A recent Federal Court decision has upheld the validity of notices issued by the City of Sydney prohibiting protestors from camping overnight in a public square. The decision in O’Flaherty v City of Sydney Council  FCA 344 follows the High Court’s decision in Attorney-General (SA) v Corporation of the City of Adelaide (2013) 295 ALR 197 (Street Preachers Case), which concerned the Adelaide City Council’s regulation of the activities of street preachers in Rundle Mall through by-laws.
Members of the loosely organised ‘Occupy Sydney’ movement camped for several nights in Sydney’s Martin Place in protest against socio-economic inequality. This camping was deemed unlawful by notices posted in Martin Place by the City of Sydney under the Local Government Act 1993 (NSW). O’Flaherty – a protestor – was charged under that Act for failing to comply with a public notice.
O’Flaherty argued that it was ultra vires to post such a notice, as it infringed upon freedom of political communication and freedom of association.
The case exhibited many similarities with the Street Preachers Case - a group was assembled in a public pedestrian area, was communicating a political message and their presence was such that it contravened local laws. In this case, the local council enforced the law through the posting of notices.
Accordingly, reasoning argued by the Adelaide City Council (instructing Norman Waterhouse Lawyers) and accepted by the High Court in the Street Preachers Case was also applied to O’Flaherty’s case. The Court held that the despite the fact the protestors were engaging in political communication, the law was nevertheless enforceable because it was not levelled at political communication, but rather was intended to address and was reasonably appropriate and adapted to addressing, the legitimate ends of public safety and preserving the ability of all members of the public to use Martin Place.
With respect to freedom of association, the Court found that that no freestanding right to freedom of association exists, but rather freedom of association may only exist as a corollary to the right of freedom of political communication. Because O’Flaherty’s arguments regarding freedom of political communication failed, the Court did not consider it necessary to examine any purported right to freedom of association.
The O’Flaherty case demonstrates the importance of the Street Preachers Case, a High Court precedent that is binding on all other Courts in Australia and which confirms the breadth Council by-law making power. The O’Flaherty case reaffirms the power of Local Government to enact by-laws which incidentally burden political communication in the achievement of legitimate ends.