The right to Ned

It’s been a big week for Victorian icons and human rights. On Tuesday, an anonymous local reportedly attended a meeting of the Hepburn Shire Council to protest rate rises and the ensuing gentrification of Victoria’s spa country by Melbournians. Carrying a placard to that effect (albeit wordier), he underlined his point by borrowing a friend’s Ned Kelly mask – always handy to have one of those around – to ensure that his point got attention. In a way, his plan worked very well. His protest would doubtless have been ignored, were it not for the decision of the Council to shut down the meeting, citing Ned’s refusal to remove his mask as intimidatory. Indeed, Ned would surely have had the advantage if it came to a firefight.

Both sides to this dispute cited legal precedent. Ned claimed that the Australian Constitution gave priority to locals over newcomers like Hepburn Mayor Heyes. (Must be somewhere in Chapter 3.) The Council claimed that no legislatures in Australia had to put up with masked protesters. But, for once, the law is on Ned’s side. There’s the implied freedom of political communication, of course, but what about the Charter (another young upstart law?) I would have thought that the combination of these three sections means that Hepburn Shire Council’s conduct was on the nose:

4(1) For the purposes of this Charter a public authority is-… (e) a Council within the meaning of the Local Government Act 1989 and Councillors and members of Council staff within the meaning of that Act…

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether… (e) in another medium chosen by him or her.

38(1) [I]t is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

I don’t think that this provision of the Local Government Act left the Council with no reasonable choice but to close the meeting to stop Ned’s protest:

91(2) Except as provided in this Act and subject to any local laws, the conduct of meetings of a Council is in the Council’s discretion.

No relevant Local Laws are available on the Council’s website, which isn’t a good look for a Charter ss. 15(3) or 7(2) analysis. In VEOHRC’s review of the first year of the Charter, there was a note of alarm about the lack of preparedness of many Victorian local Councils for the onset of the Charter. A number of councils were singled out for praise, but Hepburn doesn’t get a mention.

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