Federal Court Case Explained

Having trouble understanding the Federal Court case? To clear the air, a non-lawyer close to the case summarised it as such…

Contrary to media speculation the case is not specifically about the City Square eviction nor about seeking a declaration that we can have a “tent city” but rather it is a challenge to the way in which the Council and Vic Pol have enforced the local by-laws at City Square, Treasury Gardens and Flagstaff Gardens.

We have two main arguments:

1) A construction argument: We are arguing that the way in which the council has interpreted the laws is an incorrect construction of them and hence when they have taken enforcement action against us they have acted outside of their legitimate powers as a local council. The council has confiscated many different types of goods from OM outside of the prohibit classes of “temporary and provisional forms of accommodation” and “advertising signs and other things.” In particular we argue that a common sense interpretation of “and other things” refers to other types of advertising signs, i.e. placards, banners, boards etc. It is also worth noting that we argue that protest signs are not advertising signs as they are not for a commercial purpose, i.e. making money.

2) A constitutional argument: We are also arguing that the practical effect of the enforcement activity taken by the council has been to
hinder the protest and therefore is in breach of our constitutional right of political communication. We argue that the right to political
communication should not be limited based upon the means by which protesters choose to carry out their protest. In the case of OM we believe that the 24 hour 7 days a week nature of the protest is an integral part of the message and also requires basic auxillary
equipment such as shelter from the elements, food, water and first aid in order to function. Therefore in confiscating certain goods the
council has breached our constitutional right of political communication.

The case thus raises important questions about the scope of the constitutional right of political communication in Australia and will
be an important test case for civil rights. The case will be heard from 21-23 March 2012 at the Federal Court.

Note: The above information is not legal advice and has not come from a lawyer, but can be taken as accurate.


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