All charges against the Chaser crew have been dropped for their globally famed APEC stunt. This is a tremendous disappointment to me. Not, of course, because I wanted the crew to be convicted, but because it would have been a great test of the malleability of security legislation to encompass freedom of speech (and the media’s role in a democracy.)
The relevant offence provision in the APEC Meeting (Police Powers) Act 2007 is:
19 (1) A person must not, without special justification, enter a restricted area or any part of a restricted area.
The whole fun point of the Chaser stunt is, of course, that they did enter a restricted area, despite the ring of steel. Hence, they face the back-up ring of (lawyers’) horsehair. But did they have a ‘special justification’, from the list exclusively set out in s37(2) of the Act? Nick Cowdrey’s decision to let the crew off was based on three grounds, all dodgy.
First, he felt that all the crew could apply the general criminal law defence of honest and reasonable mistake of fact, because they never thought that they’d get into the restricted area. This is nonsense, because that defence isn’t about what they thought would happen, but about what they thought was happening. I can’t see any basis for a claim that they reasonably thought that they weren’t in a restricted area, what with the ring of steel, etc.
Second, he applied s37(2)(b), which provides a ‘special justification’ if ‘the person is required, authorised or permitted to be in the area by the Commissioner or a police officer’. Maybe the crew thought that they had been given permission to enter by the police officer? Again, nonsense. Permission given as a result of fraud isn’t permission. So, if the crew knew that the police stupidly thought that they were Canadian officials, then they couldn’t believe that they had permission (and, indeed, didn’t have a valid permission.) Could the Chaser crew have reasonably believed that the police were happy to let the Chaser crew – of all people? – into the ring of steel. No way.
Third, he applied s37(2)(c) – if ‘the person is required to be in (or pass through) the area for the purposes of the person’s employment, occupation, profession, calling, trade or business or for any other work-related purpose’, but only to some of the crew. He reasoned that the employees were just following the orders of Julian Morrow. This isn’t nonsense, but if correct shows that this exception works in a strange way. You commit no offence if your boss tells you do to something? Just obeying orders… Surely, not all orders could count for this defence. And, anyway, if following orders is a justification, why isn’t giving orders. (According to Cowdrey, Morrow, the orderer, could still be convicted, but Cowdrey believed that he’d be given a slap on the wrist anyway.)
I’ve long thought that s37(2)(c) applied myself, but for different reasons to Cowdrey’s and not just to Morrow’s underlings. Rather, it applied to the whole Chaser crew, because of their quite peculiar ‘occupation’ (or is that a ‘calling’?): exposing the stupidity of the government via stunts. Their entire job involves pushing exactly the boundaries set by the APEC act (and any other overblown security perimeter, whether at APEC or at a corporate headquarters. So long as they stayed within the bounds of that occupation, they had a special justification to be in the restricted area. The interesting question is whether ’embarassing the government by stunts’ counts as an occupation. Clearly, there’d have to be some limits, e.g. opposing the government via terrorist attacks. Though I think there’s another law against that,…
If the events had happened in Victoria (this year), then the meaning of 2(c) would be clearly amenable to interpretation in light of the rights to freedom of expression (and, perhaps, participation in public life.)