Attorney-General for South Australia v Corporation of the City of Adelaide and Ors  HCA 3
This High Court decision concerns the scope of the implied freedom of political communication under the Australian Constitution. Specifically, it considered the second part of the test from Lange v Australian Broadcasting Corporation 189 CLR 520 – whether a by-law was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative democracy as the constitutionally prescribed system of government. The Court upheld the validity of a by-law that restricted preaching, canvassing, haranguing and handing out printed matter in the Adelaide Rundle Street Mall and found that preventing obstruction in the use of roads was a legitimate basis on which to limit the freedom of political communication and the by-law was drafted in such a manner that was appropriate and adapted to achieving this aim.
Caleb and Samuel Corneloup are two brothers who are members of the group Street Church which actively preaches a version of religious doctrine on the streets of Adelaide, most prominently on the main shopping thoroughfare, Rundle Mall. Some of the issues the group seek to express their views on span religious ideology and political communication.
In February 2009, the Corneloup brothers were prosecuted by the City of Adelaide (the Council) for breaching Council by-laws. The local Magistrates' Court found against the Corneloup brothers and upheld the validity of the Council's By-law No. 4 "Roads" the relevant clauses of which required a permit to preach, canvass, harangue and hand out printed matter in the Rundle Street Mall.
The Corneloup brothers successfully appealed to the District Court of South Australia where the relevant parts of the by-law that restricted preaching, canvassing, haranguing and handing out printed matter were found ultra vires and declared invalid. The Council unsuccessfully appealed to the Supreme Court of South Australia where the decision of the District Court was upheld on the basis that the relevant parts of the by-law were inconsistent with the implied constitutional freedom of political communication. The current case was an appeal by the Attorney-General of South Australia, to the High Court.
The HRLC successfully intervened as amicus curiae in line with its mandate to protect and promote human rights in Australia. While the HRLC did not agree with the content of what the Corneloup brothers were preaching – which appeared to be homophobic, racist, sexist and offensive – it does support free speech and had sought to defend that right by intervening in the case. The HRLC submitted that the reliance of the appellant and intervening Attorneys-General on the decision in Wotton v Queensland 285 ALR 1, as an extension of the test from Lange, was incorrect: the case could be distinguished from Wotton v Queensland on the basis that under the by-law there was no right to reasons, no decision-making criteria and the statutory context differed. The HRLC argued that the permit regime should have been constructed in a manner that was less burdensome on the implied freedom and relied upon examples of permit regimes in other jurisdictions that did not impinge on political communication to such a degree.
The intervention follows the HRLC’s involvement in the legal challenge against the City of Melbourne and Victoria Police on behalf of the Occupy Melbourne protesters. That case, heard by Justice North, raised similar and significant issues concerning the implied right of political communication and is currently awaiting judgment.
A majority of the High Court allowed the appeal by the Attorney-General of South Australia and upheld the validity of the Council by-law.
The purpose of the by-law was to prevent obstruction in the use of roads or to protect the safe and convenient use of the streets, in this case Rundle Mall. And the judges took the view that this purpose was a legitimate basis on which to limit freedom of political communication and that the by-law was drafted in such a manner that was appropriate and adapted to achieving this aim.
Chief Justice French and Justices Hayne, Crennan, Kiefel and Bell all found that the by-law clauses were validly made i.e. that the relevant Local Government Act conferred power on the Council to make the by-law including the relevant clauses.
Justice Heydon found the relevant clauses invalid and allowed the appeal "to the extent of making a declaration to that effect." His Honour made an analogy between constitutional and common law rights to freedom of speech and found that the challenged clauses fell outside of the powers conferred on the Council to make by-laws. His Honour reasoned that the relevant Local Government Act:
- Conferred no independent power and the extensive list of powers enumerated could not be extended.
- Contained no provision stating that the "specific powers are to be construed without limiting the generality of the council's powers."
- Provided no authorisation for a by-law "in terms overlapping with but narrower than" the clause restricting the handing out of printed material.
- Contained wording which was "too general, ambiguous and uncertain to grant a power to make by-laws having the adverse effect on free speech of the challenged clauses."
Chief Justice French found that the relevant clauses fell within the power conferred to make by-laws namely for "good rule and government". However, whether the by-laws were a valid exercise of the power conferred "must be construed by reference to the common law principle of legality, and the principles of reasonableness and proportionality". In this regard his Honour found that the power conferred on the Council, which had been "construed in accordance with the principle of legality in its application to the common law freedom of expression", provided sufficient support for the by-law. Justice Hayne also found the by-law to be a reasonable exercise of the power conferred on the Council.
Apart from Justice Heydon, who did not consider the Lange test, their Honours confirmed that the second limb of the test is comprised of asking whether 1) the object or end of the impugned law is legitimate i.e. compatible with representative democracy and 2) whether the impugned law is also reasonably appropriate and adapted to achieving the legitimate end in a manner compatible with representative democracy. Justices Crennan and Kiefel grappled with locating a definition of “political communication” but ultimately found the by-law valid as its object ("safety and convenience of road users") was not incompatible with, and its operation had no undue effect on, the freedom. Chief Justice French and Justice Hayne found the by-law to be appropriate and adapted under the second limb of the Lange test. That the by-law was geographically confined, not aimed at the content of any communications and contained certain geographical (i.e. a designated speakers' corner) and temporal (i.e. leading up to elections) exceptions or exclusions was looked on favourably by the Chief Justice as well as Justices Hayne, Crennan, Kiefel and Bell (concurring).
Another significant decision, Monis v The Queen; Droudis v the Queen  HCA 4, was handed down by the High Court on 27 February 2013 and also concerned the implied freedom of political communication. Together these two decisions provide an important statement from the High Court on the scope of the implied freedom. A detailed analysis of the impact of the two decisions is outside the scope of this case note but it is significant that a number of the judges of the High Court, across the two decisions, develop and confirm the importance of the principle of “legality” and the place of a “proportionality” analysis in assessing whether a law meets the second limb of the Lange test.
The outcomes of these cases also highlight the limited nature of the protection afforded by the implied freedom of political communication and the need to better protect the right to free expression and right to peaceful political assembly through legislative or constitutional means.
This decision is available online at: http://www.austlii.edu.au/au/cases/cth/HCA/2013/3.html
Max Steed is a solicitor at DLA Piper.