UPDATE: The Victorian Civil and Administrative Tribunal has listed the Bendigo Mosque hearing for Melbourne from December 1.
The hearing involving applicant Australian Islamic Mission Incorporated and City of Greater Bendigo is expected to go for up to three days.
AUGUST 15: A planning permit condition that bans any political discussion on the site earmarked for Bendigo's controversial first mosque may raise constitutional law issues, a Supreme Court judge has said.
Victorian Civil and Administrative Tribunal President Justice Greg Garde made the remark as lawyers for the Australian Islamic Mission told the tribunal they would seek changes to the existing permit for a $3 million mosque on the outskirts of Bendigo.
Representing AIM, Chris Townshend, SC, told the tribunal his client would file a new VCAT application seeking to "tidy-up" some conditions of the permit, including altering a requirement of "no political discussion" on the site, by Monday.
Justice Garde scheduled a directions hearing to deal with the new action in relation to the Bendigo mosque, which in its existing form is already battling objections through VCAT. He also said there could be a constitutional issue banning political discussion.
"The High Court may have some views on that," Justice Garde said.
City of Greater Bendigo director planning and development Prue Mansfield told Fairfax Media the condition was placed on the permit by the city's councillors as a last-minute addition to address some community concerns.
The condition was not in a report provided by City of Greater Bendigo staff.
"This was not recommended by staff, this was added by councillors at the 11th hour," Ms Mansfield said.
Constitutional law expert, professor Cheryl Saunders AO, said that although there was an implied freedom of communication in Australia, it had some limitations.
"There is an implied freedom of political communication in the Commonwealth constitution, but it is not an absolute freedom," she said.
"If the matter were to come before the court, any limitation must be appropriate and adapted to a legitimate purpose within the confines of the Australian constitution."
On Friday VCAT heard other permit amendments which would be sought by AIM include changes to the mosque's open hours from a blanket time to "before sunrise" in line with muslim prayer requirements.
Justice Garde queried whether AIM would also seek amendments to the acoustic provisions on the permit, in relation to the call to prayer, which can involve loud noises.
But Mr Townshend said that would not be required because: "the calls to prayer is now in the custody of mobile phone technology in that one gets a text".
There are "hundreds" of smartphone applications that now perform the traditionally noisy process of the call to the prayer, Australian Islamic Mission secretary Dr Seyed Sheriffdeen told Fairfax Media.
"When you set the application where you are, it then it alerts you when to pray."
The Council of Greater Bendigo drew heated opposition from locals and interstate anti-Islam lobby groups when it approved a permit application for the Bendigo mosque in June.
A cluster of unassociated groups challenged the council's decision through VCAT but now only one group made up of locals concerned with how a large development would affect the area remains.
Last month Monika Evers, who was an administrator for the Stop the Mosque Bendigo Facebook page, withdrew her VCAT challenge after failing in a bid to have her identity suppressed, saying she had been vilified and feared for her life.
A man who lives next to the mosque site, Peter Vanderfenn, also officially withdrew his on Friday after receiving information about a traffic concern he had against the development.
The remaining group of 16 objectors, represented by Bendigo woman Julie Hoskin, had all but seven of their grounds of objection struck out by Justice Garde on Friday because they were not strictly planning issues.
Their remaining grounds centre on issues related to traffic, parking and other social impacts on the area.
Justice Garde listed the matter for another directions hearing on November 15 and the hearing is expected to take place over three days in the first week of December.
Dr Sheriffdeen said any conditions imposed on the mosque development should be consistent with what would be imposed on any other place of worship in Australia.
"If they're building a church, would the regulatory body put a condition that you can't talk about politics?" Dr Sheriffdeen said.
"This is exactly what we want, whatever the rule that they would apply we would expect for us."