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High Court of Australia Transcripts |
Last Updated: 10 October 2012
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A16 of 2012
B e t w e e n -
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA
Appellant
and
THE CORPORATION OF THE CITY OF ADELAIDE
First Respondent
CALEB CORNELOUP
Second Respondent
SAMUEL CORNELOUP
Third Respondent
FRENCH CJ
HAYNE J
HEYDON J
CRENNAN
J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 2 OCTOBER 2012, AT 10.20 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, MS L.K. BYERS, for the appellant. (instructed by Crown Solicitor (SA))
MR M.J. RODER, SC: If the Court pleases, I appear with my learned friend, MS R.F. GRAY, for the first respondent. (instructed by Norman Waterhouse Lawyers)
MR C. CORNELOUP appeared in person.
MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the third respondent with my learned friends, MR J.C. HEWITT and MS G.R. RUBAGOTTI. (instructed by Banki Haddock Fiora Lawyers)
MR T.M. HOWE, QC: May it please the Court, I appear with my learned friend, MR C.D. BLEBY, SC, for the Attorney-General of the Commonwealth who intervenes in support of the appellant. (instructed by Australian Government Solicitor)
MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the Attorney-General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))
MR S.G.E. McLEISH, SC, Solicitor-General for the State of Victoria: If the Court pleases, I appear with my learned friend, MR A.D. POUND, for the Attorney-General for Victoria intervening. (instructed by Victorian Government Solicitor)
MR G.R. DONALDSON, SC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS R.B. PHILLIPS, for the Attorney-General for Western Australia intervening. (instructed by State Solicitor (WA))
MR G.J.D. DEL VILLAR: May it please the Court, I appear for the Attorney-General for Queensland intervening. (instructed by Crown Law (Qld))
MR R. MERKEL, QC: If the Court pleases, I appear with my learned friends, MR E.M. NEKVAPIL and MR N.M. WOOD, for the Human Rights Law Centre, seeking to intervene as an amicus. (instructed by DLA Piper Australia)
FRENCH CJ: Mr Merkel, we have read your summons and supporting affidavit and we have also read Mr Corneloup’s affidavit in response. You will have leave to intervene, but it will be granted on the basis that we receive your written submissions only.
MR MERKEL: If the Court pleases.
FRENCH CJ: Thank you.
MR MERKEL: Can I just indicate, your Honour, that we have distributed a short outline which we would seek to add to the written submissions if we might - - -
FRENCH CJ: That can be made available.
MR MERKEL: - - - and also hand up a volume of statutory material with a road map, in effect, through it which is the material referred to in our written submissions.
FRENCH CJ: Yes, very well.
MR MERKEL: If the Court pleases.
FRENCH CJ: Yes, Mr Solicitor.
MR HINTON: If the Court pleases.
FRENCH CJ: I am sorry, there was one other matter before you begin. There is an application, I think, on behalf of the third respondent for leave to amend the notice of contention. Is that opposed?
MR HINTON: It is not opposed, your Honour.
FRENCH CJ: Leave to amend the notice of contention is granted, accordingly. Should I add that we would expect – I imagine the order of argument will be the Attorney-General for South Australia followed by the City of Adelaide and the Commonwealth and State territories and then Mr Reynolds for the third respondent and then Mr Corneloup in person and then your reply.
MR HINTON: Your Honour, we have had those discussions at the Bar table and that is what we propose to do.
FRENCH CJ: Very well, thank you.
MR HINTON: The second and third respondents are members of Street Church. That is an incorporated association, the objects of which include to preach and minister the gospel in the streets of Adelaide. Your Honours will find the evidence relevant to that at appeal book page 401 in the fourth affidavit of the second respondent and appeal book page 405 in the fifth affidavit of the second respondent. Both of those affidavits were filed in support of the challenge made to the by-law in the District Court of South Australia.
FRENCH CJ: These were to establish a material interest for the purposes of section 276 of the Local Government Act?
MR HINTON: Yes, your Honour.
FRENCH CJ: That is not in issue, is it?
MR HINTON: No, your Honour. The topics upon which the second and third respondents preach include:
lying, stealing, drunkenness, pornography, homosexuality, same sex marriage, fornication, adultery, abortion, Islam -
I refer your Honours again to the fourth affidavit of the second respondent at page 401 of the appeal book and his fifth affidavit, page 405. There is also reference to the evidence given by the third respondent in the Magistrates Court during the course of being prosecuted for breach of the by-law to the same effect to be found recorded in the magistrate’s reasons at appeal book 171.
FRENCH CJ: This is all background with which we are familiar. The focus has to be upon the validity of the by-law, does it not?
MR HINTON: It does. If your Honours are familiar, then I will eschew the background and move straight to the by-law, but one point before I do so and it is important that we make this plain to the Court, the by-law in the form that it was has been revoked. That was part of the normal review of by-laws conducted in 2011. Our submission is that notwithstanding that the appeal is not moot for this reason. The third respondent remains convicted of the offence of contravening - - -
FRENCH CJ: When was it revoked?
MR HINTON: It was revoked on 9 October 2011. We set that out in our written submissions at paragraphs 52 and 53 and in our annexure at page 20. Nevertheless, in our submission, the appeal is not moot because there is the conviction for acting in contravention of the by-law and there is an appeal against that conviction that has been adjourned pending the outcome of these proceedings. That is made - in the third respondent’s written submissions - abundantly clear at paragraph 7 and, indeed, in our annexure to our written submissions at page 20. There is also on foot in the Supreme Court of South Australia yet to be resolved proceedings for an injunction. The grounds for the injunction are the breach of the by-law in its former form. Again, they have been adjourned pending the outcome of these proceedings.
I turn then to the construction of the by-law. The by-law is to be found at appeal book page 47. It was made and passed on 10 May 2004. That is to be seen at the bottom of page 49 where the signature of the chief executive officer is to be found.
FRENCH CJ: Just before you leave the question of revocation, I think there is been a replacement by-law in somewhat similar language, has there not?
MR HINTON: There has, your Honour.
FRENCH CJ: That is set out at Part B - page 20, I think, of the legislation which you have annexed to your submissions?
MR HINTON: Yes, your Honour.
FRENCH CJ: All right.
MR HINTON: Again, similar insofar as permission is required.
FRENCH CJ: Refers to haranguing and so forth.
MR HINTON: Yes, your Honour, and if Justice Kourakis’ decision remains in place then no one needs permission and that by-law would equally fall. “By-law No 4 – Roads” made and passed on 10 May - that is to be found at appeal book 49, published in the Gazette on 27 May 2004 because four months have to pass before it comes into operation. The gazettal version is to be found at appeal book 98. So it comes into operation - passed on 27 May and comes into operation on 27 September 2004. Looking at appeal book 47 and the by-law, the first observation I make which will become relevant when I move to the fourth argument of the third respondent’s notice of contention is that in the second line it purports to be made under the Local Government Act 1999.
FRENCH CJ: This is the section 248 point that has been made against you?
MR HINTON: It is, your Honour. The second observation I make at this point is that it purports to be made – fourth line – for the management of roads vested in or under the control of the council. At that point can I indicate that “road” is defined in paragraph 1.6 by reference to the Local Government Act 1999. That Act as it was at the time of the passing of the by-law is to be found in the appellant’s book of legislation commencing at page 233. The definition of “road” is to be found in section 4(1) at page 254 of the book of legislation. I invite your Honours to read it:
a public or private street, road or thoroughfare –
et cetera.
FRENCH CJ: This would include a mall?
MR HINTON: Yes, your Honour. My second observation drew the Court’s attention to that fourth line there and the words “vested in or under the control of the council”. At page 410 of the book of legislation your Honours will find section 208(1) of the Act, vesting all “public roads” in the council “in the area of a council”. “Area” is defined in section 4(1), which appears at page 249. I refer your Honours also to section 9 of the Act, placitum (a) and placitum (c) at page 260, just to make plain that the council area is as defined in the proclamation of the Governor and section 6 of the Act at page 258 defining the principal role of the council in a number of respects, each relevant to its area.
“Public road”, as we have seen, is defined in section 4(1). “Private road” is also defined in the same section at page 252. Control of a private road can only be derived, in my submission, by the council by virtue of the operation of section 192(1). That is to be found at page 401 of the book of legislation. The effect of all that, the by-law is limited to all public roads in the council’s area and to only those public roads and any private roads over which the council has control.
If I can return to the by-law, this case, as your Honours are well aware, concerns primarily clauses 2.3 and 2.8. Clause 2.3 provides that a person requires permission if they seek to engage in one of the identified courses of conduct, but not at an area designated as “Speakers’ Corner”. Pausing there momentarily, at the relevant time there was no such area designed as “Speakers’ Corner” in the city of Adelaide.
Then there is the second proviso where one is concerned with a “survey or opinion poll conducted by”, et cetera. The inference there is that there is an attempt, imperfect admittedly, but an attempt to account for the implied freedom. Clause 2.8 similarly has a proviso - you do not need permission to distribute printed matter if you are doing so “with the authority of a candidate during the course of”, et cetera.
The by-law does not define “preach”, “canvass” or “harangue”, the critical words relevant to the validity of clause 2.3. In our written submissions at paragraphs 23 and 24 we offer definitions relying upon the Macquarie Dictionary. “Preach” means “to advocate or inculcate (religious or moral truth, right conduct, etc) in speech or in writing.” “Canvass” means “to solicit votes, subscriptions, opinions, etc, from (a district, group of people, etc).” “Harangue” - - -
HAYNE J: Why would you read “canvass” in that way in this context?
MR HINTON: For the reason that the intention being to manage roads is to address behaviour where a person seeks to attract the attention of a group of people for the purpose of soliciting a response, perhaps too narrow - “votes, subscriptions, opinions, etc” but “opinions”, of course, is very broad. “Harangue” is liable to two possible meanings. We set them out in paragraphs 23, “a passionate, vehement speech; noisy and intemperate address” or “any long, declamatory or pompous speech”.
HAYNE J: Do give us an example, Mr Solicitor. Do give us an example.
MR HINTON: I hope your Honour Justice Hayne is looking past me and not directly at me. The former is narrower. It contemplates “speech in question will be objectionable to its audience”. We submit in our written submissions that the former is the interpretation that should be accepted and we give our reasons there, those being such an interpretation does not dis-encourage the participation of local members of the community in the affairs of the community. It still ensures “accountability of councils” and it still has the capacity to ensure that convenience, comfort and safety are managed.
I do not wish to say anything more about the submission in support of the narrower definition. It is set out in our written submissions. The definitions, as we have set them out, accord with those, in my submission, that the Full Court gave to the terms, the Full Court’s definition, so it will be found at appeal book page 471, paragraphs 9 through 11 of his Honour Justice Kourakis’ judgment.
The definitions that we submit should be given to the words “preach”, “canvass” and “harangue” largely accord with those provided by the third respondent in his written submissions at paragraphs 14 to 16. Thus, by-law 2.3 applies only to certain classes of speech. It would not capture the roadside interview or the impromptu press conference. It would not capture a speech made in opening an event. It does not prevent speech generally. Nor does clause 2.3 prevent a person using other forms of communication - the internet, space in a newspaper, a sign – although there would be, no doubt, other by-laws with respect to signs – a T-shirt. It only burdens particular classes of speech.
In terms of the implied freedom of political communication which operates on two levels - communication between elector and representative and between electors - this clause bites at the second level, can bite at the first level indirectly if you are preaching, canvassing or haranguing in the streets of Adelaide to attract the attention of your representative, but its primary focus is to the extent that it impinges upon communication, the level of communication between electors. As for the meaning to be given to clause 2.8, like the Full Court we submit that the words in clause 2.8 do not require elaboration. That is what the Full Court said at page 471 of the appeal book, paragraph 12.
HAYNE J: Would you just go back a moment. You said that it may impinge on communication in a particular way. Is it important to identify that it affects the matter, using the word “affect” as a neutral term, by identification of place, not by identification of content, but where these things may occur?
MR HINTON: Yes, your Honour. In fact, in Hogan v Hinch there is that very important distinction drawn between laws that directly act upon political speech and laws that indirectly act upon political speech. The test for the validity of the former will be higher than the latter, so to that extent it is important to identify how the by-law specifically operates upon communication.
FRENCH CJ: Communication in a road, or on a road, is it not?
MR HINTON: Yes, your Honour, in the city of Adelaide, defined by proclamation by the Governor.
CRENNAN J: Are you saying in terms of the distinction to which you just referred that the burden, if such it is, is an incidental one in relation to the freedom?
MR HINTON: Yes, not direct, incidental, yes - important then to the test applied for the purposes of validity.
KIEFEL J: Because the purpose of the by-law is concerned with the regulation of activities upon roads?
MR HINTON: Yes, your Honour, and relying upon section 667(1)9XVI for the comfort, convenience and safety of the inhabitants of the city of Adelaide. To that of course, albeit it pointless in one respect, you add the proviso of Speakers’ Corner and the exception for surveys during an election period, I think, or words to that effect. So it does not apply either to all government land. This by-law, for example, does not apply to parks and as you could take judicial notice of Adelaide is surrounded by parklands. The parklands include the five squares. This by-law does not deal with speaking in the parklands, all those five squares. There may well be another by-law that deals with that, but we are concerned with clause 2.3 and clause 2.8, so a narrow application in the city of Adelaide.
CRENNAN J: Is Rundle Mall used for vehicles or is it just used for people passing and re-passing in terms of the definition of the road?
MR HINTON: The only vehicles allowed in Rundle Mall are either very early or very late to service the various traders - during the commercial hours, if I can put it that way, no vehicles.
HAYNE J: But is there an attack on the validity of this in its particular application to Rundle Mall? I know that Rundle Mall is where these events have occurred. I thought the attack was upon the validity of the by-law generally.
MR HINTON: It is, your Honour.
HAYNE J: Thus its application to any thoroughfare, vehicular or pedestrian.
MR HINTON: Your Honour is quite right. The useful thing about speaking about Rundle Mall is that it illustrates the legitimate end. When you have a strip such as Rundle Mall where all the desirable retailers are, the main shopping strip - you will not find your robes there, but yes, the desirable retailers are - then it is like moths to a flame. So it illustrates in that respect the very need to manage roads so that, in effect, all who want to go where the people are to preach, canvass or harangue can have that opportunity whilst all who are there for the purposes of business or other purposes can equally go about their business.
The next point I seek to make about both clauses is that they do not
prohibit, they regulate. It is not that you cannot, it is you
can if you have a
permit, if you have permission. There are many cases about the difference
between “regulate” and “prohibit”.
I do not wish to
take the Court to them, but Yanner v Eaton was one example that comes to
mind where you are dealing with a regime that provides a means of permission; it
is not one of prohibition,
but regulation.
So it regulates, but not
for all government land or for all areas of the city to which the public
gravitate - only for roads - and
only when you want to preach, canvass
or harangue, or one of the other identified classes of conduct, or you want to
distribute written
material, and even then if you are not at Speakers’
Corner, admittedly there is not one, or you do not fall within the other
limb of
the proviso.
