Findlater v Law [2011] QMC 45

MAGISTRATES COURTS OF QUEENSLAND CITATION: Findlater v Law [2011] QMC 45 PARTIES: EWAN GORDON FINDLATER (applicant) v BRYAN JOSEPH LAW (respondent) FILE NO/S: M186/11 DIVISION: Magistrates Courts PROCEEDING: Application under Peaceful Assembly Act 1992 ORIGINATING COURT: Magistrates Court at Rockhampton DELIVERED ON: 30 June 2011 DELIVERED AT: Rockhampton HEARING DATE: 30 June 2011 MAGISTRATE: Morrow MT ORDER: Application struck out CATCHWORDS: PUBLIC MEETINGS AND ASSEMBLIES – PRACTICE AND PROCEDURE - prohibition of public assembly – exercise of democratic rights - application to refuse an authorisation of holding of a proposed assembly - application to revoke an approval already given - standing – who may bring an application Acts Interpretation Act 1954, s 27A, s 33 Peaceful Assembly Act 1992, s 2, s 4, s 6, s 8, s 9, s 10, s 12, s 13, s 14, s 16, s 17 Police Service Administration Act 1990, s 4.10 Transport Operations (Road Use Management) Act 1995, s 5, Schedule 4 COUNSEL: R Shapcott (sergeant) for applicant Respondent on own behalf SOLICITORS: Queensland Police Service for applicant Respondent on own behalf [1] I have an originating application made ostensibly under the Peaceful Assembly Act 1992, which I'll refer to as the Act, by Ewan Gordon Findlater, Superintendent of Traffic, Rockhampton Police District, seeking orders by the Court against Bryan -- 1 of 11 -- Joseph Law, to refuse an authorisation of holding of a proposed assembly, and secondly, to revoke the approval already given. [2] The application does not indicate what section of the Act permits such applications to be made to this Court. [3] In relation to this particular matter, I'll deal with the issue of standing first. Standing [4] Interestingly the application is made by Ewan Gordon Findlater and his statement that he has provided as part of the material, is that he is the Superintendent of Traffic for the Rockhampton Police District. [5] For the moment, I presume the application is made under section 12 of the Act to this Court for an order refusing to authorise the holding of the assembly. The section indicates the Commissioner may apply. [6] In section 4 of the definition section of the Act, Commissioner means the Commissioner of the Police Service within the meaning of the Police Service Administration Act 1990. [7] By virtue of section 17 of the Act the Commissioner may delegate the Commissioner’s powers under the Act to a Superintendent of Traffic within the meaning of the Transport Operations (Road Use Management) Act 1995 (TORUM). [8] That is really interesting because section 5 of TORUM provides: 5 Definitions--the dictionary (1) A dictionary in schedule 4 defines particular words used in this Act. (2) Definitions found elsewhere in the Act are signposted in the dictionary. [9] If one goes to schedule 4 the definitions of "Superintendent of Traffic" means, the Chief Executive or Commissioner and Commissioner is defined to mean the Commissioner of the Police Service. [10] Out of an abundance of caution, it is, I think, proper to determine who is the Chief Executive. The Chief Executive is defined in the Acts Interpretation Act 1954, section 33, subsection 10. "In an Act, a reference to a Chief Executive is a reference to a Chief Executive of a public service unit." [11] Subsection 11 provides: In a provision of an Act, a reference to the chief executive without specifying a particular public sector unit by name is a reference to the chief executive of— (a) if, for the time being, different Ministers administer the provision in relation to different matters—the public sector unit that— (i) deals with the relevant matter; and (ii) is administered by the Minister or Ministers administering the -- 2 of 11 -- provision in relation to the matter; or (b) in any other case—the public sector unit that— (i) deals with the matters to which the provision relates; and (ii) is administered by the Minister or Ministers for the time being administering the provision. [12] The Premier of Queensland has sole responsibility for determining ministerial portfolios which are made by Order in Council (Section 44 of the Constitution of Queensland 2001). Administrative Arrangements Orders set out the principal responsibilities of Government Ministers and their portfolios. [13] The latest Administrative Arrangements Order (No. 2) 2011 was made by the Governor in Council on 22 June 2011 and was published in the Government Gazette on 22 June 2011. [14] At the present time the Minister for Transport and Multicultural Affairs, administers the Transport Operations (Road Use Management) Act 1995 and the administering unit is the Department of Transport and Main Roads with the Chief Executive being the Director-General of that department. [15] That said, the literal interpretation of the Act is that the Commissioner can delegate to the Chief Executive of the Department of Transport and Main Roads, as ―Superintendent of Traffic‖, the Commissioner's powers under the Act. [16] Ewan Findlater is not the Commissioner of Police, or the Chief Executive of the Department of Transport and Main Roads, but a Senior Sergeant within the Queensland Police Service. [17] It could be argued that Findlater has a delegation from the Commissioner, pursuant to section 4.10 of the Police Service Administration Act 1990, where the Commissioner may