasn’t communicating any advertising matters. It is conceded that it is not necessary that advertising be of a solely commercial nature but further submitted that there is a difference between the sign held by the defendant and an advertising matter. It is submitted that advertising means more than the making of any statement.” [8] The Macquarie dictionary 7th edition of “advertise” is as follows:- 1. “To give information to the public concerning; make public announcement of, by publication and periodicals, by printed posters, by broadcasting over the radio, television, etc.: to advertise or reward. … 4. Ovs. To admonish; warn. 5. To place an advertisement in a newspaper, magazine, etc.: to advertise for a house to rent… [9] The Macquarie dictionary 7th edition of advertisement includes: “n. Any device or public announcement as a printed notice in a newspaper, a commercial film on television, a neon sign etc., designed to attract public attention, bring in custom, etc.” [10] The Macquarie dictionary 7th edition definition of advertising includes: “n. 1. The act or practice of bringing anything, as one’s requirements or one’s business or products into public notice, especially by paid announcements in periodicals, on hoardings, etc., or on television…” [11] Also relied upon by the Defendant in Black’s Law Dictionary meaning of advertisement is: “notice given in a manner that is designed to attract public attention… information communicated to the public, or to an individual concerned, as by handbills, newspaper, television, billboards, radio.” [12] There is no dispute that the Defendant was carrying a billboard and this Court accepts that such billboard comprises matter as defined in the Macquarie dictionary 7th edition. In terms of the Prosecution’s definition reliance is had on the Australian Oxford Dictionary definition of “advertising” which includes: -- 3 of 7 -- 4 “n. the practice of influencing people through public media in order to promote sales of products and services or promote political or other messages.” [13] “Advertisement” as defined by the Australian Oxford Dictionary includes: “n. i A public notice or announcement especially one advertising goods or services in newspapers, on posters, or on broadcasts…” [14] This Court is satisfied that the conduct of the Defendant in holding up a placard with what can be described as a message, political or otherwise, to catch the members of the public. It references members of the public, it speaks to members of the public. It exhorts members of the public to think about its subject matter. It includes reference to responsibility of the general public. [15] The full text of the placard content is “#IAMWATCHING AS YOU SHOP FOR GIFTS FOR CHRISTMAS… SPARE A THOUGHT FOR THE INNOCENT MEN, WOMEN AND CHILDREN WHO FLED THEIR COUNTRIES FOR FEAR OF BEING GAOLED, TORTURED, KILLED. THEY CAME TO US BECAUSE AUSTRALIA SIGNED A CONVENTION PROMISING REFUGE NO MATTER HOW THEY CAME!! WE FORCE THEM TO MANNIS IS. THIS WILL BE THEIR FIFTH CHRISTMAS… I WILL STAND AGAINST WHAT OUR AUSTRALIAN GOVT. IS DOING EVEN IF I STAND ALONE” [16] This Court rejects the argument of the Defendant that some commercial aspect is required to constitute advertising. In this Court’s view that submission must be rejected by looking at the clear words of the definitions themselves. [17] By the placard the Defendant was seeking to capture the attention of the public. Request/require that they think about refugees on Mannis Island, attribute responsibility to Australians in both how the refugees came and where they have ended up and exhorting Australians to stand against actions which have resulted in -- 4 of 7 -- 5 the status of the refugees. The Court does not accept that in determining the or interpreting the Defendant’s actions in this way that the Court has gone beyond the ordinary meaning of the term of advertising. Defence does not deny that the message of the Defendant is “a political message of a kind”5. The Court does not accept the submission that the placard is not by way of public media, it clearly is. Contrary to what is suggested by the defence, the Brisbane City Council is not attempting to restrict freedom of speech. It is simply regulating what activities are able to be conducted in the mall and by which means those activities will occur including with the consent of the Brisbane City Council. [18] This Court does not consider the relevant PLACA decisions to be in any way ambiguous. The decision of Project Blue Sky Inc & Ors v Australian Broadcasting Authority 194 CLR 355 does not, by stipulating that a Court construing a statutory provision must strive to give meaning to every word of the provision result in the relevant provisions of PLACA being ambiguous or this Court looking further than matters already referred to in giving meaning to the provisions. [19] The Court accepts the submissions of the Applicant that communicating any advertising matter includes communicating a form of message or information of the kind written on the placard held by the Defendant. The objects of PLACA are clear. They are set out in section 2 which provides: “2 Objects The objects of this local law are to – (a) provide for the management and regulation of activities in or on – (i) council parks, open spaces, bushland and conservation areas; and (ii) malls in the City; and (iii) roads; and (iv) other council assets; to optimise the benefit derived by the public from that land; and (b) protect council assets; and (c) provide for council consent to be required for certain activities; and (d) provide a procedure for the removal or confiscation of articles or vehicles situated on council assets contrary to this or another law, and the storage, return or disposal of those articles or vehicles.” [20] The exceptions or restrictions to which the local law does not apply I found in section 4(2) of the Brisbane City Council PLACA but do not include the activity undertaken by the Defendant in this case. There is no mention therein of freedom of speech. 5 Mr Mac Giolla Ri line 1 page 8 of the transcript. -- 5 of 7 -- 6 Chapter 3 of PLACA makes it clear that managing and regulating activities in malls would require council consent in relation to certain activities. To find otherwise would be to allow persons to communicate political and other messages (except in so far as they had a commercial aspect) throughout the mall without restriction. That is clearly not the intention of the legislature. There is no requirement that someone in the Defendant’s position obstruct anyone in order to be found to offend against the Act. She has been charged with failing to obtain consent. [21] The Defendant was not engaged in the conversation. [22] In the decision of Hemelaar v Brisbane City Council6 the Court discussed PLACA and in particular chapter 3, sections 15, 16 and 17 as well as chapter 5 (restrictions and conditions on the use of council assets); chapter 7 (council’s consent). [23] In discussing whether the Peaceful Assembly Act 1992 (Qld) provided legal immunity to Mr Hemelaar for breaches of the PLACA, the Court stated the provisions of PLACA do not constitute unnecessary or unreasonable restrictions on that right. “Chapter 3” of the local law regulate the activities within pedestrian malls which of their very nature contain large number of persons seeking to enjoy their natural environment and/or carry out their business. Section 15 of the local law expressly acknowledges that purpose in the management and regulation of pedestrian malls. Against that background, requirements for permission first be obtained for specified regulated activities, including the distribution of written material and the operation of amplifying equipment, unnecessary and reasonable requirements. The distribution of material in the use of such equipment directly impacts on the ability of users of the mall to enjoy its natural environment and its businesses. If the holders of that public assembly wish to distribute written material or communicate otherwise7 including by use of an amplifying device they must make application to the local authority… That requirement is not inconsistent with the requirements of the Act. 6 [2017] QCA 241. 7 The Court’s underlining -- 6 of 7 -- 7 78B Notice to Attorneys-General (1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. (2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending: (a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit; (b) may direct a party to give notice in accordance with that subsection; and (c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. (3) For the purposes of subsection (1), a notice in respect of a cause: (a) shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and (b) is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause. (4) The Attorney-General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section. (5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so. -- 7 of 7 --