My next point - implicitly the by-law vests power in someone to grant permission, it does not tell you who that person is and the by-law does not prescribe – and this is significant as part of our argument – any conditions applicable to an application for permission or to the decision whether or not to grant permission or upon a grant of permission. If you want to preach, canvass or harangue or distribute written material on a road in the city of Adelaide, not at Speakers’ Corner and not within the terms of the second proviso, then you are burdened by the requirement to seek permission and no more.
For the purposes of our argument, looking at clauses 2.3 and 2.8, that is significant. The burden is the requirement to seek permission and that, no doubt, will cause your Honours to think immediately of Wotton’s Case, which I will come to. As to matters concerning an application for, and grant of, permission and the enforcement of the breach of any authorisation given one must have regard to By-law No 1. A copy of By-law No 1 is to be found at appeal book 113. Clause 1.1:
“permission” means the permission of the Council given in writing.
Clause 1.2:
The Council may . . . as it thinks fit . . . impose new conditions –
a discretion. We submit the conditions could not extend beyond the scope and purpose of the by-law-making power. They must be entirely consistent with the scope and purpose. Clause 2.1 creates the offence of breaching the by-law and, indeed, fixes the penalty.
These things are imposed by virtue of the operation of by-law No 1, not by by-law No 4. The penalty, your Honours, is dealt with in our book of legislation, section 246(3)(g). Sorry, 428 of the book of legislation, section 246(3)(g) “maximum penalty” may “not exceed $750” and there is provision for “a continuing offence”. My point - these things - who you seek permission from, the power of the person who may grant permission, the creation of the offence, the power to impose conditions, et cetera, are imposed by virtue of the operation of by-law No 1, not by-law No 4.
As I have submitted to the extent that by-laws 4 and 1 vest power in an officer of the council that power must be exercised within the limits of the power that the by-law may lawfully confer. As the by-law making power is limited by the legislative power of the State so too a by-law must be construed subject to that same limitation. It must be construed then, subject to the implied freedom of political communication.
I turn to deal with the legitimate end of by-law No 4. It is identified by Justice Kourakis at appeal book page 471, paragraph 8, elaborated upon when he deals with the question of the character of the by-law at appeal book page 504, paragraphs 125 to 128. In our written submissions we deal with this at paragraphs 30, 31 and 32.
FRENCH CJ: The legitimate end on one view could be rather that, as it were, discerned judicially derived from the purpose for which the relevant by-law is made in terms of its statutory authority to make such a by-law. By-laws can be made for a number of purposes. One would look to the source of power first to see the purpose, would one not?
MR HINTON: I do not disagree with that, your Honour. You can then neatly encapsulate it within that phrase “comfort, convenience and safety”, yes, your Honour; perhaps dissect it more in the paragraphs of his Honour Justice Kourakis’ judgment that I have referred the Court to. Those are the submissions I seek to make on the construction of the by-law.
Before turning to the notices of contention, can I take the Court through the Local Government Acts that will be relevant to deciding this matter, or to the provisions that will be relevant? There are two: the Local Government Act 1934 and the Local Government Act 1999.
FRENCH CJ: Are we concerned, so far as the 1934 Act is concerned, with anything other than 667(1)9XVI?
MR HINTON: Yes, we are also concerned with 667(1)4I, the nuisance power, and 668, and I will explain that in a moment.
FRENCH CJ: The 1934 Act was, as it were, gutted, not to put too fine a point on it, by the Implementation Act of 1999, but these powers were simply left standing?
MR HINTON: Yes, your Honour.
FRENCH CJ: They were not transitional in any sense, then?
MR HINTON: No, your Honour. There was a power in the Implementation Act which we have given your Honours in our –
FRENCH CJ: There is a regulatory power to cut out more of it, is there not?
MR HINTON: To repeal, I think it is –
FRENCH CJ: By proclamation, I am sorry.
MR HINTON: Yes, your Honour, section 46 of the Implementation Act. The Implementation Act appears at the book of legislation, 498, section 46. The only relevant section in this Act for today’s purposes is to be found at 525 and, as your Honour the Chief Justice says, that permits further repeal by proclamation. The intent upon the enactment of the 1999 Act was to reduce the legislative framework that applied to local government from some 40 Acts. That is spelt out in the second reading speech which we have provided to your Honours and that is to be found at page 548 of the book of legislation.
If I may take your Honours quickly to the 1934 Act as it was at the time of the making of the by-law, that version appears in our book of legislation at page 171 and I take your Honours to page 195 to section 667(1). As your Honour the Chief Justice pointed out to me, we are concerned here with 667(1)4I and 9XVI. The Full Court upheld the validity of clauses 2.3 and 2.8 on the basis that they were supported by 667(1)9XVI and, failing that, 667(1)9XVI operating on 667(1)4I. The difference depends upon the construction of 667(1)9XVI and I will take your Honours to that.
There is in this Act, the 1934 Act, no provision governing the by-law making process. That was not the case prior to its amendment in 1999. At 127 we have given your Honours a copy of the Act, as it was immediately before it was amended, to show that it had provisions governing the making of by-laws. Those provisions were taken out and put into the 1999 Act and improved, if I could put it that way.
In particular you will find at page 149, in the version of the 1934 Act immediately before it was amended, a version of section 667, much more expansive in its content. At 164 in sections 668 to 681 you will find the provisions concerning matters of process and limitations on power, et cetera, updated, expanded upon and now to be found in Chapter 12 of the 1999 Act.
Returning to the 1934 Act as it was in May 2004, and to page 197 of the book of legislation, section 668 is important. It picks up and applies the 1999 Act to by-laws made under the 1934 Act. So those machinery provisions and limitations upon the manner in which the exercise of the by-law making power was to be exercised, that formerly were in the Act and are now in the 1999 Act, apply to the 1934 Act by virtue of section 668.
Can I turn to the 1999 Act? As I have said, a full copy of it in the form in which it appeared at the time of the making of the by-law, 10 May 2004, commences at 233. I have already taken your Honours to section 6 and the role of the council, page 258. I refer, your Honours - do not pause at all to read it, but to section 7, the functions of a council - page 258, to section 8; the objectives at page 259.
I have taken your Honours to section 9, the power in the Governor by proclamation to constitute a council and define its area; section 35 at 286, a council as a body corporate. Section 36 has its general powers and capacities; sections 51 and 52 deal with its constitution; 58 and 59, the role of council members; Chapter 6, starting at 316, meetings, et cetera. I have taken your Honours to section 192 which deals with the assumption of care, control and management of land by the council, at page 401, and at section 208 concerning the ownership of roads.
At 424 of the book of legislation we find sections 238 and 239 concerning the power on a council to make by-laws concerning the control of “access to and use of local government land” and in 239 “the use of roads” respectively. I will come back to those provisions. They form part of the arguments on the notices of contention, the argument being that they extract power by virtue of their specific reference to certain matters from the general power to be found in section 667(1)9XVI.
We then come to Chapter 12 which is to be found at page 428 of the book of legislation. This chapter, as I have said, replaced sections 668 to 681 of the 1934 Act and, as I have said, the current section 668 of the 1934 Act would pick it up, subject to a contrary intent, and apply it to by-laws made under the 1934 Act.
FRENCH CJ: Your answer to point 4 in the notice of contention is 246(1)(a), is that right?
MR HINTON: Yes, your Honour. I will come to that very soon, if your Honour pleases. The application of Chapter 12 is crucial to many of the arguments raised in the notices of contention. Section 246(1) contains a power to make by-laws - a power, we say, as contemplated significantly for the purposes of today by the 1999 Act or another Act or as authorised by regulations made under the 1999 Act or another Act.
Our argument with respect to the point made about section 248(1)(a) is that 246(1)(a) picks up the power to be found in section 667(1)9XVI. It picks it up because that power is one within the contemplation of another Act. Section 246(2) is also important to the notices of contention. It prohibits councils from passing by-laws that require a person to obtain a licence. The argument is put against us that the permit requirement is the equivalent of requiring a person to obtain a licence and therefore falls foul of section 246(2). I have taken your Honours to section 246(3)(g), the penalty-creating power. I pass over the remaining sections of 246 and move to 247, principles applying to by-laws.
FRENCH CJ: These principles do not go to power, do they?
MR HINTON: They do not and there is no complaint made with respect to them in this case. I turn to section 248. It does go to power. We accept that section 248 operates on the power contained in section 667 of the 1934 Act, as your Honour the Chief Justice has pointed out, subsection (1)(a) is central to one of the arguments raised by the third respondent in his notice of contention.
In section 249 we have the process for the making of by-laws prescribed. Again, we accept that process applies by reason of section 668 to the 1934 Act. Section 249(4) is important to this case. It forms another of the arguments in the notice of contention. It requires before a by-law may be made that a certificate in the prescribed form signed by a legal practitioner, et cetera, be obtained. There is a question in this case as to whether or not that was satisfied.
FRENCH CJ: Now, you have a certificate in electronic form which accorded with the prescribed form but did not bear a signature, is that right?
MR HINTON: Yes, your Honour.
FRENCH CJ: That is the point?
MR HINTON: Yes. The question is whether or not the Electronic Transactions Act (SA) makes up the slack, if I can put it that way. In section 251, just quickly, there is set a lifespan for by-laws which has the effect that they reviewed every seven years. I also draw your Honours’ attention to section 270 of the Act, to be found at page 447, significant because it requires the council to establish a procedure for the review of decisions of the council, for council employees and persons acting on behalf of the council. In section 270(2), the review is to be conducted by “a suitable person”. So a refusal, had we got that far in this case, to grant a permit could have been the subject of review under section 270. Significantly, under subsection (3), perhaps not of the greatest of significance actually, but in an event, you cannot charge a fee for a review.
In 271 there is the possibility of mediation avenues via which the desire to preach on matters political and governmental could be thrashed out, if not first understood or sufficiently taken into account as part of the permission process. The last section that I draw your Honours’ attention to is section 276, which sets out the jurisdiction vested in the District Court to hear the second and third respondents’ application, and at 276(5) the powers available to the Court, here in particular, are placitum (e).
Can I turn then to the notices of contention and may I begin with the third respondent’s amended notice of contention and the fourth contention, that being that the by-laws contravene section 248(1)(a) of the Local Government Act and are, therefore, invalid. The question, in my submission, is whether the Full Court’s decision, which we embrace that the by-law is supported by the 1934 Act can stand, in light of the fact that on its face the by-law says it is made under the 1999 Act, in the wake of the command in section 248(1)(a).
If I can take the Court back to the by-law, the appeal book page 47, as I understand the argument that is put, having regard to that second line in the by-law, there is an indication given by the council that it was purporting to make a by-law under the 1999 Act. That that was its intention is confirmed by the gazettal of the by-law to be found at appeal book page 98, right-hand column point 8 of the way down heading:
City of Adelaide
By-law made under the Local Government Act 1999
In further support of the argument against us, as I understand it, is the reference to the certificate, the 249(4) certificate. That is to be found at page 91 of the appeal book. There the legal practitioner, Mr Kelly, provides his opinion and refers to the specific powers supporting the by-law. He does not refer to the 1934 Act.
FRENCH CJ: Do you dispute that the by-law purported to be made under the 1999 Act? I understand your argument is confess and avoid in the sense that it picks up the power under the ’34 Act anyway.
MR HINTON: We put two items. One is confess and avoid, your Honour, is quite right. The other is the construction of 248(1)(a).
HAYNE J: Sorry, of?
MR HINTON: Section 248(1)(a). Our submission is the council was of the opinion that it was not exercising power derived from the 1934 Act. But section 248(1)(a) does not direct attention to the opinion of the council, it directs attention to the power and if that is correct - - -
HAYNE J: Well, what work are you giving to the words, “purports to be made”?
MR HINTON: “Purports to be made” apply to the power under consideration. It purports to be made under any and all powers that will support it. If it directed attention to the opinion then you have the rather unusual or perhaps perverse position of, well, what happens if there is no power nominated by the council? You then go in search, as you would do in the normal sort of case where you are attempting to identify a power for one, by virtue of its character, capable of supporting the by-law. Our submission is that 248(1)(a) does no more than state what is the common law, and that is, it must not exceed power conferred, whichever power is capable of supporting it.
HAYNE J: But, was or can the Act be read as attempting to do away with what once was the practice of this by-law is made under section blank of the Act, and all other powers thereunto enabling, which was the, I think, common form often found in rules of court as I remember, in effect causing councils to nail their colours to a mast.
MR HINTON: It is not necessary that it do that because you have the comfort of the certificate in section 249(4) from the legal practitioner. No need to require a council of people – some perhaps, many not – legally trained to nail their colours to the mast because we have the comfort of the certificate.
HAYNE J: The certifier would necessarily have to nail his or her colours to the mast, would not they?
MR HINTON: Yes, true, your Honour, but 248(1)(a) does not direct us to that person’s opinion.
FRENCH CJ: So, dealing with the power under which the by-law purports to be made or the Act under which the by-law purports to be made?
MR HINTON: The words are “power conferred by the Act”. That is our first submission.
FRENCH CJ: But, it seems to be directed to something on the face of the by-law, does it not? The by-law purports to be made under something. In this case the by-law says it is made under the Local Government Act 1999.
MR HINTON: Our submission is it directs you to the power, not to the actual document itself, not to an opinion expressed in a document. But, if the Court is not with us in that regard then our primary submission is relying upon section 246(1)(a). This is a by-law made under the 1999 Act because 246(1)(a) picks up the power in the 1934 Act. It is a power to make by-laws that are within the contemplation of another Act. The other Act, for the purposes of today, we say is the 1934 Act.
HAYNE J: If that is right, what is the consequence of the absence of reference in the certificate at appeal book 91 to 246(1)(a)?
MR HINTON: No consequence, your Honour. You must have a certificate before you can make a by-law and you must not exceed power, but no other requirement. The construction, first point that we put on section 248(1)(a) I said that would accord with the common law, just to give your Honours a reference that was recently referred to by the Court in the AEU v Department of Education and Children’s Services Case [2012] HCA 3; (2012) 86 ALJR 217 at paragraph 34, the common law position being it does not matter if you mistakenly believe you are acting under one power if of course there is another power that supports what you are doing. Of course, a necessary condition to that is that if you have made a mistake and there is another power, you have still satisfied all preconditions that enliven that power. Here there is no question raised that all the preconditions of section 249 were satisfied.
HEYDON J: Is section 246 subject to section 248?
MR HINTON: Yes, your Honour.
HEYDON J: Well, if it is, does that not knock your fall back argument? If 246 is subject to 248 it means that section 246 gives a power which is open to later qualification or limitation in the statute and section 248 would be an enactment of that kind once you concede that you fail on the first argument that you and Justice Hayne were discussing about five minutes ago.
MR HINTON: Section 246 subject to 248 – but I do not fail because I still have reference to the power, the power granted by 246(1) being that power there in the 1999 Act. All I do not have is a, according to the 1999 Act, picking up the 1934 Act. My submission is I do not need the latter; I identify the power. What is put against us is that that would mean that you have a by-law unlimited in scope. In my submission, no, you do not; you have one still limited by what it picks up. It is limited by the contemplated power in the other Act and the scope and purpose of it.
