Magistrate dismisses charges against protesters to uphold rights to freedom of expression, association and peaceful assembly

Victoria Police v Anderson & Ors (2012) Magistrates' Court of Victoria (23 July 2012) Summary

In the Magistrates' Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner's chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.

Facts

In this case, the 16 co-accused were charged with offences under the SOA arising out of their involvement in a pro-Palestinian demonstration at Max Brenner's Chocolate Bar at QV Melbourne on 1 July 2011. The court heard evidence that:

• on this date, 150–200 protesters gathered inQV Squareto take part in the protest;
• prior to the demonstration, members of Victoria Police, QV management and others had held a number of planning meetings, and Victoria Police had obtained legal advice as to the powers they had in relation to the protesters should certain events occur;
• on the evening of 1 July 2012, Mr Appleford, the operations manager of the QV shopping centre, made an announcement at the request of Victoria Police to the protesters purporting to revoke their licence to be on the property, which included the words "You are demonstrating disapproval of the political or social interests of a retail tenant of this shopping centre. Accordingly you are breaching an express condition of entry to this property not to perform this kind of protest activity"; and
• written notices were also placed in and around QV to this effect.

The accused were charged with wilful trespass contrary to section 9(1)(d) of the SOA, and wilfully and without lawful authority besetting premises contrary to section 52(1A) of the SOA. In addition, eight of the accused were charged with assaulting, resisting or hindering police in the execution of their duties contrary to section 52(1) of the SOA.

Decision

Besetting premises charge

Magistrate Garnett held that, on the evidence before the Court, the charges against all accused of besetting the premises was not made out, as "they did not surround the premises with hostile intent or demeanour nor did their actions obstruct, hinder or impede any member of the public who wished to enter, use or leave Max Brenner's chocolate bar".

Trespass charge

Relevantly, in their defence against the trespass charge, the accused submitted that it would not be compatible with the Charter rights of freedom of expression and association in sections 15 and 16 to interpret section 9(1)(d) of the SOA in the manner put forward by the prosecution so as to allow the owner/occupier of a public place the authority to revoke a licence of a person to be in that place because of an expression of political opinion that is at odds with that of the owner/occupier.

In support of this argument, the accused adverted to section 32(1) of the Charter which requires statutory provisions to be interpreted in a way that is compatible with human rights, as well as relevant Australian and United Kingdom case law including Noone (Director of Consumer Affairs Victoria) v Operation Smile (Australia) Inc & Ors [2012] VSCA 91, Momcilovic v The Queen [2011] HCA 34 and Hammond v DPP [2004] EWHC 69.

Magistrate Garnett accepted these submissions, holding that:

• the protesters did not enter QV square without lawful excuse, wilfully or without a legitimate purpose; rather, they entered for the purpose of a political demonstration and had the lawful right to enterQV Square;
• to interpret section 9(1)(d) as submitted by the prosecution would contravene the protesters' right to freedom of expression, and a finding that a refusal to leave after being requested to do so on the basis that the protesters were "demonstrating disapproval of the political or social interests of a retail tenant of this shopping centre" constituted trespass would not be compatible with the rights to freedom of expression and association in sections 15 and 16 of the Charter; and
• while the Charter contemplates lawful restrictions on the right of freedom of expression, as provided in section 15(3), although the actions of the protesters may have caused some inconvenience to members of the public, the nature and extent of this inconvenience was not such as to warrant a prohibition of their right to demonstrate and express their political opinions.

No breach of the peace

Further, although this was not contended by the prosecution, his Honour stated in obiter that he would also not categorise the behaviour of the protesters as a significant breach of the peace or threat to public order so as to justify a lawful restriction on their human rights as contemplated by section 15(3)(b) of the Charter. His Honour referred to the decision of the New Zealand Supreme Court in Brooker v Police [2007] NZSC 30 in support of this proposition.

Application of the Victorian Charter

This decision is an example of the emerging body of case law considering the application and relevance of Charter rights in different legislative contexts, including in criminal proceedings involving the SOA. In particular, the case demonstrates that the rights of freedom of expression and association, which are protected under the Charter, will be highly relevant in cases involving demonstrations or protests.

Further, the case evinces a judicial willingness to be guided by relevant decisions from other jurisdictions such as the United Kingdom and New Zealand dealing with similar human rights legislation.

The decision can be found online at: http://www.magistratescourt.vic.gov.au/sites/default/files/Publications/VPOL_v_Anderson_%26_Ors.pdf

Madeleine Ellicott is a lawyer at Allens Linklaters.