“And Hast Thou Slain the Jabberwock?” The Law Relating to Demonstrations in the A.C.T.
| Author | Roger A. Brown |
| DOI | 10.1177/0067205X7400600104 |
| Published date | 01 March 1974 |
| Date | 01 March 1974 |
| Subject Matter | Article |
"AND HAST THOU SLAIN THE
JABBERWOCK?"
THE LAW RELATING TO DEMONSTRATIONS
IN THE A.C.T.
BY
RoGER
A.
BRoWN*
In
an
examination of the existing limitations
of
freedom
of
assembly and demonstration
in
the A.C.T., Mr Brown first deals
with the common law and various statutory provisions
as
they
stood in 1971. He then examines the Public Order (Protection
of
Persons and Property)
Act
1971 (Cth)
in
some depth. His con-
clusion, after a brief discussion
of
rights
of
peaceful assembly
in
the present law,
is
that the current legal position in the
A.C.T.
is
unsatisfactory in that it does not give sufficient guarantees to civil
rights but rather embodies repressive laws to prevent threats
of
public disorder that may
be
more imaginary than real.
Introduction
The conflict between "law and order" and "civil rights" has yet to
be squarely faced in Australia. Freedom of peaceful assembly has
received no legal recognition, and there
is
much in our law to resist any
such occurrence. Violence of any sort in a demonstration cannot be
condoned, but often society, particularly lawyers and legislators, pays
too much attention to the immediate violence of a demonstration and
too little to the social causes of unrest.
This article deals with the existing limitations on freedom of assembly
in the Australian Capital Territory (A.C.T.).
It
is
not a study of the
causes of demonstrations, nor of civil disobedience, and
is
confined to
situations in public places, since meetings on private premises are
usually subject to the control of the owner thereof. This does not mean
that none of the comments made here are applicable to such meetings.
Part I deals with the common law of processions and meetings, with
unlawful assemblies and with the various statutory offences applied to
demonstrations, and briefly sets out the law
as
it stood in early 1971. On
13
May of that year, the Public Order (Protection of Persons and
Property) Act 1971 (Cth) came into force.
It
substantially altered the
pre-existing law, and its important provisions are the subject of detailed
examination in Part II. Part
III
is
concerned with the recognition of a
right of peaceful assembly in the light of the present law.
With recent governmental change having removed some of the causes
of unrest, the phenomenon of massive dissent may be dormant for the
immediate future, though the people will never again be President
Nixon's "silent majority".
It
is
suggested that, in such a period of
*B.A., LL.B. (Hons.) (A.N.U.), Tutor, Faculty
of
Law A.N.U.
107
108 Federal Law Review
[VOLUME
6
relative quiescence,
we
lift the heavily encumbered knight of public
order law from his horse, remove
his
encrusted armour of legal para-
phernalia, and re-equip him in a more reasonable and liberal manner
before the next encounter. Major social unrest can arise rapidly and
government, by its very nature, will often be too slow to meet popular
grievances before they reach the streets.
I. Public Meetings and Processions
Ever since Goodhart's seminal article1 it has generally been assumed
that there
is
a clear, logical distinction between a procession
(a
moving
assemblage of individuals with a common purpose) and a public meet-
ing
(a
stationary assemblage) and that the law
in
relation to each
is,
and should be, different. Goodhart postulated that, on a highway, the
only right of user
is
to pass and repass, that a procession
is
merely a
mass exercise of that right and
is
therefore prima facie lawful, whereas
a meeting, being stationary,
is
not a proper user of the highway and
is
prima facie unlawful and a trespass to the owner of the highway.
In
other public places,
we
are referred to the
laws
governing each particular
place. This neat analysis
is
questionable and requires further consider-
ation.
That an individual has a right sensu stricto to pass and repass along a
highway
is
beyond doubt: Harrison
v.
Duke
of
Rutland,2 but he may
also use it ·for other reasonable purposes, including standing still for a
time,3 making a sketch,4 or parking a truck for several hours.6 Like
all rights these are not absolute; they must be reasonably exercised.
