Attorney-General for the State of South Australia v Corporation of the City of Adelaide & Ors [2012] HCATrans 107 (11 May 2012)

Last Updated: 11 May 2012

[2012] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A22 of 2011

B e t w e e n -

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA

Applicant

and

THE CORPORATION OF THE CITY OF ADELAIDE

First Respondent

CALEB CORNELOUP

Second Respondent

SAMUEL CORNELOUP

Third Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 MAY 2012, AT 11.52 AM

Copyright in the High Court of Australia

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR M.J. WAIT, for the applicant. (instructed by Crown Solicitor (SA))

MR P.A. HEYWOOD-SMITH, QC: If the Court pleases, I appear with my learned friend, MR D.J. MAZZACHI, for the first respondent. (instructed by Norman Waterhouse)

MR C. CORNELOUP appeared in person.

MR HINTON: There is no appearance for the third respondent.

FRENCH CJ: Yes, thank you. Yes, Mr Solicitor.

MR HINTON: If the Court pleases, there is a fast way home in this case. Wishful thinking, but perhaps this time I can come through with it. The reasoning of the Full Court on the question of the validity of the by-law to be found in Justice Kourakis’ judgment cannot live with the reasoning of the majority of this Court in Wotton’s Case. In Wotton’s Case, where the burden was the requirement to seek permission, as it is here, the question ultimately was one of, in the exercise of the discretion, determining whether or not to grant permission. The relative decision-maker was required to take into account the implied freedom of political communication.

That would apply equally in this case in that the burden is the requirement to seek permission. The approvals officer working for the Adelaide City Council, in determining whether or not to grant permission, would have to take into account the implied freedom. If that is right, applying the reasoning in Wotton’s Case, then Justice Kourakis’ reasoning is, with respect, wrong. Of course, Justice Kourakis did not have the benefit of your Honours’ judgment in Wotton’s Case at the time.

BELL J: They were very different cases. I am not quite sure that it is such a quick way home, is it? One of the considerations that Justice Kourakis had in mind was, at a practical level, issues of political import may arise with some suddenness and just the time taken in order to obtain a permission was a burden on the freedom of communication on governmental matters.

MR HINTON: You cannot get around the fact that there will be time taken. Equally, for Mr Wotton, there will be time taken for those seeing to interview him to seek permission and it may be that they are seeking permission to interview him about something very political and something occurring at the very time on Palm Island. Your Honour is quite right. But for the purposes of today, in terms of an application for special leave, in my submission, the reasoning of Justice Kourakis, to be found at application book 105, in particular 106 and on to 107, is at odds with the joint reasons with which Justice Kiefel agreed in Wotton’s Case. In particular, it was not just delay, if your Honour Justice Bell pleases, but there was also the question of the approvals officer not having regard to the implied freedom and Justice Kourakis was of the view that that was something that he should take into account, which is contrary to Wotton, and that was something that pointed to a permission system being offensive to the implied freedom.

There is one other reason, a powerful reason, in my submission, as to why special leave should be granted in this case and that is we provided your Honours with a number of authorities from the other States concerning similar regimes for permission before posters can be posted or people can speak in public places. In each of those other States it has been held that the burden is not offensive. So here we have granted a factual regime that is slightly different, but indeed we have a judge who says in no instance is commission required, and that would set this case, in my submission, firmly at odds with those other cases.

BELL J: I am sorry, where in Justice Kourakis’ judgment is the reference to “in not instance can permission be required”?

MR HINTON: If your Honour pleases, at page 107, paragraph 159. The fourth line of that paragraph:

Members of a democratic society do not need advance permission to speak on political matters.

That very line puts this judgment, even though the facts are slightly different and by-law is slightly different, but that puts this judgment at odds with those other four cases that we have referred your Honours to. We then have a clash at the intermediate appellate level with respect to the application of the implied freedom of political communication in cases where permission is sought. Of course, Wotton’s Case itself was one where permission was required.

