Freedom of Speech and the Brisbane City Council

Chief Legal Counsel

City Legal

Brisbane City Council

Dear Sir

Thank you for your letter dated 14 March 2023 in response to my letter dated 21 November 2022.

Firstly, I note that my letter under reply in several places makes a distinction between what we say the law is and what we say it ought to be as a matter of principle. Your letter seems to disregard this distinction.

For example, you quote my statement which says that the Council, accepts “that the City Council is entitled to impose content neutral restrictions on the time place and manner in which freedom of speech is exercised in its malls and squares.” That language of course is taken from the jurisprudence of the American Supreme Court.

Over many years, we have received numerous complaints about the entirely arbitrary and unjustified restrictions that the Council has sought to place on protesters who wish to use its malls and squares.

It is our view that the Council, under both Labor and Liberal administrations, has failed to respect what is one of the most fundamental political rights which we have, which is the right to freedom of speech.

It is our position that in order to ensure that Local Councils in the State properly comply with their obligations in this regard, section 5 (4) of the Peaceful Assembly Act ought to be repealed. That way, local authorities in this State would become subject to the same notification and Court review process as the police are.

This is not a new position on our part. In our submission to the Electoral and Administrative Review Commission in 1990, we took the same position. We note that the Commission agreed with our view-see paragraph 9.46 of its Report on Review of Public Assembly Law (February 1991).

We live in a world of noise. If people are to have an effective right to communicate their views at a public assembly, they must be able to use an amplifier. No doubt, the level of amplification must take into account the interests of other members of the public.

Finally, you dispute my proposition that the Council is subject to a duty to facilitate the right of freedom of assembly.

As you will be aware, section 48 (3) of the Human Rights Act (“the Act”) provides that in interpreting that statute reference maybe had to the decisions of International Courts.

When section 22 of the Act is read together with section 13 of the Act, the effect of the Act is the same as article 11 of the European Convention on Human Rights.

The European Court of Human Rights has made a number of Statements in relation to the duty of a State under that article:

“ ….States must not only safeguard the right to assemble peacefully but also refrain from applying unreasonable indirect restrictions upon that right. Finally, it considers that, although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights (see Djavit An, cited above, § 57). Para 36 Case of Oya Ataman V. Turkey[1]

“The State must act as the ultimate guarantor of the principles of pluralism, tolerance and broadmindedness (see Informationsverein Lentia and Others v. Austria, judgment of 24 November 1993, Series A no. 276, p. 16, § 38, and Identoba, cited above, § 94). Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 of the Convention. This provision sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be” para 46 Case of Berkman V. Russia[2]

These statements are often made in the context of the heckler’s veto, but they are clearly not limited to that situation - Case of Appleby and Others V. The United Kingdom[3] para 47 - a State might be obliged to interfere with property rights to facilitate Convention rights

This view is supported by the Joint report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the proper management of assemblies[4]. At paragraph 13 of their report the Rapporteurs say:

States have an obligation not only to refrain from violating the rights of individuals involved in an assembly, but to ensure the rights of those who participate or are affected by them, and to facilitate an enabling environment. The management of assemblies thus encompasses facilitation and enablement and is interpreted in this broad manner throughout the following recommendations[5].

Relevantly at paragraph 32 the Rapporteurs made this comment

Assemblies are an equally legitimate use of public space as commercial activity or the movement of vehicles and pedestrian traffic. Any use of public space requires some measure of coordination to protect different interests, but there are many legitimate ways in which individuals may use public spaces. A certain level of disruption to ordinary life caused by assemblies, including disruption of traffic, annoyance and even harm to commercial activities, must be tolerated if the right is not to be deprived of substance[6].

As the Council is undoubtedly subject to the Human Rights Act these statements must apply to the Council in so far it is regulating public assemblies

Unfortunately, the Brisbane City Council has over the years shown a clear preference for the rights of commercial entities to spruik their wares over the rights of individuals to express their political views and of members of the public to hear those political views within a context where the rights of bystanders are also respected.

As we understand it, Mr Pavlou has brought a challenge to Council by laws on the basis that they breach the Human Rights Act. We of course are not privy to what is being argued on his behalf. However, the European Court of Human Rights has made it clear that permit systems are an unacceptable prior restraint. If a prior restraint is to be imposed, it should be in the form of a notification system[7]. We await the outcome of the case with interest.

[1] 74552/01

[2] 46712/15

[3] 44306/98

[4] A/HRC/31/66 4/2?2016 https://digitallibrary.un.org/record/831673?ln=en

[5] See para 40 ibid

[6] For a philosophical account of this duty see Scanlon Content Regulation Reconsidered in T M (Tim) Scanlon The Difficulty of Tolerance-Essays in Political Philosophy. Cambridge University Press 2003 at pages 156-159 in particular

[7] See Oya Ataman V. Turkey supra at para 16 and Venice Commission Guidelines  on Freedom of Peaceful Assembly (2nd Edition) paras 113-118. Of particular note is the lack of justification for prior restraints on the use of public forums like malls and squares by a single individual or a small group - Cox v. City of Charleston, 416 F.3d 281  and Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600 cf a public transit centre Jews for Jesus, Inc. v. Massachusetts Bay Transportation Authority, 984 F.2d 1319 (1st Cir. 1993)