O'Flaherty v City of Sydney Council [2013] FCA 344: Occupy Sydney and Freedom of Speech
Thursday 2 May 2013 @ 11.11 a.m. | Legal Research
The Federal Court of Australia has recently handed down a decision in the case of O’Flaherty v City of Sydney Council [2013] FCA 344 which has raised interesting issues regarding the implied freedom of communication concerning government and political matters contained in the Commonwealth Constitution.
Background
Mr O'Flaherty was arrested after staying overnight in Martin Place at the Occupy Sydney protest. He charged with the offence of camping or staying overnight contrary to the terms of a notice in contravention of s 632(1) of the Local Government Act 1993 (NSW). He was also charged with an offence under s 199(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) for refusing to comply, without reasonable excuse, with a police direction.
The applicant claimed that using criminal sanctions to deter him from staying overnight in the area was burdening his freedom of communication about government and political matters or his freedom of association and he sought a declaration that the Council's notice was ultra vires because of the powers conferred on an authorised officer under the Local Government Act 1993 (NSW).
Decision
Katzmann J (at [95]) determined that although the Council notices in so far as they prohibit camping or staying overnight at Martin Place in the Sydney central business district, impermissibly infringe the implied constitutional freedom of political communication in their operation and effect, the legitimate end of the prohibition made it reasonably appropriate.
Katzmann J stated that “The legitimate ends of the prohibition are maintaining public health, safety and amenity in a high use public area and preserving the ability of all members of the public to use the area. Those ends are compatible with the maintenance of the constitutionally prescribed system of government.”
The appeal was dismissed as were costs.
Our LawOne Service provides over 70, 000 links to cases discussing legislative provisions – just one of the features of the premium legal product on the market today.