So in no sense is that stricture contained in section 248(1)(a) sidestepped, as my learned friend puts, or a council’s power expanded upon. It is still limited to what is picked up and the normal tests of characterisation would then apply. It must still fall within the scope and purpose and must not offend other limitations set out in section 248(1). The certificate requirement is not undermined. It remains for the legal practitioner to advise. The suggestion is that they cannot advise unless you nominate your power. That would mean to construe section 249(4) as requiring advice limited to considering only that power nominated by the council. It is not open to that construction.
If 246(1)(a) is the answer, it does not frustrate legislative review, that is, not in the nature of judicial review, but that still occurs in the normal way. Lastly, of course, judicial review can occur in the normal way.
FRENCH CJ: Well, am I right in saying that your position is that this is a by-law which purports to be made under the 1999 Act because it says so, and if it is made in the exercise of the power under section 667(1)9XVI it is made in the exercise of a power which is, as it were, incorporated by referring 246(1)(a)?
MR HINTON: Yes. Section 246(1)(a) picks up 667(1)9XVI. If the Court accepts that argument then the fourth contention in the third respondent’s amended notice of contention should be rejected. Can I turn to the second respondent’s notice of contention, which appears at page 534 of the appeal book, and paragraph 3? This is the 249(4) argument. The Court will recall that an essential precondition to the making of a by-law is the provision of a certificate signed by a legal practitioner certifying that in the opinion of that practitioner the council has power to make the by-law by virtue of the statutory power specified in the certificate, and the by-law is not in conflict with the 1999 Act.
That section is at page 431 of the book of legislation. What happened in this case is set out in the affidavit of Paul Kelly, which is at appeal book 345, and the crucial paragraphs are 5 to 15. The certificate is prepared, it forms the first part of the document containing the by-law. It is emailed in that form to the council. Mr Kelly identifies the particular person, Mr Palumbo. There is an agreement that the certificate will be received in this way.
The email is to be found at appeal book page 352, sent to Mr Palumbo containing the by-laws, the Legislative Review Committee Report – that is the LRC – and the report of compliance with national competition policy. The format of by-law No 4 as forwarded by email appears at page 368. Your Honours will see the certificate forming the first half of the page and thereafter “By-law No 4” follows. So the certificate was not signed in the conventional sense.
It was forwarded, as we see it there, pursuant to an agreement with a council officer that it would be received electronically in that format, accompanied by a covering email, if you like, indicating that it comes from Mr Kelly, “Associate, Norman Waterhouse” a firm of solicitors. Can I take the Court to section 9 of the Electronic Transactions Act 2000 (SA). That is to be found in the book of legislation at page 537.
FRENCH CJ: Are there any written submissions from either the second or third respondent on this question?
MR HINTON: None by the third respondent.
FRENCH CJ: I do not think there is anything in the second.
MR HINTON: Raised by the second, your Honour.
FRENCH CJ: But not in the written submissions, only in the notice of contention.
MR HINTON: No, your Honour, and none with respect to the fourth ground in the notice of contention. I was going to leave that one - I was not sure - and wait for the reply.
FRENCH CJ: Yes, all right.
MR HINTON: Section 9 sets out an alternative means where you are communicating by electronic communication and are required to provide a signature. Here the certificate – the requirement that it be signed – will be taken to have been met in relation to an electronic communication which is defined in section 4 - page 535 – “if the method is used to identify the person” whose signature is required – if a method, rather – here the covering email – method capable of including the telephone call beforehand – and to indicate that the person’s approval of the information communicated, the email speaks for itself – and having regard to all the circumstances the method was as reliable as was appropriate, et cetera, and, of course, and the recipient consents, and Mr Palumbo did.
Justice Kourakis dealt with this in the appeal book at pages 506 to 509, paragraphs 136 to 152. At paragraphs 137 to 145 he undertakes an analysis of the provision for the purpose of determining whether or not compliance was a necessary precondition. He concludes that it is. We do not take issue with that. At paragraphs 146 to 148 he sets out what happened in this case, as I have briefly taken your Honours to it. At 149 he sets out section 9. At 150 to 152 he considers whether or not section 9 was satisfied in this case.
We embrace his Honour’s reasoning and have nothing to add to it. For the same reasons, if section 10(2) is raised we rely upon those paragraphs, 150 to 152. As to section 10(3) if that is raised, whilst the document was altered in that the certificate and the by-law were separated out, for the purposes of the subsequent Council meeting, it was not altered during the course of its electronic communication, which is what section 10(3) is concerned with.
Those are my submissions on paragraph 3 of the second respondent’s notice of contention. If your Honours will excuse me. I am grateful to my learned junior. There are written submissions on this argument. It is to be found at page 8 of the second respondent’s written submissions, reproduced in the same form as the notice of contention.
FRENCH CJ: Thank you.
MR HINTON: Can I turn then to the third respondent’s amended notice of contention and, in particular, to paragraph 1 contention 1 and whether or not the by-law is supported by a by-law making power. As I have submitted, we contend that clauses 2.3 and 2.8 are supported by section 246(1)(a), picking up section 667(1)9XVI. Putting to one side the question of the construction of section 246(1)(a), the question is whether section 667(1)9XVI of the 1934 Act is capable of supporting these two clauses. The argument turns on whether it is a freestanding general power or whether it is to be construed as incidental to or limited by the specific enumerated heads contained in section 667.
Section 667 is to be found at pages 195 to 196 of the book of legislation. Can I take your Honours to it? My first observation looking at the chapeau is that it is not indicative of any intent to limit the power conferred for the purposes identified. Secondly, the words “all or any” do not suggest that any of the enumerated purposes thereafter are in any way subordinate, one to another. Thirdly, when one looks at the paragraphs remaining, 3XVI, 3XXII, XLI, 4, 5 and 7 there is no discernible class or genus of person, activity or conduct in the specific heads of power that would allow one to construe 9.XVI in a manner ejusdem generis.
Turning to the words of 9.XVI itself, the words “for the good rule and government of the area”, like those of “for the peace, welfare and good government” that we hear in other constitutional contexts suggest a grant of broad power and not a power that is incidental or subordinate in some respect. The words “and for the convenience, comfort and safety of its inhabitants” serve to emphasise the general nature and breadth of the power. The ordinary meaning of these words is significantly different to, for example, section 51(xxxiv) of the Commonwealth Constitution, the incidental power.
KIEFEL J: Can you translate cases dealing with the plenary power, as I think it has been described, of the peace, order and good government provisions in a constitutional setting to a local authority - and delegated legislation to a local authority?
MR HINTON: No, but my point is to attempt to identify the breadth of the words used to convey that they are something more than incidental in their meaning and their application.
KIEFEL J: You are focusing upon the source, which is section 667 which itself is supported by the head of constitutional – state constitutional power.
MR HINTON: Yes, your Honour, so it itself limited by section 22 of our Acts Interpretation Act if that is where your Honour is going - - -
KIEFEL J: Yes.
MR HINTON: - - - to it cannot exceed legislative power – it cannot exceed the full ambit of state legislative power.
KIEFEL J: Well, when legislation is made delegating that power in the context of by-laws to a local authority, it is obviously confined to a geographical area, but it would also be confined by reference to other powers by which a local authority is limited.
MR HINTON: Yes, your Honour. The crucial question in the construction of this section is whether or not the specific that we find in 3, 4, 5 and 7 –
KIEFEL J: Means that you read down the width of the power generally.
MR HINTON: Yes, your Honour, and what we have is dicta from Justice Isaacs in the Melbourne Corporation v Barry Case presented with a similar by-law, albeit one for the City of Melbourne, deciding that that by-law is – the convenience power, as Justice Kourakis calls it, is to be read down. It confers a power, Justice Isaacs says - - -
FRENCH CJ: This is [1922] HCA 56; (1922) 31 CLR 174?
MR HINTON: It is, your Honour, and in particular at 194 at about point 3:
I pass over sub-sec 22 –
a different source of power, for the purpose of saying something about subsection (37), there to the end of that paragraph. The content of section 197 subsection is not spelt out in full but you get a flavour of it from the previous page of Justice Isaacs’ judgment, page 193, again at about point 4. You see “sec. 197”, “37 separately arranged purposes”, and at about point 8:
Finally, the 37th purpose is “Generally for maintaining the good rule and government of the municipality.”
Justice Isaacs concludes that:
It confers a power, not of extending other powers, but of aiding them if need be or of making independent ordinances in matters ejusdem generis with the specific powers of the Act.
The Chief Justice did not consider whether or not subsection (37) supported the relevant by-law here. Justice Higgins at 209, 210, the last paragraph on 209 over onto 210 is slightly cryptic in his view but it is clear he is not giving it the broadest interpretation. Subsequently in Victoria in the cases of Seeligson and Leslie the Court has applied, to a similar by-law similarly framed, the dicta of Justice Isaacs. The question then is do we construe 667(1)9XVI in the same way? Justice Kourakis determined that we do not.
Before turning to Justice Kourakis’ judgment there is one more authority that I would refer your Honours to, and that is the decision in Lynch v Brisbane City Council [1961] HCA 19; 104 CLR 353. The by-law concerned here was similar to those in Victoria considered in Barry, Seeligson and Leslie. Here the case concerned an appeal against an injunction granted in favour of the council prohibiting the appellant from preventing them from taking down a stall that he had up without a licence.
The impugned by-law is set out at page 358 in the judgment of the Chief Justice at about point 8, the words “It runs”. The by-law making power is described by Chief Justice Dixon at page 361 of the report, commencing with the second line:
The source of the authority claimed for the ordinance is s. 36.
Subsection (2) of section 36, the content is given at about point 5, and subsection (3) is also given and there it ends with the words:
and generally all works, matters, and things in its opinion necessary or conducive to the good government of the City and the wellbeing of its inhabitants.
Again, generality following a degree of specificity. At page 362 at about point 5 through to point 8 the Chief Justice points to the general expressions of power as supportive of the by-law. At about point 8 there is the reference there to:
expressions of a kind which in such contexts have caused courts difficulty –
Nevertheless, he says:
But they cannot be dismissed for that reason as if they were meaningless or ineffective.
On the balance of pages 362, 363 and over onto 364, his Honour deals with a number of the authorities, some of which I have mentioned; Barry, Seeligson, Leslie. He concludes, with respect to section 36 at page 364, point 4, it is very different in it is context, he says. The only real difference, in my submission, is the words that it commences with, which is set there at about point 4:
“Without limiting the generality of its powers”. It is needless to repeat what has been already said about the manner in which s. 36 is constructed but the course the legislature has taken does not authorise the Court to read the wider words of sub-s. (2) down severely as if they were a vague and almost nugatory “et cetera”.
The primary difference between what we have and what was considered in Lynch is those words “without limiting the generality of its powers”. But we have a chapeau equally broad, a council may make laws for all or any of the following purposes. In my submission, the absence of those words “without limiting the generality” does not provide reason to read down section 667(1)9.XVI severely as a vague and almost nugatory, et cetera. Justice Kourakis provides a very good reason for not doing so. He deals with it in his judgment at appeal book 482, paragraphs 50 through to 77. He traces the legislative history of section 667. At 484, paragraph 55, his Honour provides his conclusion, having looked at the format of the 1861 Municipal Corporations Act:
Rather, the purpose appears to have been to provide expressly for the regulation of the new emerging needs of modern urban communities.
Breadth is the intent. The 1861 Act, I will not take your Honours to it, but it is in the book of legislation, and the crucial section, 146 is at page 1, schedule K, at pages 10 to 14. Justice Kourakis then turns to the 1880 Act at paragraph 58. His conclusion is to be found in paragraphs 60 and 61, no “intention to limit the powers of the Corporations, but to expand them”. One difference here, rather than just “generally for” we have “And generally” set out in paragraph 59.
FRENCH CJ: These conclusions in the end are at 95 and 96, are they not, after reviewing the authorities?
MR HINTON: They are, your Honour. We provide in our book of materials the relevant sections of the various acts so that your Honours can trace the journey that Justice Kourakis has taken. But your Honour is quite right. The conclusion is at 95 and 96. But there is one further significant point that Justice Kourakis makes at paragraphs 76 and 77 related to something your Honour the Chief Justice said earlier and that is the 1934 Act being gutted. The movement is to generality. With every change legislation has to be construed afresh and in the movement, in the gutting of the 1934 Act, there arises good reason to construe the convenience power, as Justice Kourakis called it, broadly.
HAYNE J: In the course of his Honour’s discussion of what he describes as the convenience power does he refer directly to the fact that the convenience in question relates to the use of thoroughfares, or rather roads, as defined?
MR HINTON: Yes, your Honour.
HAYNE J: Where?
MR HINTON: If memory serves me correctly - - -
HAYNE J: There is a reference in paragraph 69, but beyond that:
preaching, singing or hooraying in city streets.
MR HINTON: Yes, your Honour. He does not in this portion of the judgment refer to roads, as I recall, no. At 87 – not in answer to your Honour Justice Hayne’s question – but at 87, moving on, there is the conclusion that his Honour arrives at, leaving to one side Justice Isaacs’ dictum. Sorry, there is the conclusion as to the application of that dictum – and, at 98, the ultimate conclusion.
The convenience powers extends to regulating conduct which, having regard to the considerations I have mentioned –
those immediately above, identifying the municipal concerns for which the general power authorises by-laws, et cetera –
is properly a matter of municipal concern and which, if left uncontrolled, will materially interfere with the comfort –
et cetera. For the reasons given by Justice Kourakis, in our submission, the approach of Chief Justice Dixon in Lynch is the preferable approach and the by-laws – clauses 2.3 and 2.8 – are supported by section 667(1)9XVI. If the Court is with us in that regard, then the first contention of the third respondent’s amended notice of contention should be dismissed. If the Court is not with us, there remains one further hurdle for the second and third respondents.
If Justice Kourakis’ construction of 667(1)9XVI is rejected and Justice Isaacs’ dictum in Barry is applied, there is the question of whether or not the by-laws are supported by 667(1)9XVI, operating on the nuisance power in 667(1)4I in the fashion described by Justice Isaacs. At 481 of the appeal book, paragraph 43, Justice Kourakis concludes that the nuisance power, as he calls it, 667(1)4I, does not directly support clauses 2.3 and 2.8. We take no issue with that. At 503, paragraph 120, his Honour comes back to the nuisance power. There, the reference to Leslie is a reference to page 496, paragraph 94 of his judgment. And, that is an application of the dictum of Justice Isaacs in Barry.
Those by-laws are then not directly supported by the nuisance power but they aid the nuisance power in a matter ejusdem generis. So there is the alternative basis upon which his Honour holds they can be supported. They are my submissions on the first contention in the third respondent’s notice of contention.
There are two other arguments raised in the second respondent’s notice of contention, paragraph 1 and paragraph 2. These turn on a question of the construction and application of sections 238 and 239 and their interrelationship with 667 and, indeed, 246(2) and its application potentially to the by-laws.
