The case of Hemelaar v Brisbane City Council  QCA 241 concerned an application by the Applicant to the Court of Appeal seeking leave to appeal the District Court's decision that the Magistrate Court had not erred in finding that there was no conflict between the Peaceful Assembly Act 1992 (Peaceful Assembly Act) and the Public Land and Council Assets Local Law 2014 (Local Law).
The issue before the Court of Appeal was whether the provisions of the Peaceful Assembly Act provided legal immunity to the Applicant for the relevant breaches of the Local Law.
The Applicant argued that the District Court had erred in finding that "an authorised assembly under the [Peaceful Assembly Act] was subject to the constraints contained in section 5(4) of the Peaceful Assembly Act" (at ).
The Court of Appeal held that the District Court had not erred in its finding, granted leave to the Applicant to appeal and dismissed the appeal.
The Applicant was a member of Operation 513: an organisation that attempts to spread the message of the Bible by engaging in public activities. In 2016, the Applicant undertook activities in Brisbane's Queen Street Mall and was convicted of eight breaches of the Local Law.
The Applicant gave several notices pursuant to the Peaceful Assembly Act to the Brisbane City Council (Council) and Queensland Police, which noted an intention to hold a public assembly. The Council "did not challenge the applicant's intention to hold a public assembly in the Queen Street Mall in accordance with those notices" (at ). The Council however, advised the Applicant of the following requirements:
6. the Applicant needed to apply in writing for Council's "consent in relation to the use of an amplifier and other materials as part of the holding of the foreshadowed assembly in the Mall" (at ); and
7. the application was subject to an application fee.
The Applicant was relevantly charged with the following breaches of the Local Law:
1. advertising, distributing written material and using an amplifying device without the Council's consent;
2. failing to remove an advertisement sign, despite the direction to do so, from an authorised officer; and
3. failure to comply with two compliance notices.
Peaceful Assembly Act and the Local Law
The issue in the appeal was whether the Peaceful Assembly Act provisions prevailed over the Local Law, such that the Applicant's activities would not be subject to the Local Law.
Section 2 of the Peaceful Assembly Act states its objects which relevantly includes the right of peaceful assembly, subject to such restrictions as are necessary and reasonable in a democratic society in the interests of public safety, public order or the protection of the rights and freedoms of other persons. The Peaceful Assembly Act balances the right to participate in a peaceful assembly with the right to enjoy the natural environment and carry on business.
Section 5 of the Peaceful Assembly Act provides that a person has the right to assemble peacefully with others in a public place. Section 5(4) of the Peaceful Assembly Act qualifies this, stating that the local authority's power to regulate pedestrian malls is not limited by section 5.
Section 7 of the Peaceful Assembly Act states that a public assembly is an authorised public assembly if the appropriate notice is issued. Section 6 of the Peaceful Assembly Act provides that where an assembly is an authorised public assembly, a person who participates in the assembly is immune from civil or criminal liability because of the obstruction of a public place. The Court of Appeal observed that the legal immunity is not unlimited, given it applies exclusively to the obstruction of a public place and that conduct outside of this must be accounted for. The Court of Appeal held that because of the nuanced object of the Peaceful Assembly Act, section 5 and section 7 are not inconsistent.
The purpose of the Local Law, which is outlined in section 15 of the Local Law, is to regulate pedestrian malls in order to preserve the right to natural enjoyment and to carry on business. The Court of Appeal held that the power to regulate a pedestrian mall conferred by the Local Law is consistent with the legal immunity granted by section 6 of the Peaceful Assembly Act, given that the legal immunity is limited. In contrast, if the immunity had been general there would be an inconsistency.
The Court of Appeal held that section 5 and section 7 of the Peaceful Assembly Act are complimentary provisions. The Court of Appeal held that "an authorised public assembly held in a pedestrian mall must still comply with the requirements of the relevant local authority" where it is reasonable and necessary (at ). The Court of Appeal also observed that the "requirements that permission first be obtained for specified regulated activities, including the distribution of written material and the operation of amplifying equipment, are necessary and reasonable requirements", given that these activities impact directly on a person's ability to enjoy the natural environment and carry on business within a pedestrian mall (at ).
Fee to participate in a public assembly
Section 2 of the Peaceful Assembly Act relevantly states that "the right of a person to participate in public assemblies may be exercised without payment of a fee" (at ). The Court of Appeal held that the activities regulated by the Local Law did not inhibit a person's right to participate in a public assembly in the Queen Street Mall given the Local Law did not impose a fee.
The Court of Appeal therefore dismissed the appeal on the basis that, despite being an authorised public assembly under the Peaceful Assembly Act, an assembly in a pedestrian mall is still subject to the Local Law. The Applicant therefore did not have legal immunity for the convicted breaches.
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