Occupy Melbourne, Your speakers: Street Preachers Sky Mykyta and Hate Mail Managing Principal Solicitor Recent Developments in Nicholas Tiverios the Implied Freedom of Solicitor Political Communication
What we will cover today • What is the Implied Freedom? • Occupy Melbourne: Muldoon’s case • Street preachers: Corneloup’s case • Hate mail: Monis’s case • Lessons for drafters and decision-makers • Can we help you?
What is the Implied Freedom? • A limit on legislative power not a personal right • The Lange test: 1. Does the law burden free communication? 2. Is the law directed to a legitimate end compatible with representative and responsible government? • Balancing exercise at stage 2 of the test: are the means chosen reasonable?
Occupy Melbourne: Muldoon’s case • Protestors wanted to continuously occupy Treasury and Flagstaff Gardens • Local Law and Regs prohibited camping without a permit • Permit denied and notices to comply issued • Action for injunctions in Federal Court • Laws breach Constitution & Charter Act?
Muldoon’s case • First Lange question: – the Laws did burden free communication – Was it an effective burden? Much was not prohibited • Second Lange question: – Legitimate end: protection and equitable use of gardens – Balancing of legitimate end and means chosen • Laws valid: a win for reasonable regulation! • Muldoon & Kerrison have appealed to the Full Federal Court
Street preachers: Corneloup’s case • Corneloup brothers – street preachers • City of Adelaide by-law prohibited persons from preaching or distributing printed matter on any road to any bystander or passer-by without permission • Exceptions for elections, Speakers Corner • Reasonable means of regulating public space
Corneloup’s case • Laws did burden free communication • Legitimate end: The legitimate purpose concerns the safety and convenience of users of the road • Confined geographically, unsolicited communications only, permission regime, speakers corner, political exception • Laws valid: win for reasonable regulation
Hate mail: Monis’s case • The appellants allegedly sent letters to relatives of several soldiers killed in action • Each communication conveyed views about a controversial political matter • s 471.12 Cth Code makes it a crime to use a postal service in a way that reasonable persons would regard as being menacing, harassing or offensive .
Monis’s case • Laws did burden free communication • Legitimate end: prevent an intrusion of seriously offensive material into a person’s home or workplace (3 Justices dissenting) • Seriously offensive content only, fault requirements, incidental burden • Laws valid: another win (just) for regulators
Lessons for drafters and decision-makers • Principle of legality – what is within power? • Powers can be drafted to comply with constitutional limits • OR broad powers read down • Freedom of communication not absolute – balanced with other legitimate ends
Lessons for drafters and decision-makers • Can’t immunise all decisions from challenge but can put best defence • Evidence of good-decision making • In general – policies, guidelines, training of decision-makers • For specific decisions – reasons, special instructions
Can we help you? • Advice on – drafting/construing legislative powers – policies and guidelines – reasons for decisions • Training for decision-makers
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