delegate powers of the Commissioner under that Act, or any other Act, to a police officer or a staff member. But it does not refer to sub delegations. [18] I accept this is regularly performed in traffic offences through facilitation of proof provisions where the Commissioner prescribes matters in certificates which are prima facie evidence. Delegations from the Commissioner are to a particular person or office holder, with the power to issue certificates and it is those delegations that certify prescribed matters. However, in this case, the delegator is the Commissioner with no sub delegation. [19] In this case it would have to be given by the Commissioner, as ―Superintendent of Traffic‖, under TORUM, because the position specified in the Peaceful Assembly Act 1992, as the person who holds that position is that person who can give the delegation. [20] I am of the opinion that such a delegation, or authority under the Peaceful Assembly Act, must be exercised strictly in accordance with the powers creating it and in the -- 3 of 11 -- absence of express power to do so, the authority cannot be delegated to any other person or body. [21] The rule on the subject is expressed in the maxim delegatus non potest delegate. The maxim expresses the principle that in an absence of express power to do so, a decision maker has no power to delegate a discretionary power to another decision maker. Where there express power in a statute to delegate, the principle does not apply, but the terms of an express power to delegate may not be exceeded. See, for example, Morrison v The Shire of Morewell [1948], Victorian Law Reports at 73. [22] This is reflected in legislation as sub delegations are dealt with also in the Acts Interpretation Act 1954, in section 27A subsection 12, which provides, "If an Act authorised the delegation of a function or power, a function or power may be sub delegated only if the Act expressly authorises the function or power to be sub delegated." [23] No such provision exists in the Peaceful Assembly Act 1992 expressly authorising the power of the Commissioner to be sub delegated through TORUM. The general provisions of the Police Service Administration Act do not override the specific provisions of the Peaceful Assembly Act. [24] Further, the consequences of a delegation by the Commissioner are by no means insignificant. It arms a delegatee with power which would otherwise be required to be taken by the Commissioner. See Dixon v LeKich [2010] QCA 213, per Justice Fraser. [25] Proof of delegations is provided in the Acts Interpretation Act 1954, subsection 27A(13) which provides that a writing purporting to be a delegation is the evidence of the delegation.. [26] Pursuant to subsections 27A(14) and (15) a certificate signed by the delegator is evidence of anything stated in the certificate in relation to the delegation and a document purporting to be such a certificate is taken to be one unless the contrary is established: Dixon v LeKich [2010] QCA 213 per Fraser JA. [27] I note, the Prosecutor has a delegation there, but in relation to this matter I find, Ewan Findlater does not have standing to bring the application, and the application therefore should be struck out. [28] But, I'll deal with a few other matters. Application to revoke Notice [29] There is an application to revoke the notice sought in the application for the approval granted on 23 May 2011. I can find nothing in the Act that allows the Court to revoke the approval granted. If that be the case, then I do not have jurisdiction to decide the matter. -- 4 of 11 -- [30] Section 10 indicates three ways in which permission to hold an assembly can be obtained: 1) by the Commissioner, or 2) by the Court which has not made an order under section 12 refusing to authorise the holding of the assembly; or 3) a Magistrates Court has made an order under section 14 authorising the holding of an assembly. [31] I am of the view that I have the judicial power to grant an assembly notice under section 12 of the Act, in circumstances prescribed, but no power to revoke the ―notice to the organiser‖ issued on 23 May 2011. [32] As to whether that assembly notice can be cancelled, revoked, or withdrawn by Findlater, is not a matter I am willing to decide, although any party could seek a declaration as to the validity of such a action through the Court that exercises that jurisdiction. [33] Other administrative law remedies may also be available to the parties. However, considering my previous ruling, the approval by Findlater of the assembly could be said to be beyond his power, therefore void from the beginning. That is also a question to be decided elsewhere. Unsigned Notice dated 21 June 2011 [34] Mr Law has served an unsigned ―Notice of Intention to Hold an Assembly‖ dated 21 June 2011 on Senior Sergeant Findlater seeking to extend the days of his assembly to include Tuesday, Friday and Saturday from 28 May 2011 to 30 July 2011 in the pedestrian mall at the corner of East and Denham Streets Rockhampton. [35] Findlater appears to have treated this notice as a new assembly notice, as opposed to an application to vary the approval of the 23rd of May 2011. That may be another matter that has to be decided elsewhere. [36] The requirements for an Assembly Notice pursuant to section 9(1) of the Act are that it must: (a) be in writing, and (b) be addressed to the