With respect to the first argument, I can be brief here. The question is one of construction requiring a consideration of whether sections 238 and 239 extract power from section 667(1). Justice Kourakis deals with this question at appeal book page 475, paragraph 23, and in greater detail – that being the summary of his conclusion – at 503, paragraphs 121 to 123. We are content to rely upon what Justice Kourakis has decided and his reasoning.
With respect to the second contention in the second respondent’s notice of contention, this concerns section 246(2) and the question of whether or not what we have is the imposition of a licence as opposed to a permit. Justice Kourakis deals with this question at page 475, paragraphs 24 to 26, and 505, 130 to 136. Again, we are content to rely upon his Honour’s treatment of that question.
That leaves me with the third respondent’s amended notice of contention, clauses 2 and 3, to deal with. The question is whether the by-laws, the clauses, are invalid, generally speaking for want of reasonableness. Reasonableness, as your Honours will know, is a test for determining the character. It is of assistance particularly where we have a purposive power. Here we are dealing with a purposive power, a convenience power.
The question is whether the impugned law could reasonably have been adopted as a means of attaining the ends of the power. If it could not, there has been no real exercise of the power. I take that test or I take the source of that test to be the judgment of Justice Dixon, as he then was, in Williams v Melbourne Corporation [1933] HCA 56; 49 CLR 142 and in particular at page 155, the second line, to about point 4. It could not reasonably have been adopted as a means of attaining the ends of the power. May I then refer your Honours to South Australia v Tanner [1989] HCA 3; 166 CLR 161 at 165 where four Justices embraced that test:
whether the regulation is capable of being considered to be reasonably proportionate to the . . . purpose.
HAYNE J: Sorry, what line and whereabouts? Page 165 where?
MR HINTON: Page 165, the paragraph commencing “In the course of argument”. That was the test, of course no one disputed it, but that was the test applied, drawn from Justice Deane in the Tasmanian Dams Case and, of course, going back to Justice Dixon in the Williams Case. I do not take your Honours to it, and I apologise, it is not on our list, but all Justices in Richardson v Forestry Commission [1988] HCA 10; 164 CLR 261, applied the Williams test in the case of determining whether or not a law fell within the external affairs power. The relevant pages are 289, 303, 311 to 312, 324, 336 and 346.
So the test where we are concerned with the character of a law is one of looking to the operation and again we are concerned with the purposive power, looking to the operation of the law and asking whether it could reasonably be considered appropriate and adapted to the purpose of the power. Justice Gummow, in the case of the Minister for Resources v Dover Fisheries [1993] FCA 366; 116 ALR 54 - if I could take your Honours to that, at pages 65 to 67, discusses the evolution of this test in Australia, referring to the authority.
CRENNAN J: I think that is also reported in the Federal Court Reports.
MR HINTON: I am sorry, your Honour, we do not have the authorised – we should have had it, I am sorry. He states the test in the same terms I have, and unfortunately we do not have paragraph numbers either, at page 67 of the Australian Law Report, line 16. The previous full paragraph is important in terms of its content of the characterisation test for a purposive power. As a test of characterisation so stated it appropriately confines the role of the judiciary by allowing that degree of tolerance or that margin as to the choice of the manner in which a legitimate end will be pursued.
In this case then, just dealing with the question of character, the question can be framed in the following terms. Does the by-law, do the two clauses involve such an actual suppression of the use of roads for preaching, canvassing, haranguing and the distribution of written material as to go beyond any restraint which could reasonably be adopted for the purpose of preserving the convenience, comfort and safety of the city’s inhabitants - go beyond any restraint which could reasonably be adopted for that purpose.
The answer is that it does and the by-law could not reasonably be regarded as the concern of the city and beyond power. Here Justice Kourakis deals with the question at appeal book pages 498 to 505. He discusses the test at pages 500 to 501, paragraphs 109 to 114, culminating in stating the test at 115:
Delegated legislation is disproportionate or, to put it in another way, not capable of being considered reasonably appropriate and adapted to the statutory purpose of the delegation –
et cetera. In our submission, that places the bar too high for a test of characterisation. It is not whether or not it is reasonably appropriately adapted, it is whether or not it can reasonably be considered appropriate and adapted and again I am confining myself only to the test of characterisation for a purposive power. It does not really matter that he has placed the bar that high because, of course, when he applies it he finds that the character of the by-laws can be supported by 667(1)9XVI.
Can I just pause for a moment there? I have deliberately distinguished the test applied in paragraph 115 from that of Williams, Tanner, Dover Fisheries because there is a difference between this test and the Lange test. That difference is recognised by Chief Justice Mason and Justice Gaudron in their judgments in Cunliffe [1994] HCA 44; 182 CLR 272, in the case of the Chief Justice at 300, Justice Gaudron at 387, 388. It is also recognised in Coleman v Power [2004] HCA 39; 220 CLR 1 at paragraphs 87 by Justice McHugh, 196 by Justices Gummow and Hayne and 212 by Justice Kirby.
There the Commonwealth and New South Wales had attempted to argue that the second limb of Lange should be stated in the same way as the test for characterisation. I will return to that point. The difference is significant. We are only concerned at this stage with a question of characterisation, for the reasons given by Justice Kourakis - - -
HAYNE J: You say that for the purposes of characterisation we are, are we not, concerned with whether it is within power?
MR HINTON: Yes, your Honour, that is what I mean, yes.
KIEFEL J: Well, it is just a question of excess then, is it not? It is a test for whether or not something exceeds the bounds of the power.
MR HINTON: It is but it has been framed in a manner different to that the implied freedom for the reason that there is greater margin given to the law-maker to determine how to achieve the end than there is where you have a law that places an effective burden on the implied freedom than there is where you are concerned with a constitutional guarantee. That is not as elegantly put as the Chief Justice in Cunliffe and Justice Gaudron put it, the distinction, less margin given to the law-maker where we are concerned with a law that burdens a constitutional guarantee.
HAYNE J: But do you say that cases after Williams v Melbourne Corporation have either developed or departed from what Justice Dixon was saying there?
MR HINTON: No, my submission is that - - -
HAYNE J: What is his Honour saying in that first paragraph at 49 CLR 155? Is he not saying, amongst other things, look to the practical operation of the by-law in question?
MR HINTON: He is.
HAYNE J: What other elements do you say we should take out of what is said there?
MR HINTON: Dealing with a purposive power the question is whether or not it could not reasonably have been adopted as a means of attaining the ends of the power. That is, a test that provides greater margin than is it reasonably appropriately adapted?
HAYNE J: The margins, Mr Solicitor, I must say to you, do not appeal to me, the notion of deference, margin of appreciation, all these terms picked up from other legal systems have their difficulties, I think.
MR HINTON: I do not disagree. So does, could it reasonably be considered, is it reasonably appropriately adapted, and so on? What are we looking for? We are looking for a manner in which the power is exercised that is so unreasonable.
KIEFEL J: I think you are adding rather to what Justice Dixon was saying. It might well be that one might describe what his Honour is saying at page 155 as a kind of proportionality test, but it really goes no further than to say that something goes beyond what is reasonably necessary to achieve the end which is within power. It is a test of reasonableness.
MR HINTON: Yes, your Honour.
KIEFEL J: It does not have some of the greater difficulties which attend the questions of limitation upon constitutionally guaranteed freedoms. So you do not need to say margins; that is just an addition which appears, I suspect, from no judgment.
MR HINTON: I may not have made myself clear. I am not saying that that test is the one that is applicable where you are concerned with a constitutional guarantee.
KIEFEL J: Different questions.
MR HINTON: Yes, that is what I am saying. I am highlighting the difference.
KIEFEL J: But there may be a similarity to an extent in the test which is applied of whether something goes further than a power or, in the case of constitutionally guaranteed freedom, further than is permissible.
MR HINTON: Yes.
KIEFEL J: But one is power and another one is a notion of limitations derived in a constitutional setting. That is the difference, I think.
MR HINTON: Agreed, and I am attempting to highlight the difference and at the moment I am concerned with power and the notice of contention, and what else may help us is what Justice Dixon says on 156 in his practical application at about point 5, the ultimate question.
FRENCH CJ: The question we have to ask is whether this is a by-law made for the purpose specified in section 667(1)9XVI. That is really the only question, is it not? Questions of rational connection and reason all feed into that?
MR HINTON: They do, and that is what Justice Gummow makes clear in the Dover Fisheries Case.
FRENCH CJ: There is not some super added criterion?
MR HINTON: There are many ways of looking at it, your Honour is right. This is, it seems, the primary way when we are concerned with questions of is it supported by a head of power?
HAYNE J: Well, it is not primary. As Justice Dixon points out at 154, reasonableness is not a separate ground of invalidity in this. The Court set its face against that early in its life.
MR HINTON: I do not submit anything to the contrary, but where you are dealing with a purposive power as opposed to a subject matter power, something for, not on, then we have these - - -
HAYNE J: There is only one question relevantly: is this by-law within power?
MR HINTON: Yes, your Honour.
HAYNE J: And as his Honour said at 155, it may be “inexpedient”, it may be “misguided”, but the real question is, is it not a real exercise of the power?
MR HINTON: And how do you determine whether not it is a real exercise of the power? When you look at the manner, the way in which it operates, then you begin to introduce a test, and when we introduce a test, we get the notion of, can it reasonably be considered appropriate and adapted to the purpose? That is the test that I say applies to the question of whether or not the by-law falls within the by-law making power.
For the reasons given by Justice Kourakis at appeal book 504-505, we contend, by-laws 2.3 and 2.8 can reasonably be considered appropriate and adapted to the convenience power. That concludes my submissions on the notice of contention. I turn to the appeal. I intend to deal with grounds 3 and 4 at appeal book 524, first. At the heart of each of those, in effect, is the submission that Justice Kourakis’ decision, joined in by the Chief Justice and Justice White, cannot stand with this Court’s decision in Wotton. May I take the Court to Wotton (2012) 86 ALJR 246. Your Honours will recall that this case concerned a challenge to section 132(1)(a) and section 200(2) of the Corrective Services Act 2006, the Queensland statute. Mr Wotton had been released on parole after serving time in prison for offences arising out of the Palm Island riots.
At paragraph [17] of the joint reasons, section 132(1)(a) of the Corrective Services Act and its operation is set out. In addition, its relationship to section 132(2) is made plain in paragraph [18]. At paragraph [19], the Court records the challenge to section 132(1)(a) as being grounded in implied freedom of political communication. That is section 132(1)(a). Turning to section 200(2) of the Corrective Services Act – it is set out at paragraph [12] of the joint reasons. It vests a discretion in the parole board. Just going back momentarily to section 132(1)(a), it of course provided immunity, in effect, from prosecution if you had the permission from the chief executive to carry out the activity mentioned.
The challenge in relation to section 200(2) was that “it authorised conditions (t) and (v)” that were imposed. They are set out at paragraph [16], again, on the basis of the implied freedom.
At this point may I take the Court to paragraphs [9] and [10]? The equivalent provision in South Australia is section 22A(1) of the Acts Interpretation Act. A copy of that section is to be found in our book of legislation at page 530. It is contained in a part of the Acts Interpretation Act that applies also to statutory instruments. Statutory instruments include, in the definition in section 4, which we have not given to your Honours unfortunately, but include by-laws.
In the context of this case then the by-law making power, that is, on our argument, section 246(1)(a) picking up 667(1)9XVI, or 667(1)9XVI operating on 667(1)4I, does not authorise a by-law that impermissibly infringes the implied freedom. If a by-law does infringe the implied freedom it is, ultra vires, the by-law making power. Further, where a by-law vests a discretion in a body or a person, the by-law does not authorise that person to exercise that power in a manner that would result in the infringement of the implied freedom.
In this regard then, in the exercise of a power, consideration – the power, that is, the discretion, the power vested – consideration must be given to the implied freedom of political communication. If a power vested by a by-law otherwise within power, that is the by-law, if a power exercised pursuant to a by-law is exercised in a manner offensive to the implied freedom the by-law is not invalid, but the exercise of the power is beyond power and invalid and that results in it being liable to being set aside on an application for judicial review, that submission is consistent with the joint reasons at paragraphs [21] and [22].
Equally important are paragraphs [23] and [24] of the joint reasons in Wotton’s Case. In my submission, those principles applied to this case have the consequence that if the by-law be susceptible of exercise in accordance with the constitutional restriction upon legislative power, upon the by-law power, then the power it confers is effective in those terms, that is, in accordance with the constitutional restriction.
If the power conferred by the by-law is exercised in a manner contrary to the constitutional restriction, again that does not spell the invalidity of the by-law, but renders the exercise of the power liable to judicial review. I have not taken the Court to the evidence as to the process that is involved in obtaining a permit under the by-law. As we have seen in the course of going through the construction of a by-law, it does not prescribe a process. Whether or not a process prescribed or worked out somewhere else is compliant with the implied freedom does not form any part of this case, nor did it in the courts below.
Turning momentarily to the by-law, its purpose and legitimate end is, as I have taken the Court to, set out by Justice Kourakis at appeal book 471, paragraph 8, and appeal book 504, paragraphs 125 to 128. Neatly encapsulated in that phrase “convenience, comfort and safety”. For the purposes of the Lange test that, we submit, is the legitimate end served by the by-law. Significantly, it is not an end directed – again a point made earlier this morning – at prohibiting or regulating political speech or speech on governmental matters; speech inherently political or a necessary ingredient of which is political. Again, I am conscious of a distinction made in Hogan v Hinch.
It is a by-law entirely consistent with the maintenance of an ordered society necessary to the maintenance of a system of representative and responsible government, as required by the Constitution. In the District Court in this case the first respondent conceded that the first limb of the Lange test was satisfied. The Attorney-General did not contest that concession and that remained the position in the Full Court, and we do not contest that concession in this Court.
The relevant fielding of communication is drawing upon the affidavits of the second and third respondent, communication on government and political matters that could be described as those areas of legislative or executive power that include – or executive, legislative and executive power of the Commonwealth and the States that includes such matters as education, marriage, divorce, matrimonial causes, crime, wherever religion and matters relevant to a regulated society cross; illustrated perhaps, for the purposes of this case, by the concerns of Street Church, with same sex marriage laws at the State/Commonwealth level showing again the web.
But, the relevant burden here in terms of By-law No 4, going back to my submissions when construing it, the relevant burden like that of section 132 is the requirement to seek permission. That is to be found, identified, in the joint reasons at paragraph [28]. Again, we are not concerned with By-law No 1 and so we are not concerned with a burden similar to that identified with respect to section 200(2) in Wotton, namely, the observance preconditions on eligibility for a permit and those imposed in the event that a warrant was granted, paragraph [28].
KIEFEL J: But to say that the burden is the requirement to seek permission is to accept that it is the starting point is a prohibition and that the permission is the way in which one avoids the prohibition.
