High Court decision highlights lack of protections for free speech

A major High Court decision this morning has highlighted the lack of protections that freedom of speech has in Australian law.

The High Court’s decision in the case of Attorney-General for South Australia v Corporation of the City of Adelaide and Ors failed to uphold the rights to free speech, freedom of assembly and freedom of religion.

The Human Rights Law Centre’s Director of Strategic Litigation, Anna Brown, said whilst the HRLC does not agree with the content of what the Corneloup brothers were preaching – which is homophobic and offensive – it does support free speech and had sought to defend that right by intervening in the case.

“Whilst the right to free speech should not be viewed as a trump card that overrides all other responsibilities, in this particular case the council’s By-laws overstep the mark and excessively stifle the ability of all Australians to express their views in a public space,” said Ms Brown.

The decision is the outcome of an appeal by the South Australian Attorney General against the decision of the Full Court of the South Australian Supreme Court that found a City of Adelaide By-Law prohibiting “preaching, canvassing or haranguing” without a permit was invalid under the Australian Constitution. This law was relied on by the City of Adelaide to restrict the right of two street preachers, brothers Caleb and Samuel Corneloup, to preach in Rundle Mall.

Ms Brown said the permission scheme in Adelaide as it was structured was an unacceptable limitation on the right to free speech.

“Freedom of speech and freedom of assembly are fundamental to Australia’s representative democracy, so it is a disappointing decision. But we hope this will spark debate about how Australia could better protect fundamental rights in law, ideally through a Charter of Rights or Constitutional recognition,” Ms Brown said.

The High Court found the By-Laws were appropriate to ensure reasonable use by others of roads and thoroughfares. The HRLC disagrees and points to other legal mechanisms that the City of Adelaide has at its disposal to deal with concerns in a way that would not disproportionately limit freedom of speech. For example, offensive conduct is prohibited under criminal law in South Australia and safety concerns can be dealt with under road and traffic regulations.

“There are plenty of examples of legal systems that manage to regulate the use of public spaces without excessively curbing freedom of expression. Town squares and other public places, such as malls, have a historic role in facilitating public debate and Australians should be able to express their beliefs publically,” said Ms Brown.

The HRLC’s intervention in the Corneloup case follows involvement in the legal challenge brought against the City of Melbourne and Victoria Police on behalf of the Occupy Melbourne protesters. That case, heard by Justice North in the Federal Court, is currently awaiting judgment.

Both the Occupy Melbourne proceeding and the Corneloup High Court case raise similar and significant issues about the scope of protections of fundamental rights under the Australian Constitution.

The HRLC was represented on a pro bono basis by Ron Merkel QC, Emrys Nekvapil and Nick Wood of Counsel and law firm DLA Piper.