Public preaching: Federal Court finds local council’s decision to refuse to issue a permit to preach in a public mall was beyond power

Corneloup v Launceston City Council [2016] FCA 974 (19 August 2016)

Summary
The Federal Court of Australia has upheld a challenge to a decision by the Launceston City Council to refuse to grant a permit to preach Christian ideology in a public pedestrian mall on administrative law grounds.

Facts
Caleb Courneloup, a committed evangelical Christian, has sought for many years to preach in public places regarding Christian ideology and its application to various political issues such as abortion and homosexuality. In 2013, Mr Corneloup’s challenge to the validity of a council by-law banning public preaching in Adelaide’s Rundle Mall gave rise to Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 – one of the most significant High Court decisions addressing the scope of the implied freedom of political communication under the Australian Constitution. In that case, the High Court held that the by-law prohibiting preaching in Rundle Mall was validly made under the Local Government Act 1934 (SA). While the by-law did burden political communication, it was a reasonable and proportionate limitation made in the interests of securing the safe and convenient use of roads.

In February 2015, Mr Corneloup applied to Launceston City Council (the Council) for a permit to preach in the Brisbane Street Mall and other public pedestrian malls in Launceston. The application was made pursuant to By-Law No 1 of 2010 under the Local Government Act 1993 (Tas). While the By-Law provides that the Council may permit the “use” of a mall under “appropriate circumstances”, Mr Corneloup’s application was refused on the basis that the Council’s “Booking and Usage Guidelines for the Brisbane Street and Quadrant Mall” (the Guidelines) provide that religious and political spruiking are “non-permitted uses” of a mall.

Mr Corneloup commenced proceedings challenging the decision on a number of grounds, including:

• That the decision made was beyond power because the Guidelines were inconsistent with the By-Law and therefore invalid; the Council employee who refused the permit had inflexibly applied the policy she discerned from the Guidelines and had regard to an irrelevant consideration; and the Council employee was not an “authorised officer” for the purposes of the By-Law (administrative law grounds).
• That the Guidelines were inconsistent with the implied freedom of political communication under the Australian Constitution.
• That the Guidelines prevented Mr Corneloup from obtaining the “benefit” of section 46 of the Constitution Act 1934 (Tas), which provides that “[f]reedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen”.

Decision
Tracey J upheld Mr Corneloup’s challenge on administrative law grounds. His Honour found that the Guidelines did not apply to the By-Law under which the Council employee’s decision to refuse a permit was made (clause 12).  In errantly applying the Guidelines, the employee misunderstood the Guidelines as requiring that any application for a permit to preach or make political statements in the malls be refused. This led to an inflexible application of what she discerned to be the Council’s policy by failing to consider the particular circumstances raised by the application. Reliance on the Guidelines also led to the employee having regard to an irrelevant consideration — that preaching and public speaking were not permissible in the malls. In fact, the By-Law contemplated that preaching and political addresses may take place subject to a permit being issued. Thus, even if the Guidelines had applied to the exercise of power under cl 12, they would have been inconsistent with the By-Law.

Tracey J also found that the Council employee who made the decision was not an “authorised officer” for the purposes of the By-Law and was therefore not empowered to make the decision.

Commentary
The Court’s finding of an inflexible application of policy and the reference to Elias v Commissioner of Taxation (2002) 123 FCR 499 indicates that where a discretionary power exists, administrative decision makers must consider the merits of each application and consider waiving the general policy if it is appropriate in the circumstances — even in the case of prohibitive policies, such as those contained in the Guidelines.

The case also demonstrates the importance of ensuring that reliance on policy in administrative decision making is consistent with the law empowering the decision maker to exercise discretion and that decision-makers are properly empowered to make the relevant decision.

As the Council’s decision was found to have been beyond power on administrative law grounds, Tracey J did not address the question of whether the By-Law was compatible with implied freedom of political communication in the Constitution. In obiter, however, His Honour suggested that the availability of a nearby “speakers’ corner” subsequently established by the Council may be relevant. In Adelaide City Council, the existence of a designated speakers’ corner was relevant in the High Court’s consideration of whether the by-law prohibiting preaching in Rundle Mall law was reasonably appropriate and adapted to serve a legitimate end. The scope of the implied constitutional freedom in the context of public preaching therefore remains to be seen.

In relation to s 46 of the Tasmanian Constitution, Tracey J briefly observed that it does ‘not confer any personal rights or freedoms on citizens’. His Honour noted that a similar provision in the Irish Constitution ‘has been held to prevent coercion in relation to the practise of religion and to guarantee a freedom to profess and practise a person's religion of choice’, however no authority could be pointed to that demonstrated its practical effect. In any event, because the Tasmanian Constitution is an ordinary Act of Parliament, its effect (if any) upon other Acts of the Tasmanian Parliament remains an open question.

Elizabeth Brumby and Leopold Bailey are Assistant Editors of the Melbourne University Law Review and Research Assistants at Melbourne Law School.