MR HINTON: I would put it in terms of regulation but the starting point is you need to seek permission, yes, that is the burden, but that is it in the context of this case, the requirement, as it was in Wotton, just the requirement to seek permission. We do not say that there could be a case where that burden is so great that the Lange test would be satisfied. What we say is that is not this case.
FRENCH CJ: You say it is the permission that saves the by-law, do you?
MR HINTON: I say it is the fact that in determining whether or not to grant permission the council must act within power, must take into account the implied freedom that saves the by-law just as that save section 132(1)(d). If it does not or acts contrary then the by-law is not invalid but what you have is an exercise of power that is beyond power, an application for judicial review. We are in the same territory. For those reasons, in my submission, the process of reasoning in the joint reasons in Wotton’s Case decide this case.
Your Honour Justice Heydon dealt with the matter under the first limb. Your Honour Justice Kiefel agreed with the approach of the joint reasons at paragraphs [75] and [88]. Turning to the Full Court’s judgment, at appeal book page 510 his Honour Justice Kourakis commences his treatment of the implied freedom. We do not take issue with paragraph 153, nor 154 on the basis that the third sentence purports to be a restatement, although there is there the potential for distortion. However, 155 makes plain what his Honour has in mind and we respectfully submit is correct.
Again, we do not take issue with paragraph 156. At 157, his Honour turns to the concept of preaching. We not disagree, generally speaking, but they are broad statements tending to go beyond the limited sphere of the operation of the implied freedom. It may be a matter of degree, but we are beginning to stray into the realms of free speech rather than the limited work that the implied freedom does.
So far his Honour has not dealt with the question as to whether the by-law is reasonably appropriate and adapted to the legitimate end he has identified here. Of course, minded of his conclusions at 125 to 128 and dealing with the question of whether or not it falls within the by-law-making power, and minded that he has there applied the higher test, we say, the conclusion should be the same. It is reasonably appropriate and adapted to a legitimate end. The end has not changed nor the method. All we have to do now, minded that he applied the higher bar, is have regard to whether or not it is compatible with the system of government prescribed by the Constitution.
FRENCH CJ: Is it sufficient to define the legitimate end by reference to the purpose in section 667(1)9XVI?
MR HINTON: No, one must go on to consider the manner of its achievement, but just as a statement of purpose.
FRENCH CJ: As a statement of identifying the legitimate end?
MR HINTON: Yes, your Honour. So here the answer should have been as it was in Wotton, in our submission. The burden, the requirement to seek permission, was not incompatible with the implied freedom. At paragraph 158 his Honour turns, however, to consider matters that, in our submission, are irrelevant to the test.
KIEFEL J: Is it relevant to take into account the extent to which the burden operates on the freedom, that is to say, the classes of speech which may be affected by it and the areas within which speech may occur? Having said before that it operates in a sense as a prohibition, is it necessary to take into account the extent to which or the limit to which it restricts freedom of speech when one is approaching the second test in Lange.
MR HINTON: Yes, your Honour, it is. Lange itself demonstrates as much – [1997] HCA 25; 189 CLR 520 – when we turn to the application of the test at page 568. The test is stated at page 567 at point 7. The crucial observation to make is at the top of 568 and the reference to the ACTV Case extent and then the application of the test explained at page 568 at point 5:
That being so, the critical question in the present case is whether –
and, again, toward the bottom and, indeed, the very bottom line –
having regard to the requirement –
I think it was Justice McHugh in Coleman v Power, refers to the importance of the adjectival phrase qualifying – the adjectival phrase being – compatible with the maintenance of qualifying the reasonably appropriate and adapted meant.
KIEFEL J: I suppose on one view the question of the extent to which the burden operates might be relevant to the question whether there are other less drastic means available.
MR HINTON: Yes.
KIEFEL J: You have to understand how the burden actually operates in practice - - -
MR HINTON: You do.
KIEFEL J: - - -before you can answer questions like that.
MR HINTON: True, and equally, you will have considered it as part of the first limb in determining whether or not it is an effective burden.
KIEFEL J: Well, I suppose there is a question there about whether or not you have a burden simplicit and you pass the gateway into the second question or whether or not you go further and ask further questions about the burden. There may be arguments about that but I do not think they particularly arise on this appeal.
MR HINTON: No, your Honour.
FRENCH CJ: You have to bear in mind that this is a by-law about roads and pedestrian malls.
MR HINTON: Yes, used for many purposes on a day-to-day basis to which many people gravitate. Yes, your Honour. In paragraph 158, in our submission, Justice Kourakis turns to irrelevant matters. At paragraph 159 we see the culmination of the straying towards freedom of speech in that pithy sentence:
Members of a democratic society do not need advance permission to speak on political matters.
HAYNE J: Well, are we to understand what his Honour is saying in these paragraphs as at least including the proposition that there can never be a valid law which would require permission to speak on political matters anywhere?
MR HINTON: That is our submission, your Honour.
HAYNE J: With the consequence that someone has a right to block the Hume Highway to make a political speech regardless?
MR HINTON: Mr Wotton did not need permission to give an interview. That sentence I have just taken your Honour to in the interchange with your Honour Justice Hayne admits of no exception and it does not sit with the fact that we do not have an absolute freedom of political communication, but we have one which is subject to the Lange test, and his Honour has not faithfully applied the Lange test. In our submission, had he done so he would have identified the burden and its limited nature. He would have concluded in the same manner as this Court did in Wotton.
But quite independent of Justice Kourakis’ judgment the by-laws, the two clauses, in our submission, are suitable and adapted to the purpose of managing competing interests in the use of the city’s roads. They are not disproportionate in the intrusion they make upon the implied freedom as that freedom can be taken into account as part of the permission process. There is no evidence suggestive here of any need to search for a less drastic alternative. You should not embark upon a search just because there is a burden. More is required.
Even if there was reason then there is no evidence, having regard to the many and varied interests of competing users of the roads in the city of Adelaide, that any such alternative is so preferable – it is not a matter of just finding an alternative but it must be one that is so preferable, or some such descriptor, as to spell invalidity. Justice Kourakis has opted for no regulation at all. That is not compatible with the implied freedom. The implied freedom requires regulation in order that there may be the passing and access to information.
FRENCH CJ: But it would be consistent with a complete prohibition, would it not? You are not allowed to make political speeches in the middle of the road.
MR HINTON: I beg your pardon, your Honour?
FRENCH CJ: You are not allowed to make political speeches or any kind of speeches in the middle of the road.
MR HINTON: That would be fine. You are not allowed to burn a flag in a national park on a day where it is 40 degrees and more would be fine.
HAYNE J: Maybe a possible point of view is that it is important to observe that the by-law is a by-law about where. It is not a by-law about whether you can engage in political discourse. It is not a by-law about what the content of political discourse may be. It is not a by-law about when there can be political discourse. It is a by-law about where, and where in the road.
MR HINTON: We would embrace everything your Honour Justice Hayne has just said and, indeed, that takes us - - -
HAYNE J: That is a very dangerous pastime, Mr Solicitor.
MR HINTON: Nevertheless, we embrace it and of course it brings us back to paragraph 30 of the Wotton judgment and indeed the reference to Hogan v Hinch and the difference between laws that operate directly and those incidentally. We are in the realms of the second. If the Court pleases, for those reasons, in our submission, the appeal should be allowed. Those are my submissions, if the Court pleases.
FRENCH CJ: Yes, we will adjourn until 2.15.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
FRENCH CJ: Yes, Mr Roder.
MR RODER: Thank you, your Honour. Your Honour, the submissions of the Attorney-General for South Australia largely cover the field of the matters that were raised in our written submissions and I am sure the Court will be pleased to know that we do not intend to travel over the same ground and we adopt Mr Hinton’s submissions.
We do have some very brief additional matters to put. First, we have an additional argument about the section 248(1)(a) point that is taken against us. The short point that we make, your Honours, is that the word “purports” in section 248(1) is, in effect, intended to reflect the distinction between an effective and an ineffective exercise of power. In other words, it merely reflects the fact that a by-law will not be made, it will only purport to be made if it cannot be supported by a statutory power. If you go to section 248(1)(a) we say that the effect of the word “purports” is to make explicit what the necessary reading of the section would have been in any event. For instance, if section 248(1)(a) had provided that:
A by-law made by a council must not—
(a) exceed the power conferred by the Act under which the by-law –
is made it would, in any event, have to be read by necessary implication as a reference to “purporting to be made” and this Court has adopted similar reasoning, albeit in a different context, we would accept in the construction of provisions relating to privative clauses. I do not want to read from the authority, it is a different context, but in Batterham v QSR Limited [2006] HCA 23; (2006) 225 CLR 237 at paragraph 26, the use of the word “purported” in a privative clause was described as simply making explicit:
what would otherwise have been the necessary reading of the provision.
We say it has that effect in this case. Your Honours, we point out that the provision which is a provision which is concerned with the authorisation of power is in very similar terms to the ground of review which is available in section 5(1)(d) of the Administrative Decisions (Judicial Review) Act and not only that Act but also like statutory provisions in Queensland and the ACT. The AD(JR) Act under section 5(1)(d) refers as a ground of review being:
that the decision was not authorised by the enactment in pursuance of which it was purported to be made –
We say that is the same use of “purported” as is intended by section 248(1)(a) in this case. It has never been suggested, as far as we can ascertain, that a phrase expressed like that, for instance in the AD(JR) Act would have the consequence that reliance could not be had on an alternative source of power. Indeed, your Honours, we make this point, Mr Hinton referred the Court this morning to Australian Education Union v Department of Education as the latest pronouncement of this Court for the proposition that a mistake as to the basis on which power might be exercised would not preclude reliance on another statutory power. Of course, the alternative power has to be available.
Your Honour, that decision in the Australian Education Union Case referred to a number of decisions, including it cited some observations from your Honour Justice Heydon in Eastman v Director of Public Prosecutions to the like effect that an alternative source of power could be relied on. Eastman was a case under the ACT equivalent of the AD(JR) and also it was a case where alternative claims were made. One was for an injunction, a declaration of invalidity and there was also relief sought under section 5 of the ACT equivalent Act.
Likewise, Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission, which is a decision of the Full Court, which was also cited in the AEU Case, that was an application under section 5 of the Administrative Decisions (Judicial Review) Act, as well as being an application under section 39 of the Judiciary Act. Again, although the precise point that is being raised against us does not appear to have been argued in that case, I do not see that it has ever been contended that the – whether or not you could rely on an alternative statutory provision, would depend upon the common law application of principles or whether a case was going under section 5.
So really we say the section is simply very much like subsections (b) and (c), a statement of common law principles relating – a restatement or a statutory statement of common law principles relating to the validity of by-laws and that it should not be construed as having the consequence that an Act which is otherwise within power is for some reason invalid. So that is our construction. If that construction is not accepted, then we adopt the submission of Mr Hinton that, in any event, the by-law was made under the 1999 Act. Mr Hinton has taken you to section 246.
It seems to us, your Honours, that it is clear that in this unusual situation where the 1934 Act and 1999 Act sit side by side and we have two Local Government Acts, that it was intended that, at least with respect to the power to make by-laws, that these two Acts should be read together effectively, and that there was no distinction to be made as to which Act a particular head of power appeared in. That seems to be reflected in the provisions of section 668 of the Local Government Act which provide that the 1999 Act applies in relation to a by-law under the 1934 Act as if it were made under the 1999 Act, and again it seems to be reflected, in our submission, by the conferral of power in section 246 of the 1999 Act that Mr Hinton took you to this morning.
There were two other points we wished to make about this, your Honours. The first was that, of course, in our submission, a by-law is only made when all of the procedures required for its making have been completed. Section 249(7) of the 1999 Act provides that a by-law is, in fact, made under that section. So 249(7), your Honour - I do not think the Court was taken to that section this morning. You will see that the statute provides that:
A council must publish a notice of the making of a by-law under this section in a newspaper circulating in the area of the council.
We would submit that the statement in the heading to the by-law, that the by-law was made under the 1999 Act, is a correct statement for this reason and for the reasons advanced by Mr Hinton. If the Court pleases that was all we wished to say on that point. On the convenience point again, on the scope of the convenience power that is a matter that has been dealt with thoroughly in Justice Kourakis’ judgment and in Mr Hinton’s submissions.
One point we wish to make, your Honours, was that in addition to the broad nature of the introductory words to section 667, which I think Mr Hinton took you to this morning, being a power to make by-laws for any or all of the following purposes, Justice Kourakis also relied in his judgment on the breadth of the words in the section itself, those being words which do not appear, for instance, in the legislation which was considered in Barry or in the Victorian decisions that followed Barry.
That is dealt with in Justice Kourakis’ judgment at paragraph 60 on page 485. His Honour, before we get to paragraph 60, conducted a thorough history of the various Local Government Acts that have applied in South Australia and equally that was done in the Victorian cases, but the history is quite different.
What his Honour noted was that in the 1880 Act the power to regulate, to make by-laws “for the convenience, comfort and safety of the inhabitants” of the municipality was introduced into the Act for the first time. They were words that were introduced in addition to the good rule and government power which is essentially the description of the power which existed in the Victorian Act and it sat alongside, at least in 1890, the other general power of the council to make by-laws for the prevention and suppression of nuisances. What his Honour found about that was - if we go to paragraph 60 that:
The general grant of by-law making power is given in three parts and is an expansion of the earlier good rule and government provision . . . The second part, “for the convenience, comfort and safety of the inhabitants”, had no earlier counterpart in South Australian legislation nor in the English legislation of the 19th century. It appears to be an elaboration of the matters which the legislature considered to be of general municipal concern.
If I might pause there, your Honours, the reference to “convenience, comfort and safety” was also a feature of the legislation considered by Chief Justice Dixon in Lynch’s Case where his Honour gave the power a broad and fulsome construction. Then, your Honours, his Honour at paragraph 64 refers to:
the concatenation of the three purposes in the final placitum suggests an intention to confer a plenary power –
There is a limit to that phrase. It is obviously not a complete plenary power –
to regulate the competing interests of the residents of urban communities who must live and work at close quarters.
We would submit to respond to changing conditions and circumstances which may not have been foreseen at various times. We would submit that when constructing this provision it is important to recall that it is not just a convenience power, it is a power conferred on the council to make by-laws with respect to important issues such as safety and it would be curious if the council were for some reason not able to make by-laws for those powers, accorded their natural meaning, if circumstances affecting the safety of inhabitants arose.
The other matter we wanted to raise was the scope that has been given previously to the South Australian convenience power. The convenience power, your Honours, was held in Rice v Daire by Justice Bollen – it is a case on my list but I do not want to read from it – to justify a by-law which prohibited preaching in the Rundle Mall. It was held by a Full Court in Samuels v Hall to - - -
FRENCH CJ: These are the cases referred to in your footnote 8 in your oral outline, is that right?
MR RODER: They are, your Honour, and I was not intending to read from them but in our outline, and I have identified the passages in our list of authorities, the judgments of Justice Chamberlain and the judgment of Justice Walters. The convenience power was held either in its own right or with analogous powers to justify a by-law which prevented the distribution of literature on streets in the City of Adelaide. That decision was held to be a valid decision by this Court on an application for special leave to appeal but after hearing full argument as to the validity of the by-law.