Commissioner or the relevant local authority, as the case requires, and (c) be signed by the organiser. [37] The use of the word "must" is prima facie indicative of a mandatory provision. See Coutts v The Commonwealth [1995], 157 Commonwealth Law Reports at 91, and also reported in 59, Australian Law Reports at 699. [38] Strict compliance with mandatory provisions is necessary. See Woodward v Sarsons, [1875] LR 10 CP at 733. [39] The notice is incomplete. In Yilmaz v The Minister of Immigration and Multicultural Affairs (2000), 100 FCR 495, Justice Giles observed that there was -- 5 of 11 -- much to be said of the view that an incomplete form did not constitute an application at all. [40] However, an incomplete notice, in this case, could become a valid notice when the organiser signs a notice and before a decision is made by the Commissioner. [41] A decision appears to have been made, as there is an application before the Court to prohibit the assembly. [42] A signed assembly notice is one of a number of preconditions, in my view, to making an application under section 12 of the Act, to this Court. [43] Gainsaid, the application to this Court should be struck out for want of jurisdiction. Other Issues [44] Further, for the Commissioner to apply to the Court, it must be done so not less than five business days before the date of the first assembly is to be held. The notice by Mr Law indicates he wishes the approval backdated to 28 May 2011. [45] Again, the Act has not been complied with with regard to timeframes, which is a precondition to this Court's jurisdiction. Again said, the application should be struck out for want of jurisdiction. [46] I further note that an application under section 12 can be made under a number of other preconditions as set out in section 13. [47] This includes a mediation process has been engaged in and the process has ended. Such mediation sessions are conducted under the Disputes Resolutions Act of 1990. Mediation session, means, a meeting in accordance with the Act between two or more parties who are in dispute on any matter. See section 2. [48] None of the material filed indicates that the mediation process, as prescribed, has taken place and has ended. Again said, the application should be struck out for want of jurisdiction. [49] However, I will briefly add something about the issues that were proposed to be argued on the application, without, of course, making any findings or any determination of these matters. [50] The evidence that I have seen through the statements, is that Ewan Findlater, who is a senior sergeant of police, received a notice of intention to hold an assembly, from Bryan Joseph Law, on the 16th of May 2011. The notice sought permission to hold an assembly at the Pedestrian Mall at the junction of East and Denham Streets, Rockhampton, from 11 am to 2 pm, each Monday, Wednesday and Thursday, from 23 May 2011 to 22 July 2011. -- 6 of 11 -- [51] The application indicates he will use sound amplification equipment, being a battery operated PA system, with a single speaker and two microphones. [52] On 23 May 2011, Findlater and Law, met, discussed, and Law demonstrated the use of the amplifier and agreed on the conditions for a notice to be issued authorising his assembly. Findlater declares that since then he has heard the volume of both Law's speeches and music, which is above what they have agreed upon. [53] On 21 June 2011, he received another application from Mr Law seeking to expand the days of his assembly to include each Tuesday, Friday and Saturday, from 28 May 2011 to 30 July 2011. [54] On 22 June, he and Sergeant Mel Adams spoke to Mr Law about his application. Mr Law admitted at times previous he had turned the volume up louder than had been agreed upon. No agreement was reached. [55] Senior Sergeant Melissa Adams declares she became aware of complaints from businesses in the Mall near the rotunda relating to Mr Law's protest. She indicates that Mr Law had been arrested for failing to comply with a police direction in relation to the noise but no further details were given. Adams established Law had a permit to protest with conditions, one of which concerned noise levels. [56] On 21 June 2011, she had contact with Law regarding his arrest about his process activities and complaints from local business about the noise his activity generates. It appears to have degenerated into an argument. [57] Later arrangements were made for Adams and Findlater to attend upon Mr Law at the Mall the next day to discuss the new permit. [58] On 22 June 2011, she and Findlater attended outside the rotunda and discussions were had in relation to revoking his current permit and the issue of a new permit. The discussions were centred on noise levels with Law refusing to agree to any changes of the conditions. No agreement was reached at that meeting. [59] Renae Fredericks declares that she is a customer service advisor with the National Australia Bank situated at 99 East Street, Rockhampton, which is beside the pedestrian Mall. She indicates a male protestor, she does not identify who, has been using an amplifier in the Mall near the rotunda and the noise, combination of speeches and music, emanating has made it difficult for advisors to deal with customers. She does not indicate the source of such information or whether she herself has had difficulties. [60] Ian Jones