Muddying the waters

A flotilla of vessels is today protesting the arrival of the Queen of the Netherlands – a ship, rather than a monarch – which will soon commence the controversial dredging of Port Phillip Bay. Those vessels’ activities were hampered by a declaration by the Director of Marine Safety under s. 15 of the Marine Act 1988 that bars bathing, diving and the operation of vessels 200m from the Queen (while she’s ‘underway’) and 50m from her (while she’s ‘anchored, moored or birthed’). The Act provides for fines of four penalty points (and more for later offences), but so far the police are simply yelling at offenders to move away (and they’re listening.)

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The compatibility of this action with the Charter was addressed – indirectly – in Parliament last year in debate about the Port Services Amendment Bill 2007, which introduced a new regime for the Minister for Roads and Ports to declare parts of port waters to be ‘an area to which access is restricted’, either generally or for specific people, vessels or classes of people or classes of vessels, or risk fines of ten penalty points. The Statement of Compatibility, which addressed the Charter right to freedom of movement, was criticised by the Scrutiny of Acts and Regulations Committee for not addressing freedom of expression or the right to peaceful assembly. The Minister responded that the Bill wouldn’t restrict those freedoms, although his own future declarations might. In otherwords, he’ll cross that Charter bridge when he comes to it.

He hasn’t yet, though he might if the Marine Act fails to do the trick. So, is the Director of Marine Safety’s declaration compatible with the Charter’s rights to expression and assembly (as it has to be under the conduct mandate?) For once, there’s a High Court case that’s very much on point: Levy v Victoria [1997] HCA 31, which held that a law banning protesters from the opening of duck hunting season was valid despite the constitutional right to freedom of political communication, because it was reasonably adapted to the goal of ensuring that protesters aren’t shot. The Brumby government has justified banning protesters from the bay because of the danger posed by contact between the dredger and their flimsy boats. For this reason, both SARC and the Minister concluded that the new regime in the Port Services Act was compatible with the Charter.

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