FRENCH CJ: Sorry, is that reported?
MR RODER: It is. It is reported in the Australian Law Journal Reports, your Honour.
FRENCH CJ: Can you give us the citation?
MR RODER: Yes. Excuse me, your Honour. Your Honour, could I just continue? I thought we had the citation handy. I will give the Court the citation in a moment, I apologise. Your Honours, even in the Victorian cases, which have followed the dictum of Justice Isaacs, the outcome has been – sorry, I will put this another way. On many occasions there has been a very wide application given to the convenience power even in such cases. For instance, in Seeligson, which was a case that was followed in Leslie, the Full Court of the Supreme Court of Victoria again upheld the validity of a by-law, which would - - -
FRENCH CJ: Well, now, it is necessary to give us citations for the transcript.
MR RODER: Sorry. I apologise, your Honours.
FRENCH CJ: Seeligson v The City of Melbourne, [1935] VicLawRp 66; [1935] VLR 365.
MR RODER: I apologise, your Honour.
FRENCH CJ: Yes. Can you take us to the passage?
MR RODER: Yes, your Honour. The by-law is described in the headnote to the judgment. No person:
“upon any street, footway or other public place” to “give out or distribute to bystanders or passers-by any handbills, placards, notices, advertisements, books, pamphlets or papers.”
There was a second clause providing that:
“No person should litter any street or footway by scattering or throwing down handbills –
Then, your Honour, at page 368 - - -
FRENCH CJ: Now, what are you saying, that this was construed broadly, relevantly to the - - -?
MR RODER: It was construed applying, or at least stating that the dictum of Justice Isaacs was being applied, but by reference to general powers over the management of commons and reserves, powers to make by-laws with regard to the throwing of vegetable matters on highways and a power to prohibit the writing, painting of letters and figures, to justify a by-law of this nature. What I am saying, your Honours, is that even when this dictum of Justice Isaacs has been accepted, given the absence of a clear genus in the powers in the Local Government Act, it has been given a very wide application in many cases.
The last matter I wanted to address on the convenience power was I think there was a question asked to Mr Hinton this morning as to whether there were observations of Justice Kourakis about the application of the convenience power to roads. Justice Kourakis dealt with that matter at paragraphs 120 to 124 of his reasons. It starts at paragraph 120 where his Honour notes that:
All of the regulated conduct involves, or is at least likely to involve in one degree of another, accosting persons using the City’s roads . . . If the regulated conduct is left unchecked, persons who do not wish to be accosted are likely to have to go out of their way –
He refers to other matters, further down the paragraph:
Even though the regulated conduct will not usually amount to a common law nuisance, in my view, it sufficiently interferes with other road users to be analogous to it and is a proper matter for regulation under the convenience power.
Then at paragraph 122 Justice Kourakis deals with the question of whether there is any implied limitation on the convenience power with respect to roads by reason of the provisions of sections 238 and 239 of the Act. I do not want to read from this. We would respectfully adopt his reasoning at that passage.
There was only one other issue I wished to address on, your Honours. We, with respect, adopt the appellant’s submission that this is truly a by-law which is about the use of and activities on roads. These are roads which are under the management of the council but they are vested in the council subject to the right of the public to pass and re-pass over the roads, and the right of the members of the public to convenient pedestrian and vehicle passage over roads is a fundamental right and their primary purpose.
The by-law is directed at a range of activities and we make the point that, although the focus because of the way in which the case has developed has been on preaching, haranguing and the conduct which is the subject of the challenge, there is a whole range of other conduct which people might seek to engage on in roads which could affect the convenience and, indeed, safety of road users which is referred to in the by-law and which is the purpose of the by-law. Matters which are regulated under the by-law include public displays and public exhibitions. They include obstructions
and nuisances. All of them are directed towards the legitimate end that Mr Hinton identified.
We make the point that all of the conduct, or virtually all of the conduct, not only just the conduct which is identified in this case, might conceivably be said to have a political purpose. For instance, busking might be said to have a political purpose if songs are being sung on social themes. An exhibition or a display or even someone putting up tents or camping on public roads might be said to be a form of political protest. We say that the important matter is that it is a by-law about roads and the maintenance of a convenient and safe road for their primary purpose. If the Court pleases
FRENCH CJ: Thank you. Mr Howe.
MR HOWE: May it please the Court, we propose to confine our submissions to the question of the implied freedom of political speech in accordance with the written submissions of the Attorney-General of the Commonwealth. In relation to that implied freedom we propose to address orally only three topics, and very briefly: firstly, the conceptual framework, which we say applies to the adjudication of issues concerning the compliance of legislation with the implied freedom; secondly, how that framework applies in this case and, finally, we propose to put some very brief submissions on particular aspects of the reasoning of the court below.
Dealing firstly with the conceptual framework, the constitutional question as to the operation of the implied freedom itself operates at the level, in our submission, of the primary law-making power and that question asks whether that legislative conferral of power complies with the constitutional limitation. At the level of the delegated legislation, in this case the by-law, a statutory question then arises as to whether the delegated legislation lies within the scope of the primary legislative power, properly construed.
We have dealt with that in our written submissions at paragraphs 5 and 6 and it is dealt with as well in the reasons of the plurality in Wotton v Queensland (2012) 86 ALJR 246, in particular at paragraphs [21] to [24]. Your Honours need not go to it. My learned friend for the appellant took your Honours to that. But in those paragraphs the plurality in Wotton’s Case made clear that if primary – and we would say equally well delegated legislation – makes provision for an administrative decision to be made, such as the granting or withholding of a permit, then questions will arise naturally enough as to whether that administrative decision is authorised by the legislation and otherwise conforms to administrative law requirements.
But in our submission those questions do not pose an independent free-standing constitutional question. A primary power to make delegated legislation may, of course, need to be read down so as not to authorise the promulgation of delegated legislation that would infringe the constitutional limitation. If that occurs then that may result in the constitutional question as to how the limitation applies, coinciding with the statutory question as to whether the by-law is within the scope and ambit of the primary legislation.
We dealt with that in paragraph 7 of our written submissions. Again it is dealt with in Wotton’s Case by the plurality at paragraphs [21] to [24] and also in the separate judgment of her Honour Justice Kiefel in Wotton’s Case at paragraph [74].
I will just give your Honours a reference to it, there is no need to go to it, but it is a point made as well by Justice Gummow in APLA Limited v Legal Services Commissioner of New South Wales [2005] HCA 44; [2005] 224 CLR 322, at paragraphs 103 to 104, and in particular at paragraph 103. On its proper construction, the by-law-making power in issue in this case, in our submission, does not need to be read down.
The power conferred by section 667(1)9XVI of the 1934 Local Government Act is sufficiently confined, in our submission, as a matter of ordinary construction, to comply with the constitutional limitation. That is, properly construed, the power extends only to the making of by-laws that conform to one or other of the limbs of Lange. By virtue of that no further constitutional question arises. One would simply then ask, as a matter of conventional statutory construction, whether the by-law is valid. We deal with that in paragraph 9 of our written submission.
If for some reason the Court is against us as to that in reading down of the primary powers necessary, that power, in our submission, can be readily read down so as to authorise only the making of by-laws that comply with the constitutional limitation, and we deal with that in paragraphs 10 to 15 of our written submission. That, of course, accords as well with the effect of section 13 of the Acts Interpretation Act 1915 (SA).
Now, in the event of the reading down of the primary law, one would then construe the by-law as only authorising administrative decisions which did not stray beyond the scope of the primary legislation. In that regard, could I ask your Honours to have regard to a decision which is not on our list of authorities, but which I think has been made available to your Honours and the other parties, of Wainohu v State of New South Wales (2011) 243 CLR 181, and in particular at page 231, paragraphs 113 in a joint judgment of your Honours Justices Gummow, Hayne, Crennan and Bell this point is made.
Now, in this case, of course, the ground of challenge that was upheld did not relate to the implied freedom, but nonetheless that was a challenge that was agitated in the case and in the joint reasons is something addressed at paragraphs 110 and following. But, at paragraph 113 their Honours made the point that the prohibition in question here, or in that case, did not offend the implied freedom precisely because of the provision made for an exemption from the making of a control order, which was an administrative decision, and because, properly construed, that exemption:
should be construed conformably with the implied freedom so as to render reviewable for error any particular order which exceeded the limited of the implied freedom.
We would also your Honours to note that in that particular case the making of a decision within the exemption, which can be equated here to the granting of the permit, was not a decision that was obliged to be the subject of a statement of reasons, as is the case here. Accordingly, your Honours, we say that whether a process of ordinary construction is applied or whether the primary power is read down, the legislation in this case is ultimately self-respecting or self-accommodating of the second limb of Lange.
That is, the primary legislation satisfies the second limb because it authorities the making of a by-law which in turn authorises only the making of an administrative decision which must have two features. Firstly, the administrative decision must be lawfully made, and secondly, the administrative decision is, in fact, reviewable within the constitutionally entrenched jurisdiction of the Supreme Court of South Australia. In that regard, could I ask your Honours to go to a couple of passages in this Court’s decision in Wotton’s Case that your Honours, I do not think have to this point been taken to.
KIEFEL J: Just before you do that, could I ask – and in this process you would say that in reviewing the decision the Supreme Court of South Australia would apply what test, a proportionality test?
MR HOWE: Well, no, it would even apply more rigorous test of asking itself whether or not the administrative decision did conform to, and it was consonant with, the implied freedom.
KIEFEL J: Implied freedom, but how does it do that?
MR HOWE: Well, it would probably do that by reference to proportionality, which seems to be embraced in the second limb.
KIEFEL J: So, it would undertake the same test that this Court would do if this Court had the question more squarely raised before it. That is to say, if there was not a discretion yet to be exercised which forms part of the by-law power, which puts the question at one removed from this Court, in a sense.
MR HOWE: Yes. Although we rather think that at the level of judicial review of the administrative decision one would not necessarily test the validity of that through the strict prism of the constitutionally implied freedom.
KIEFEL J: Well, that raises a question about whether or not reasonableness then has to bear the same kind of meaning as it does in proportionality, but I am taking you perhaps away from what is necessary to be decided here.
MR HOWE: Yes. In the submission I last put I was rather meaning to suggest that if a decision-maker, for instance, did not necessarily make his or her decision by reference to the specific operation of the limbs of Lange but nonetheless had regard, for instance, to the fact that the common law recognises the important public interest served by free speech then one would rather think that in that process the Supreme Court would be satisfied that the decision-maker did reach a decision that accommodated the implied freedom. Wotton’s Case 86 ALJR 246 - the passages that I would ask the Court to go to appear at paragraphs [32] and [33] in the joint judgment. At paragraph [32] their Honours said:
With respect to s 200(2), the legitimate end, for the second Lange question, is supplied by the text of the subsection, namely the imposition of conditions the Parole Board considers reasonably necessary to ensure good conduct and to stop the parolee committing an offence. The phrase “reasonably considers necessary” in s 200(2) is akin to the phrase “reasonably appropriate and adapted” for the second Lange question. Again, it would be incumbent upon the Parole Board to have regard to what was constitutionally permissible, and the reasoned decision of the Parole Board is judicially examinable under the Judicial Review Act.
Then their Honours expressed in the first sentence of the next paragraph by reference to those features which we say apply here:
The result is that both s 132(1)(a), as qualified by s 132(2)(d), and s 200(2), comply with the constitutional limitation upon the legislative power of the State.
Your Honour Justice Kiefel reached conclusions to similar effect at paragraph [91] and your Honour noted that:
The restriction allows a parole board to attach only such conditions –
by way of administrative decisions -
as are reasonably necessary to the achievement of the objectives of ensuring the good conduct of a parolee –
That was explicit in that case but we say it is implicit, necessarily as a matter of law, to this legislative regime and then your Honour continued the subsection:
therefore imports a requirement of proportionality into a parole board’s decision-making process.
HAYNE J: What might set this case apart from Wotton is that the conduct of the parolee may turn upon the content of the speech that the parolee wished to give, see the particular circumstances of Mr Wotton and the particular issues in which he expressed particular interest in speaking. In the present case how does the content of the proposed preaching, haranguing, et cetera, bear upon the issue of whether permission should go?
MR HOWE: Well, in terms of express provisions of the legislation, it does not and indeed, as your Honour has rightly noted in the course of argument, this proscription or prohibition subject to a permit operates not at all by reference to the content of any communication on its face, but only by reference to place, and that place is distinctive. It is not just any public place or park. It is roads which are subject to competing uses by users, often in large volumes involving vehicular and pedestrian traffic. So in this legislative regime one would expect less trouble or problems arising with respect to the implied freedom than was the case with the legislation in Wotton’s Case. But nonetheless the validity of the legislative regime in Wotton was upheld, even though it did permit decisions to be made by reference to the content of the communications.
Now, it may be here but in a particular case the content of a proposed preaching might be something relevant at an administrative decision-making level and whether or not the decision-maker dealt with that properly would be a conventional issue that would arise in the course of the judicial review proceedings.
KIEFEL J: But that raises the question, does it not, about whether or not, having regard to what the true purposes of these by-laws are, that any question really about the implied freedom of political communication can really be said to, not so much arise, but might create something of a tension? If the real purpose is safety, as has been put to us, safety and the convenience of the public, how does the administrative decision-maker in exercising a discretion apply the implied freedom?
MR HOWE: By attaching weight, in our submission, to the important public interest which would ordinarily attach to freedom of speech recognised by the common law or the general law.
KIEFEL J: Even if – and I am leaving a series of questions – even if safety is a principal issue in the particular case and the particular location of the road?
MR HOWE: Yes, we would not say that necessarily in each and every instance questions as to the importance of freedom of speech necessarily give way to the particular safety considerations.
KIEFEL J: Would prevail.
HAYNE J: But that is the point. You do not get to weigh those points in the decision-making, do you? How does consideration of freedom of speech bear upon whether consent goes? Is not the by-law directed to questions of use of the road? The decision-maker is concerned with the effect that this particular activity will have on the use of the road. That is at least a relevant criterion, is it not?
MR HOWE: Indeed so.
HAYNE J: What other criteria are arguably relevant?
MR HOWE: Well, for instance, the extent to which the safety issues attaching to use of the road can be respected but at the same time accommodate another use which the applicant for a permit asserts. That would be a relevant matter as well.
HAYNE J: That seems to be, if I may say so, Mr Howe, just a restatement of what I had put to you, to no different effect at all.
MR HOWE: Yes. Perhaps we are in agreement because, in our submission, the question of how the implied freedom operates here does not depend upon or direct attention to the merits or otherwise of a particular administrative decision, which is made concerning the giving of the permit.
KIEFEL J: I suppose like a lot of questions in this area the difficulty is not how you pose the correct question. Here if you were having regard to the true purpose and operation of the by-laws in the way in which it has been discussed, that is having regard to the fact that they are roads, safety, convenience of people and vehicles using them, you would have to say, would you not, that the burden on the implied freedom is intended to be quite great because it is going to be hard to achieve those objectives without impinging upon the implied freedom.