is the licensee of the Oxford Hotel, which is adjacent to the National Australia Bank in the Mall. He declares that the rotunda is about 10 to 15 metres from the hotel's outdoor eating area and for the last week a protestor has been using an amplifier playing speeches and music to protest near the rotunda. The noise levels varies which has caused his customers to complain, that is disturbing their meals and believe it is affecting his business. He does not identify the protester. -- 7 of 11 -- [61] Margaret Benson owns Le Bronz Café in Denham Street. She declares a week - for a week a protester has been using an amplifier at the top of the Mall, which can be clearly heard at her business. She states, "it affects the normal atmosphere, our customers can eat their meals in." She does not expand and I don't quite know what she means how they are affected. She opines the customers are avoiding the Mall so they do not have to listen to the man or walk past him. [62] Section 12 provides: (1) If an assembly notice is given to the Commissioner, or local authority concerned, (the relevant authority) not less than 5 business days before the day specified in the notice as the day on which it is proposed that the public assembly be held, the relevant authority may apply to a Magistrates Court for an order refusing to authorise the holding of the assembly. (2) The Court must be in the Magistrates Courts District in which the public assembly is proposed to be held. (3) The Court may, by order— (a) refuse to authorise the holding of the public assembly; or (b) specify conditions that are to apply to the holding of the public assembly. [63] One only has to read the second reading speech on the Peaceful Assembly Bill, by the Honourable Dean Wells, Attorney General, on 21 May 1992 to understand why the government, at that time, in enacting the legislation decided the Queensland Police Service would not be given the power to refuse an application. [64] The application is heard pursuant to section 16 of the Act and subsection 2 prescribes how the application is to be determined as follows: In determining of an application under section 12 or 14 a Magistrates Court: (a) Must have regard to the objects of this Act and (b) Must determine the application with the greatest possible speed to ensure the application is not frustrated by delay by the Court in giving its decision and (c) Is not bound by the rules of evidence and (d) Must conduct the proceedings with as little formality and technicality as possible. [65] The object of the Acts is set out in section 2, which provides: (1) The object of this Act are: (a) To recognise the rights of peaceful assembly and (b) To ensure so far as appropriate to do so that persons may exercise the rights to participate in public assemblies and (c) To ensure 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 interest of: (1) public safety or (2) public order or (3) the protection of the rights and freedoms of others and -- 8 of 11 -- (d) To ensure the rights of persons to participate in public assemblies may be exercised without payment of a fee charge or other amount for a license permit Other authorisation. (2) In subsection (1)(c)(iii), a reference to the rights of persons includes a reference to— (a) the rights of members of the public to enjoy the natural environment; and (b) the rights of persons to carry on business. [66] At common law peaceful assemblies, processions and associations were not unlawful. A positive right to peaceful assembly and association is recognised in the International Covenant of Civil and Political Rights subject to wide ranging restrictions which are necessary in a democratic society. [67] The Peaceful Assembly Act 1992, in some way, regulates the holding of assemblies and processions with optional notification with subsequent authorisation without which the procession may still be held but there is no protection from charges, for example, obstruction - see section 6 of the Act. [68] The making of a prohibition order does not render the assembly illegal. All that it does is deny participants of the excuse afforded by section 6 of the Act. As the Attorney General indicated in his second reading speech of the Bill, "Peaceful assemblies may be authorised or unauthorised. Unauthorised assemblies must conform to traffic laws and relevant by-laws and regulations." [69] In the time limited I could find no authority in Queensland but there are four authorities that deal with the New South Wales equivalent provisions in the Summary Offences Act 1988 New South Wales which are insightful. [70] In the Commissioner of Police (NSW) v Gabriel [2004] NSWSC 31; (2004) 141 A Crim R 566; involved the defendant giving a Notice to the Commissioner of Police of a public assembly to be held in the vicinity of the home of a police officer. [71] The defendant had previously complained about the conduct of that particular police officer and maintained that he was corrupt. The defendant participated in an organization called PACP (People Against Corrupt Police) to pursue this matter. The applicant sought an order under s 25 of the Act that the public assembly was unlawful. [72] Hamilton J set out principles on which order should be made or withheld after referring to the decision of Lee J in Commissioner of Police v Vranjkovic (SCNSW 28 November 1980 unreported); the decision of