BELL J: Wotton was a very different case.

MR HINTON: If your Honour pleases, I have to accept that factually it was a very different case, but my essential point is the reasoning to be found in the joint judgment, the same process, if applied here, results in the same conclusion. That reasoning, that approach, not evident on pages 106 to 107.

BELL J: Can I just take up with you – just bear with me a moment whilst I turn up your summary of argument – you take issue in particular, as I understand it, with the analysis that his Honour adopts at 107, 108, paragraph 161. It seems to be assumed in your argument that if it is within the by-law making power under the convenience rule to restrict speech of any character, that conclusion necessarily resolves the debate, whereas his Honour draws a distinction between avoiding the inconvenience caused by the communication of non-political speech and communication more generally.

MR HINTON: We do seek to agitate that if a by-law is reasonably related to the power pursuant to which it is made, then it is difficult to see how it is not reasonably appropriate and adapted to a legitimate end, assuming, of course, the power is not one that is directed directly at political communication. Of course, after Wotton’s Case we have to add in now perhaps what we should have always known and that is, of course, the by-law making power has to be read subject to the Acts Interpretation Act and construed so that it does not exceed power. So when it perhaps - - -

FRENCH CJ: This section 22A, is it?

MR HINTON: It is, your Honour. So it strengthens the argument all the more in that if it is a reasonable exercise of the by-law making power then the by-law making power has to be one that does not exceed power it cannot exceed power, so then it must be reasonably appropriate and adapted to a legitimate end otherwise it would exceed power.

FRENCH CJ: The second respondent and the third respondent are not legally represented throughout this process, is that right?

MR HINTON: That is correct, your Honour. If I can foreshadow where your Honour is going?

FRENCH CJ: Yes.

MR HINTON: We have instructions, if special leave is granted, to provide funding to one.

FRENCH CJ: It would be, what, to meet reasonable costs of legal representation?

MR HINTON: Yes, your Honour.

FRENCH CJ: Yes. Would you seek to disturb the costs order – well, there would be no costs order sought?

MR HINTON: No, your Honour.

FRENCH CJ: Either on the appeal or in relation to the proceedings below, if you were successful?

MR HINTON: Correct, your Honour.

FRENCH CJ: Yes, all right.

MR HINTON: If your Honour pleases, those are my submissions.

FRENCH CJ: Yes. Mr Heywood-Smith, you are speaking in support of the application?

MR HEYWOOD-SMITH: I am speaking in support of the application and there are some matters that, with due respect to my friend, we would suggest should be articulated which make this case an even stronger case for special leave. We agree, with respect, that the case of Wotton is somewhat restricted in its utility so far as other areas of the law are concerned. What we say here is that so far as the second limb of Lange is concerned, we are concerned with legitimate ends – ends, plural. Not only are we concerned with the protection of rights of other road users, but we are concerned here with the protection of members of the public from proselytising

Now, this Court need only go to the outline of submissions of the second respondent at page 451 and the first sentence of our friend’s submission to understand the strength of that submission. In our submission, a by-law which promotes an ordered framework for the free exercise by all of any or no religion clearly serves a legitimate end. A by-law which protects people from being harangued by a religious extremist or people holding religious views of extremity, in my submission, clearly is a legitimate end. Here your Honour Justice Bell has raised the question of the urgent occasion that Justice Kourakis noted. We say that to a certain degree the by-law accommodates that. It has set aside speaker’s corners for that purpose and the Court will be minded of the fact that this by-law only places restrictions on roads. It does not place restrictions on other public places.

In our submission, there are strong grounds for the grant of leave in this case. The public importance cannot, in our submission, be overemphasised. Not only is this a case involving a constitutional challenge to subordinate legislation, but, in our submission, this case is a very suitable vehicle for this Court to give guidance in so many other areas of local government regulation. We have referred the Court to some American authority. The American cases show that the Supreme Court has grappled with regulation of demonstrations, hand billing, picketing, leafleting of windshields, vehicle advertising, sound trucks, not only in public places of a physical nature, but in cyberspace.