Therefore, it might be – I am not saying necessarily it is – it might be more accurate to approach it by way of saying that the burden is intended to be great. It is intended to operate more in the nature of a prohibition, except in unusual circumstances where those matters can be accommodated. Then the question under the Lange second limb then becomes is it a proper and proportionate response to the concerns about that - if they are legitimate ends - about protection of people and convenience to burden the implied freedom in this way? Perhaps the answer is yes, but is that the question that we are really looking at?
MR HOWE: Your Honour puts to me that the burden here can properly be regarded as great and we would resist that.
KIEFEL J: If the purposes are to be achieved because here there is not any other, apart from a prohibition with the possibility of a permission, there is not any other standard set by which you can say that some balance is to be achieved.
MR HOWE: Yes, but in measuring the gravity or extent of the burden, in our submission, it is proper to have regard to the fact that it is only very, very precise and limited forms of communication, which are subject to the prohibition and the requirement to obtain a permit.
KIEFEL J: You mean haranguing?
MR HOWE: Preaching and haranguing, yes.
HAYNE J: Is there not a conflation of two separate ideas there? What do you say the burden is? Is the burden the burden of having to obtain permission?
MR HOWE: That was how this Court characterised the relevant burden in Wotton’s Case and, in our submission, if one is directing attention to the by-law and, in our submission, the conceptual framework starts with directing attention to the primary legislation, but assuming one is concerned with whether the by-law itself satisfies a constitutional question, then it can be posed, for all intents and purposes, in terms of whether or not the prohibition, subject to a permit, is a burden which offends the implied freedom.
KIEFEL J: It might be said in Wotton, at paragraph [31] of the ALJR Report at page 254, that the power of approval was seen, you see in the last three lines of that paragraph, the power of approval under paragraph (d) of the section in question was seen really to govern the operation of the whole section and you could not really describe the burden on the freedom without reference to the approval power, which was really said to manage the whole section. Whereas, I am not sure that the same operation could be given here to something which is expressed more in the nature of a prohibition with an exception of permission, which does not necessarily seem likely to occur.
MR HOWE: Well, with respect, there is a difficulty working back from likelihood of whether the administrative decision will be favourable or not.
KIEFEL J: Having regard to the purposes which are sought to be achieved by the by-laws.
MR HOWE: Yes. Well, with respect, we say that the regime here is at least analogical with the general way the legislation in Wotton’s Case worked, and at paragraph [28] of the joint judgment their Honours said:
The relevant burden imposed by para (a) of s 132(1) is the obligation to seek and obtain under para (d) of s 132(2) the written approval of the chief executive to interview a parolee –
et cetera. With respect, one is asking a direct question as to whether the by-law itself complies with the implied freedom. In our submission, it is tolerably workable to regard the effective burden in the same way in this case as it was treated in Wotton’s Case. But, with respect, we do resist the notion of working back at all from what might happen at an administrative decision-making level, because the conceptual framework that we favour, in our submission, keeps faith with the fact that the implied freedom operates at a systemic level, and it operates as a limitation upon legislative power. One, in our submission, would not answer either of the limbs of Lange by reference to what one might apprehend about the fate of a particular application for a permit.
HAYNE J: Well, the fate of the particular application for permit necessarily begins from the proposition I have a right, individually, to engage in political speech and once you have taken that as your premise things start to fall into place, and that is the wrong premise.
MR HOWE: We would contest that premise. Exactly, your Honour. In our submission, the conceptual framework for which we have contended also has another virtue, and that is that it avoids what we submit is the somewhat non-cohesive reasoning that, with respect, Justice Kourakis succumbed to when his Honour held that the by-law was, in fact, reasonably appropriate and adapted to a legitimate end, but was nonetheless constitutionally invalid.
But can I move on now to the point raised by Justice Hayne, which is the single particular issue in the reasoning in the court below with which we most join issue, and that is the court’s acceptance as an unqualified organising proposition that any legislation which imposes an obligation to obtain permission to speak on political matters is necessarily incompatible with the implied freedom.
Justice Kourakis articulated that bald, unqualified proposition in at least three places in his Honour’s reasons for judgment; at paragraphs 30, 157 and 159. We say two things about that initially. Firstly, it is simply inconsistent, in our submission, with the decision and the reasoning of this Court in Wotton’s Case, and secondly, it treats the implied freedom as a personal right, and it treats that right itself as necessarily governing or absolute.
In our submission, quite apart from the reasoning in Wotton and the misuse of the implied freedom entailed in that qualified proposition, we submit it cannot really prevail against a number of other features and these have been mentioned. We very much emphasise the fact that this regulation operates, in relation to roads, which are distinctive public spaces.
FRENCH CJ: Having regard to that, a lot seems to ride in argument on the permission provision, but what is it about an absolute prohibition in terms of 2.3 without the words “without permission”, that would offend against the implied freedom?
MR HOWE: There would not necessarily be an offence of the implied freedom. In other words, we frankly accept that in some particular context an absolute prohibition could well be consonant with the implied freedom, and an example given by Justice Hayne before lunch was a prohibition of frank and unqualified prohibition, not subject to a permission that people should not interrupt public highways in order to deliver political speeches.
We also do attach significance to the fact that this particular regulation does operate in a field of activity, that is engaging with passers-by in busy public spaces, in this case roads, and it involves regulation in a manner – that is prohibition, subject to approval – which has operated in Australia for over a century and a half without apparent harm to Australia’s representative and responsible government.
In this Court’s decision in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, various members of the Court did attach significance to that. I will not take your Honours to it, but the references are to be found in the judgment of Chief Justice Gleeson at paragraph 32, the joint judgment of Justices Gummow and Haynes at paragraph 158 and the judgment of Justice Heydon at 327. In respect to Justice Heydon’s observations his Honour noted that if you do have regulation in a field of activity, and in a manner, a very long standing duration or pedigree, one is more likely to find the regulation as satisfying the second limb of Lange.
Justice Heydon footnoted his observations, in that regard, to the earlier judgment of Justice Gaudron in Cunliffe’s Case, which dealt with an example of sedition. But, with respect, an event more commonplace and compelling example is municipal regulation of roads and public highways. We also very much embrace the - - -
HAYNE J: Was it a common law nuisance to hold a meeting on a road and thus obstruct the road?
MR HOWE: One would think so.
HAYNE J: I do not know.
MR HOWE: One would think so.
HAYNE J: Well, thinking so and demonstrating so are two different things, Mr Howe.
MR HOWE: It is rather hard to imagine how that would not occasion the sort of harm to public order that the common law or public nuisance is addressed to. Now it might, in fact, depend on some variables of time and circumstance and the like, but certainly an interruption of busy vehicle traffic for the delivery - - -
KIEFEL J: It is more of a nuisance to vehicles and therefore more likely to be a traffic offence, perhaps, rather than a - - -
MR HOWE: It could, of course, be a contravention of a number of other legislative provisions. We very much embrace the proposition that here the legislation does operate, not by way of the imposition of a direct prohibition on any form of implied speech, but only incidentally. Finally, not too much perhaps turns upon this, but we would just note that the bald unqualified proposition accepted by Justice Kourakis and the other members of the court below to which I have been referring is not one which has actually found favour or expression, even in the United States, according to the United States Supreme Court. Indeed, we will not take your Honours to them but we will just give your Honours some references to two cases of Cox Et Al v State of New Hampshire [1941] USSC 78; 312 US 569, a decision in 1941, and also Poulos v State of New Hampshire [1953] USSC 78; 345 US 395, a decision in 1953.
Now, the rejection of that bald proposition, which was accepted in the court below by the United States Supreme Court, has of course to be understood in the light of the distinctive constitutional underpinnings in the US where there is great concern for facial standards and facial neutrality and great judicial concern for so-called unbridled discretions, but of course in Wotton’s Case this Court noted that those sorts of concerns do not find favour here and form no place in the Australian universe of discourse. But even if one were to adopt the US approach, it does not rise so high as to give effect to the unqualified proposition that found favour in the court below. May it please, those are our submissions.
FRENCH CJ: Thank you, Mr Howe. Solicitor-General for New South Wales.
MR SEXTON: If the Court pleases. I wanted to say something briefly about the two Lange questions. As to the first, one of the difficulties in relation to the first question in this case is that there is something of an abstract quality about the communications in question. It will be recalled that in Coleman v Power there was of course a prosecution and we had the actual words that were used in that case. There has been a prosecution here, but that is not the subject of the appeal before your Honours. Justice McHugh said in APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 at paragraph 59:
The first question then is whether the communication falls within the protected area of communication. That is, is it a communication concerning a government or political matter? If the answer to that question is “No”, then the question of whether the law is reasonably appropriate and adapted does not arise.
Now, while the range of subjects that might be described as governing political matters for the purposes of the implied freedom is broad, it does not extend to matters that cannot illuminate the choice for electors at federal elections or in amending the Constitution, or throw some light on the administration of the Federal Government. It is true in this case that the second respondent says that he and the third respondent frequently preached on topics that were of a substantial political nature, but Justice Hayne said APLA at paragraph 381:
the central question is what the impugned law does, not how an individual might want to construct a particular communication -
Arguably, for example, the term “preach” here would exclude any political communications. It would not be true for “harangue” or for “canvass”, but it may be that “preach” with its religious connotations arguably is mutually exclusive with political questions.
I will not take your Honours to the appeal book, but we have set out the references in our outline of oral argument to just indicate that the topics that broadly seem to have been the subject of the preaching - in this case abortion, a matter for the State criminal law; sinners and hell; God and Jesus; homosexuality - once, but no longer the subject of State criminal law - seem to us that any grains of political content in this material would be very sparse indeed, if any.
It is in that context that the question arises as to whether the challenged law effectively burdens communications on government and political matters. This is not a situation where this is a law that is not aimed directly at political communications and as Chief Justice Gleeson noted in Coleman [2004] HCA 39; (2004) 220 CLR 1 at paragraph 27, he said of the statute in that case:
That is true in the sense that threatening, abusive, or insulting words might be used in the course of communicating about any subject, including governmental or political matters. The same could be said about all, or most, of the other forms of conduct referred to in [that statute]. However, the object of the law is not regulation of discussion of governmental or political matters; its effect on such discussion is incidental, and its practical operation in most cases will have nothing to do with such matters.
It is in that context perhaps that the fact that these by-laws are directed to conduct on roads indicates here the incidental nature of the burden in this particular instance.
Now, your Honours, as to the second Lange question, it has already been noted that the city can permit each of the otherwise prohibited activities to take place on an application to do so and that a refusal of such an application could be the subject of judicial review. There is a provision for review by the council itself, which is set out at page 447 of the legislation book, from section 270 of the Local Government Act 1999. The legitimate end here, we would say, is ensuring that members of the community are not subjected to a serious level of disruption or harassment in what are, generally, shared public spaces.
And because this is not a law that is directed to restricting the discussion of government or political matters but affecting, and, if at all incidentally, it is more readily seen to be reasonably appropriate and adapted to that legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system.
If, however, contrary to our previous submissions, the first Lange question was answered “yes” and the second “no”, then there would arise a question of whether the laws in this case could be read down either in the way that was done by Justice McHugh in Coleman, paragraph 110, where that was done to exclude communications of a political and government character or, perhaps, in the way that the legislation was construed in Wotton, to not authorise the exercise of a power contrary to the implied freedom but, of course, it is complicated here by the fact that there has not been any exercise of that power because of the way in which the case has come to that court.
The case of reading down is further complicated. It would be done, of course, under the South Australian Acts Interpretation Act, section 13, because there would be a question which I think has already been raised by some members of the Court as to whether that reading down would be applied to the by-laws themselves, clauses 2.3 and 2.8, or to in a sense the authorising provision which is section 667(1)9XVI of the Local Government Act, in this case the 1934 Act, of South Australia, but as your Honours will see from our previous submissions we do not think that your Honours would need to get to that question of reading down because of the earlier answers that would be given to the two Lange questions. Those are our submissions, your Honours.
FRENCH CJ: Yes, thank you, Mr Solicitor. Solicitor-General for Victoria.
MR McLEISH: If the Court pleases. Your Honour will see from our outline of oral submissions that much of what we wish to address to the Court has already been covered by others but I wish to touch on some aspects of that outline. But before I do that, could I take up the suggestion that your Honour Justice Kiefel made in argument a short time ago about whether or not the burden was intended to be very great in these by-laws.
Our submission is that that cannot be inferred and that is because the purpose of the by-law is not identified solely by the convenience power in this case but also by the purpose identified in the court below of ensuring the orderly and equitable allocation of public space and time.
In other words, the by-law is directed to enabling the council to manage the use of roads as defined and whether or not that management extends to the use of roads for making speeches or doing the other things that require permission under the by-law is ultimately a matter for the council. We resist the suggestion that it would inevitably be very hard to get permission. It would depend, we would submit, on the location in question, the time, whether the location was in a very busy thoroughfare or on some steps that were set aside from where most people passed, whether it was on a footpath or a road on the weekend or a week day, matters of that sort.
So we submit it cannot be inferred from the terms of the convenience power itself that the burden is necessarily very great. Rather the aim of ensuring convenience and safety reflects the power of the council to allocate public space, the use of public space and time for multiple purposes, as the council sees fit.
I do not want to say more about Wotton, your Honours have heard a great deal about it which is consistent with what we say in our written submissions. We did want to make some observations though about the relationship between the Williams test, if I can call it that, and the implied freedom. It is significant in this case because, as the submissions for the appellant explained, the court below analysed the first of those questions in terms apt to answer the second of them.
Both the Williams test and the implied freedom are directed to the same question, namely whether the by-law is beyond power. Wotton, of course, is authority for the proposition that the implied freedom is about that question. It is axiomatic that the Williams test is also about that question and as with any question of that nature the first task is to construe the by-law. As we apprehend it there is not any controversy in this case about construction of the by-law, but we did want to note the potential relevance of the principle of legality in construing the by-law.
We have made a reference to Evans in New South Wales in our submissions at paragraph 9 and also in the oral outline; that is [2008] FCAFC 130; 168 FCR 576 and I do not need to take the Court to that. But the point made in the joint judgment in that case is that the process of construing the by-law and identifying the proper scope of the empowering provision are interdependent. It follows, therefore, that any conclusion that the by-law was beyond power would feed back into a question of construction. We do not want to say more about that, given that there is not a controversy about the construction in this case.
We have not made written submissions on the Williams question whether the by-laws are reasonably proportionate to the enabling power, but we have made the submission that the conclusion of the Full Court in relation to that question dictates the answer to the implied freedom question in this case, albeit that the - - -
FRENCH CJ: That is to say that if the by-law – is that right – the by-law validly meets the purpose of the by-law-making power that also answers the second Lange question?
MR MCLEISH: Yes, your Honour, in this case. Part of the reason for that is that common law freedoms or fundamental values inform the Williams test itself, and that is made clear in Justice Kourakis’ judgment in particular at paragraph 110, where his Honour cites Chief Justice Mason in Nationwide News v Wills, explaining the requirement of reasonable proportionality, and in the last sentence of the quotation at paragraph 110 Chief Justice Mason says:
In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression.