Hunt J (as his Honour then was) in Commissioner of Police v Allen (1984) 14 A Crim R 244; and the decision of Simpson J in Commissioner of Police v Rintoul [2003] NSWSC 662. [73] He said of those cases: In each of these three cases the Judge emphasised the limited effect of the order of prohibition. Each of their Honours noted the absence of stated criteria for the exercise of the discretion conferred on the Court by s 25. -- 9 of 11 -- Each of their Honours regarded the exercise to be carried out as a balancing exercise between the right of free speech, vital in a functioning democracy, and other considerations, which included the right of privacy of the object of the assembly or demonstration (where that was a particular person) and of other persons in the neighbourhood and the convenience of those persons; the right of such people to be spared unnecessary offence or affront; and also the interests of the maintenance of public order and the necessity or desirability in the particular circumstances of members of the Police Force having access to the powers to arrest and prosecute for the full panoply of offences possibly applicable in these circumstances, bearing in mind the limitation of those rights in the law enforcement authorities by the existence of an order prohibiting. [74] A lot of those considerations are matters which are set out in the objects of the Act. [75] The task is a difficult one and each case is determined on its merits, especially when there are competing rights and one must give way to the other. [76] The evidence is that the businesses within the Mall area where the assembly is taking place are being affected because of the volume of noise generated by Mr Law’s amplifier. [77] I infer from this that the level of noise generated by Mr Law conflicts with one of the stated objects of the Act in s 2(1)(c)(iii) in that the level of noise interferes with the rights of the person to carry on business. [78] Whilst an assembly may have an impact on business and other persons in the Mall, the exercise of free speech in a democracy and the furthering of political views or principles should not be silenced unless it is necessary and reasonable. The International Covenant on Civil and Political Rights recognises the need to impose restrictions upon the exercise of those rights to protect the rights and freedoms of others. [79] Businesses may suffer from any number of things beyond their control including noise generated from building activity close by, aircraft noise in the businesses located under an aircraft flight path and traffic works outside their business. That is part and parcel of running a business and although they have an impact businesses should be able to cope with many types of disturbances. If, for example, excessive noise is generated then there are remedies available. [80] In this case, approval is sought to hold an assembly. If reasonable conditions can be imposed that balances the right of freedom of speech and the right of people to carry out on their business then approval should be given. That would include a condition that restricts the noise generated to an acceptable level. [81] I note the Environmental Protection Act 1994 and the Environmental Protection Regulations 2008, deal with complaints about environmental nuisance. -- 10 of 11 -- [82] Environmental nuisance is unreasonable interference with an environmental value which include the qualities of the acoustic environment that are conducive to human health and well-being, including, by ensuring a suitable acoustic environment for individuals to do the following: (1) Sleep. (2) Study or learn. (3) Be involved in recreation including relaxation and conversation. [83] Rockhampton Regional Council deals with noise complaints and after investigation may issue Directions Notice. As the assembly takes place in a pedestrian Mall, assembly notice is to be given to the Council pursuant to section 8(1)(b) of the Act. I am unsure if notice has been given to the Rockhampton Regional Council. [84] It would be interesting to know if Council has received any complaints regarding the assembly, whether they support the application, and what they consider appropriate conditions for noise levels to be. [85] I would have thought reasonable conditions regarding noise levels would not be unduly burdensome on Mr Law considering the rights and freedoms of persons as well as recognising inherent environmental sensitivity of the place of assembly which can be achieved by ensuring a suitable acoustic environment for individuals involved in relaxation and/or conversation. [86] What conditions are reasonable is not clearly identifiable from the evidence and would suggest that Council officers who deal with noise complaints under the Environmental Protection Act may be able to provide evidence on this point. [87] While there is little this Court can do at the present time as I do not have jurisdiction to hear the application for the reasons stated, I remind Mr Law of the dictates of common decency and good taste prevent him from exercising freedom of speech and assembly that significantly interferes with businesses close to where he holds his assembly. [88] What course of action the Queensland Police Service now take is a matter for them and not for this Court to decide. [89] The application is struck out for want of jurisdiction. -- 11 of 11 --