FRENCH CJ: Well, the American authorities are in a somewhat different context, are they not?

MR HEYWOOD-SMITH: They are.

FRENCH CJ: That is the first amendment guarantee. We are looking here at an implied freedom of communication.

MR HEYWOOD-SMITH: Quite so, and I only refer to them from the point of view of indicating to the Court the breadth of the fields that this Court can give guidance to governments on all three levels in this country as to what is appropriate.

BELL J: Does this raise the area, as I understand it, of controversy between you and the Attorney-General to which Justice Kourakis refers at paragraph 78, application book 86, where, as I understand it, there was some issue about the breadth of the convenience power?

MR HEYWOOD-SMITH: I am instructed that there might be some change in view by the State in respect of those submissions, but, in any event, we do not see that that has an impact on - - -

BELL J: On the special leave question?

MR HEYWOOD-SMITH: On the special leave point. In our submission, this case has the capacity to be a vehicle for change. We understand why your Honour the Chief Justice would have some concern about the fact that you might not have the proper assistance of a true opponent, in the sense that the respondent who is opposing the application, and we have given some consideration to that and also some have had discussions with the State about that. The Court has heard that the State is prepared to fund proper representation and, indeed, if the second and third respondents were to refuse that representation, we understand that there is the possibility of the Council of Civil Liberties accepting an amicus curio.

FRENCH CJ: An amicus intervention?

MR HEYWOOD-SMITH: Yes. So we are confident that that problem can be addressed and would be addressed and certainly any leave could impose conditions which address that. Yes, those are the submissions of the first respondent.

FRENCH CJ: Yes, thank you. Yes, Mr Corneloup.

MR CORNELOUP: I do not have any submissions, your Honour.

FRENCH CJ: Can you just come to the lectern so I can see you? Yes, that is good.

MR CORNELOUP: Yes, I do not have any submissions to make. I do not make any objection to the application for special leave.

FRENCH CJ: Now, I just want to ask you this though. As you can appreciate, if we grant special leave, the argument in the High Court will be on legal issues. Of course, it will not really be anything to do with, as you would appreciate, the merits of your preaching and it would be important, I think, that you be properly represented. Would you anticipate that if the State is prepared to meet your reasonable costs of legal representation that you would be legally represented?

MR CORNELOUP: I seek to represent myself, your Honour. I do not know about my brother, Samuel, but I will represent myself.

FRENCH CJ: He did not appear in the Full Court either, did he?

MR CORNELOUP: No, he did not.

FRENCH CJ: Yes, all right. Did he appear at first instance?

MR CORNELOUP: Sorry. At first instance, yes, he did, and Judge Stretton gave permission for me to speak on his behalf from that point onwards.

FRENCH CJ: All right. It will be important for you to realise that if you are going to represent yourself, that the submissions that will be entertained from you will be about these issues of the constitutional implied freedom of communication and the interaction between that and the legislation which you have succeeded in having invalidated.

MR CORNELOUP: Yes.

FRENCH CJ: Yes, all right. Thank you, Mr Corneloup. Mr Solicitor, special leave will be granted on condition that the applicant not seek to disturb the costs orders below, nor seek an order for costs against the second and third respondents if successful in the appeal. Mr Corneloup has indicated his intention to represent himself, which is of course his right, but it is important also that the Court have the assistance of a legally represented contradictor, so it may be that the State can facilitate the application for intervention of a contradictor properly legally represented.

MR HINTON: Yes, your Honour.

FRENCH CJ: One potential contradictor, I think, has been mentioned by Mr Heywood-Smith and one can think of others, but I think the Court needs to ensure – it is an important question on both sides of the argument.

MR HINTON: If the Court pleases, we will make those inquiries and see what we can come up with.

FRENCH CJ: All right. Thank you.

AT 12.12 PM THE MATTER WAS CONCLUDED