It
has also been accepted6 that a procession
is
an exercise in the aggregate
by individuals of these rights and
is
not unlawful per se, although it may
become unlawful
as
against the public
if
it constitutes a public nuisance.
But when Dicey7 sought to apply this principle of aggregation of rights
to support a right of public meeting, he became entangled with the law
of trespass which, according to Goodhart,
8 effectively denies such a
right. Thus the question of trespass must be considered in this context.
Trespass to the Highway
In
Harrison
v.
Duke
of
RutlantP the plaintiff's activities on the high-
way
interfered with the Duke's grouseshoot, whereupon the Duke's
1 Goodhart, "Public Meetings and Processions" (1937) 6 Camb. L.J. 161.
2 [1893] 1 Q.B. 142, 154 per Lopes L.J.
3 Attorney-General v. Brighton and Hove Co-operative Supply Association
[1900] 1 Ch. 276, 280.
4 Hickman
v.
Maisey [1900] 1 Q.
B.
752, 756.
6 Gill
v.
Carson and Nield [1917] 2 K.B. 674.
6Melbourne Corporation
v.
Barry (1922)
31
C.L.R. 174, 196 per Isaacs J.
7 Dicey, Introduction to the Study
of
the Law
of
the Constitution (10th ed.
1960) 270-272.
8 Op. cit.
u [1893] 1 Q.B. 142.
1974] Demonstrations in the A.C.T. 109
servants seized and held the plaintiff until the shoot
was
over. The Duke
successfully defended an action for false imprisonment and assault on
the basis that the plaintiff
was
a trespasser and the action taken against
him
as
such
was
lawful. In Hickman
v.
Maisey
10
the defendant, a racing
tout,
was
walking up and down on the highway bordering the plaintiff's
land making notes on the performances of the latter's racehorses: he
too
was
held to be trespassing. The basis of both decisions was that
land abutting a highway was presumed to extend to the mid-line thereof,
with a right of way over the road itself, the so-called ad medium filum
rule.
11
Thus,
if
a person
was
not exercising the right of way, he had no
right at all to be on the adjoining owner's land, and
was
therefore a
trespasser.
The ludicrous nature of these decisions
is
obvious.
It
was
pure chance
that the trespasser
was
on that part of the highway which belonged to
the aggrieved landowner at
all.
12
If
he had been beyond the middle of
the road no claim of trespass could have lain, for only the occupier of
the land in question could sue. And it
is
doubtful whether, if the
occupier opposite had sued,
he
would have been successful.
For
the
courts were concerned to protect fully the interests of property owners
from what
was
considered an interference with their interest in the land
and in either case no interest of the owner opposite would have been
interfered with.
In both cases the court considered the trespasser's motives rather
than his actions, for, at least in Hickman's
case/
3 the defendant was
apparently passing and repassing along the highway, albeit frequently.
It
could be said that at least part of
his
purpose
was
to use the highway
properly
as
such.
If
this were the case, then, according to Healing
(Sales) Pty
Ltd
v.
Inglis Electrix
Pty
Ltd,
14
he would only be a
trespasser for
as
much
as
his
purpose exceeded that licensed.
15
What
is
the Highway Situation
in
the A.C.T.?
In
the A.C.T. there are no local government councils given statutory
control over highways
as
is
the situation in other States.
16
All land, at
least in the City Area,U has been purchased by the Commonwealth and
either leased or retained.
1o [1900] 1 Q.B. 752.
11
Infra p. 100.
12
In
Harrison's case, the Duke owned the land
on
both sides of the highway.
13
[1900] 1 Q.B. 752.
14
(1968)
121
C.L.R. 584.
15
Id. 599 per Barwick C.J. and Menzies J.
16
E.g. in N.S.W. under Local Government Act 1919 (as amended), s. 232.
17
City Area Leases Ordinance 1936-1974,
s.
4 (A.C.T.) defines the "City Area"
as land specified as such by the Minister: it includes the whole
of
suburban
Canberra.
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