What should you do when a bunch of protestors is outside
your business blocking customers from getting in? Any lawyer will
tell you to sue the protestors. But what if the protest group is a
rabble and there is no legal entity to sue? Well, that is where
things get tricky.
The Fertility Control Clinic in Melbourne provides family
planning and reproductive services. For decades, members of the
Helpers of God's Precious Infants group have protested outside
the clinic targeting women using the clinic's services. Rather
than sue the protestors, the clinic took the Melbourne City Council
In a clever argument the clinic said the Council had failed to
stop the group's intimidation of staff and patients, which
amounted to a general nuisance.
In NSW and Victoria there is legislation that obligates councils
to investigate and remedy all nuisances in their municipality.
Where a nuisance is found to exist, the Council must take action.
The Melbourne Council investigated a specific complaint made by the
clinic in December 2013 but found that the actions of God's
Helpers (while annoying) did not fall within the legal definition
The clinic asked the Supreme Court of Victoria to compel the
Council to exercise its powers and take action against the
protestors. The clinic lost the case for a legally correct but
rationally weird reason. The Court said that when a decision maker
like the Council is authorised by law to form its own opinion on a
factual question (such as whether God's Helpers are a nuisance)
as a precondition to taking action, even if its opinion is plainly
wrong that's tough. The Court can't intervene.
The other interesting dimension of this case was about whether
the council could declare the protestors a nuisance if that meant
infringing their rights of religious expression and free speech. In
a neat twist the Victorian Human Rights Commission made a
submission that managed to rationalise that it was okay to infringe
the rights of the protestors in circumstances where their actions
were infringing the rights of others, such as the women who were
trying to visit the clinic.
So as it turns out, you can be a group which is annoying (but
not a legal nuisance) and councils can make bad decisions for the
wrong reasons, but courts can be powerless to do anything about it.
Which makes for some pretty unsatisfying law in this case.
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