Indeed, something similar to that was said as long ago as 1898 in Kruse v Johnson, as Justice Kourakis sets out from the judgment of Lord Russell at paragraph 106 of the judgment below. The same quotation from Chief Justice Mason also appears in the Dover Fisheries Case in Justice Gummow’s judgment at pages 576 to 577. For that reason, it is submitted, that the Full Court’s reasoning upholding the by-laws as a reasonably proportionate exercise of the convenience power should have led it to reject the implied freedom challenge and find that the law was within the range of permissible legislative choices.
KIEFEL J: But the answer to that question does not necessarily tell you what the effect upon the implied freedom is. That is the second question in Lange is it not?
MR MCLEISH: It does not necessarily, your Honour, but - - -
KIEFEL J: Are you saying it does in this case?
MR MCLEISH: In this case, and perhaps I need to take your Honours a little more to paragraphs 125 to 128 of Justice Kourakis’ reasoning, which is where we say that this is borne out. Among other things, Justice Kourakis says at paragraph 126:
Requiring persons who propose to engage in the regulated conduct to obtain permission will directly advance the convenience, comfort and safety of the inhabitants of the City.
Towards the end of that paragraph he says –
The requirement to obtain permission is not a disproportionate response to the problem. Rather, it is a measure calculated not only to ensure that road users are not faced with a barrage of spruikers but also to afford those who wish to disseminate their opinions on the roads an orderly system and opportunity to do so.
So, his Honour has taken account of the peoples’ wish to disseminate their opinions at that point, and in paragraph 127 he refers to:
The inconvenience to road users, the consequential little problems and the orderly allocation of space and time to those who wish to disseminate the material, are reasons which sufficiently justify the regulation of this conduct.
So, again, emphasising orderly allocation of space and time but also taking note of the wishes of people to disseminate the relevant material. At paragraph 128 – and this is an important passage - his Honour says that:
Limitation by reference to distance . . . does not address the other purpose of the by-law which is to allocate space and time equitably between those who wish to engage in the regulated conduct. A permit system avoids what might be described as the “Olympic system” where the fastest, loudest, or most numerous prevail.
In our submission, his Honour there has looked at the way in which the by-law operates with respect to people wishing to exercise at least common law free speech rights, and by virtue of that the same answer ought to have been reached in relation to the second limb of the Lange test. When his Honour comes to applying the Lange test references to the orderly allocation of space and time are no longer present and we submit his Honour fell into error there by denying the legitimacy of that as a constitutional purpose for the reasons which the Solicitor for South Australia has already advanced.
KIEFEL J: Is his Honour saying any more than there is a need for regulation?
MR McLEISH: His Honour is saying that the manner of allocating “space and time equitably” is proportionate to the - - -
KIEFEL J: But you do not find that within the regulation.
MR McLEISH: I am sorry, I will start that again. The regulation is proportionate to the purpose of allocating:
space and time equitably between those who wish to engage in the regulated conduct.
That is what he says at paragraph 128 and we would extrapolate, of necessity, and between those who wish to use the roads for other purposes. Of course, the roads have a primary purpose as already has been put today but his Honour in these paragraphs recognises that there are other legitimate uses of the road but holds that creating a permit system for the orderly use of the roads for those various users is proportionate to the power.
CRENNAN J: Is he not referring to equitable allocation as between those who wish to engage in the conduct only, not as to them and other groups who just wish to use the road for other purposes?
MR McLEISH: I think not, your Honour, with respect. In paragraph 126 his Honour at line 3 on page 367 of the report halfway through the paragraph said:
Plainly enough the convenience, comfort and safety of the inhabitants would be adversely affected if there were no limit on the - - -
CRENNAN J: I was really referring to what he said in paragraphs 127 and 128, with that emphasis on the “orderly allocation of space and time”.
MR McLEISH: But it is all in the context of roads and the inconvenience to road users.
CRENNAN J: As at the end of 126?
MR McLEISH: Yes, and 127. It is an orderly allocation of space and time amongst those wanting to engage in a regulated conduct but inevitably it is for the purpose of avoiding inconvenience to those who want to engage in unregulated conduct, or in conduct not regulated by these by-laws, so that the council, one would take it, would take into account all legitimate users of the roads in deciding whether or not to - - -
KIEFEL J: Does that involve something of an assumption about how this would be approached? I mean, orderly allocation, you do not find that in the language of the by-law. You do not find it necessarily in the purposes either. It has all notions of equitable allocation of space about it, but that might not be how it is in practice in proper local governmental functions gone about at all.
MR McLEISH: Well, the creation of a permit system of itself is a system for the allocation of space and time. As your Honour says, how that is administered may or may not be orderly or equitable but, in our submission, the very idea of creating permits and giving the council the control in advance of the various uses that might be made of roads other than for traffic points to a desire for an orderly allocation. True, the way in which the by-laws are administered might not live up to that, but that would be a separate question I think as –
KIEFEL J: I accept that how they might be allocated in practice at one level is not relevant here, but really the assumption to which his Honour alludes appears to underpin his approach to the by-laws themselves whereas really the purposes here suggest that the matters of safety and convenience might make “permit” rather more exceptional than is the case in the normal course of permits in other spheres.
MR McLEISH: There are certainly the primary uses of the road always to take into account, and footpaths, and that is why I submitted at the outset it might depend on where or when the regulated use/conduct was sought to be conducted or to take place and whether it was at a time when a nearby shop was closed or open, matters of that sort, whether it was in the mall or in the middle of a main street. But I resist the suggestion that it would necessarily be exceptional. That again would be a matter for the council and it is submitted that safety and convenience is achieved by allocating different uses of the roads, whatever they may be, whether it is for traffic or for other purposes, and bearing in mind of course there is a mall as well in this context.
Finally, the court below did place some reliance in dealing with the second limb on what it called in paragraph 158 of the judgment a substantial likelihood that from time to time the constraints imposed by the constitutional freedom would be infringed in the administration of the by-law. All we wanted to say about that is that not only is the discretion not unbridled as Wotton tells us at paragraph 10, but the bridle on the discretion is very real, as Kirk and other cases show. So error, on the part of the council in its administration of the by-law or undue delay would be capable of being corrected by judicial review or, of course, misconstruction of the by-law so as to give it an operation that exceeds the power of the Parliament, in respect of the implied freedom, would also be able to be corrected.
We referred in the written submissions to Evans in that regard as an example of someone wishing to engage in speech, engage in the court’s processes in order to attend to an infringement certainly of common law rights.
HAYNE J: The epitome of the reasoning, which underpins 158 might be seen in the last two sentences of 159 which seemed to, on their face at least, say that there is an individual right.
MR McLEISH: Yes, your Honour, we have submitted likewise that the judgment at that point moves into language redolent of an individual right. We otherwise adopt our written submissions, if the Court pleases.
FRENCH CJ: Thank you. Solicitor-General for Western Australia.
MR DONALDSON: Your Honours, we have provided a short outline of oral submissions. Your Honours will have seen that from the oral submissions and the written submissions that have been filed the submissions which we have made in this matter are largely to the same effect as the submissions of the other interveners. Can I make one observation, by way of oral submissions, your Honour, and that is in respect to the terms of by-law 2.3 where although my friend, Mr Hinton, referred to it your Honours will be aware that that by-law has two provisos. One of them relates to taking surveys, opinion polls and the like during the course of elections. The other is that the prohibition, which is the terminology that has been used today does not apply in an area designated by the council as “Speakers Corner”.
In our submission, if regard is had to what this Court said in Wotton at paragraphs [22], and in particular [23], which your Honours have been taken to on a number of occasions today, in determining the validity of those provisions regard ought also be had to the fact that the council has a power of designation of an area as “Speakers Corner” and that power is relevant to a characterisation of that provision for the purposes of the second limb of the Lange question.
HAYNE J: Well, mandamus would not run to compel designation, would it?
MR DONALDSON: If it was a mandatory matter, that is, if the Lange inquiry was a mandatory matter to which the decision-maker was required to have regard, and if it was established that regard was not had to it, then it would be, your Honour. In any event, the alternative to that is that the provision could be read down in the manner that we have identified in our written submissions, in the event that there were a prosecution for contravention of the provision. But, in our respectful submission, in addition to the matters that have been raised by the other interveners, regard ought be had to the existence of the first proviso for the purposes of the second Lange question, if your Honours please.
FRENCH CJ: Thank you. Yes, Mr del Villar.
MR DEL VILLAR: Your Honours have already been taken to the case of Wotton v State of Queensland and I am not going to take your Honours to that again in any detail. I simply wanted to make a number of points, as it
were, to supplement the submissions of the appellant. The first, your Honour, is that it seems to be suggested by the third respondent, in particular at paragraph 32 of their submissions, and at paragraph 43 and 42, that there are essentially insuperable difficulties to obtaining effective judicial review of a refusal to grant a permit under clauses 2.3 and 2.8, or the imposition of unsatisfactory conditions on any such permit.
In response to that, your Honours, can I give your Honours two references. The first is to the case of Avon Downs Proprietary Limited v Federal Commissioner of Taxation, which is reported at [1949] HCA 26; 78 CLR 353, and it is at page 360 in the judgment of his Honour Justice Dixon. The other reference to which I need to take your Honours briefly is the judgment of your Honour Justice Heydon in the case of Minister for Home Affairs for the Commonwealth v Zentai, which is reported at [2012] HCA 28; 86 ALJR 930, and it is at paragraph [94] of that judgment. Now, at that paragraph, your Honours, his Honour Justice Heydon points out that while:
The publication of reasons certainly helps those who wish to challenge administrative decisions . . . it is not essential –
His Honour then lists a number of ways in which one might find out information which would assist in launching and obtaining effective judicial review. Your Honours, having made those points I can deal briefly with points 2 and 3 in my oral outline, and the first point is that there is no requirement that the implied freedom actually demand, as it were, specific criteria by reference to which a discretion granted under an Act must be exercised in order to comply. An example of that is Wotton’s Case in relation to section 132(1). There was no express criteria there.
The second point is that any delay or expense inherent in an application for judicial review by itself will not fail or indicate that there is a failure to comply with the second limb of the implied freedom. And, can I just give your Honours the references in Wotton, at paragraph [31] where the joint judgment refers to judicial review under the Judicial Review Act, and at paragraph [88], where your Honour Justice Kiefel refers to judicial review, it can hardly be said that judicial review will take place instantaneously or without expense. Can I give your Honours also the reference to a case on the first amendment which makes, essentially, the same point and that is Poulos v the State of New Hampshire. You will see the reference in my oral outline.
Your Honours, can I now turn to the fourth point which is, it seems to be suggested by the third respondent at paragraph 43 of their submissions, that Wotton should be distinguished on the basis that that case concerned a parole condition direction at one man. I have attached, your Honours, to the oral outline the written submissions of Mr Wotton and,
as one can see from looking at paragraphs 40 and 50 of those written submissions, the argument was made rather more broadly than that. Your Honours, other than those matters, I rely on paragraphs 11 to 15 of the written submissions.
FRENCH CJ: Thank you, Mr del Villar. Yes, Mr Reynolds?
MR REYNOLDS: Thank you, Chief Justice. If the Court pleases, I might start by dealing, if I may, with what might be called the preliminary report, which my client advances by way of notice of contention. And that is an argument based upon section 248 of the Local Government Act 1999 (SA). We have provided at least annexed to the affidavit of Mr Bourke some written submissions. If your Honours do not have that handy, we have got additional copies here that I can provide to you. I might as well hand those up since they have been photocopied.
FRENCH CJ: Sorry, this was just exhibited to the Bourke affidavit?
MR REYNOLDS: It was in there and I – there are a couple of reasons that I would like to take your Honours through this. The first is a surmise on my part that with the enormous documentation that your Honours received, since it was only annexed to an affidavit, might have been one of the things that fell through a crack.
FRENCH CJ: No, it has been seen, Mr Reynolds.
MR REYNOLDS: The second is that the arguments which we have put in the document have not, we submit, really been confronted by the Solicitor-General for South Australia. Your Honours will see the text of the section is in paragraph 3 and the key provision which your Honours will be familiar with at some level is in section 248(1)(a). The important word in paragraph (a) is “conferred” – a word which did not find much prominence in the Solicitor-General for South Australia’s submissions.
I would just emphasise that. The other thing I would like to emphasise is a point made in paragraph 5 that it was not challenged by the Solicitor-General that this was a provision where an act done in breach of the provision renders the relevant by-law invalid. So there is no issue of the kind that your Honours are familiar with, for example, from the Project Blue Sky Case. The reason I underline that is that it is clear from the text of the provision and in particular from subsection (3) which is on page 1 of our submissions that this provision is intended to affect the validity of by-laws. So it is an important provision and one which the by-law makers need to take proper cognisance of and keep in mind when they are making the by-laws. The submission which we have made is encapsulated in paragraph 6 and we have tried to put that there very simply, but the point that I would emphasise in paragraph 6 is the one in (ii) and that is this:
the only by-law making powers “conferred” by the 1999 Act are those found in ss.238-240 -
We perhaps do not need to actually go to the text of sections 238 to 240, but they are in the book of legislation. Your Honours can see, or look at in due course, that those sections create a by-law making power of the kind that your Honours have seen in section 667 of the 1934 Act.
HAYNE J: And what are the words that create that by-law making power, Mr Reynolds, “a council may make by-laws”?
MR REYNOLDS: Quite.
HAYNE J: Yes. What do we find then in 246(1), “a council may make by-laws”?
MR REYNOLDS: Yes.
HAYNE J: What is the point?
MR REYNOLDS: Well, the point is that they have already had these powers conferred under the 1934 Act. That is the point we make in paragraph 9. My learned friend in his submissions has repeatedly made the point that the conferral of power – and there can only, we submit, relevantly be one conferral of power – was the conferral of power under the 1934 Act, relevantly by section 667(1)9XVI - that is where the council got its power from - and before the 1999 Act existed those powers had relevantly already been conferred on them.
In answer to your Honour Justice Hayne’s question, or implicit in your Honour’s question, is the issue of, well, what is the purpose of section 246(1)? If your Honours go to the annexure to our document, your Honours will see the provision my learned friend relies on in subsection (1) which we submit – and this is a point we have made at paragraph 16 – acts as a form of preamble or recital to the particular provisions which follow in subsections (2) through to (7).
So, what the legislature is doing here is, in effect, saying whereas the council has by-law-making powers which have already been conferred by regulation or by other Acts, and there are quite a few Acts under which councils can make by-laws, we note that no matter what the source of that by-law-making power, the following regime, which is set out in subsections (2) to (7), applies to the by-law-making powers that councils have no matter what the source is, and that is a point, in fact, my learned friend made, I think, in relation to section 668 of the 1934 Act, and that is to some extent the two Acts do need to work together. So, that is the purpose of saying – to answer your Honour Justice Hayne’s question of using that phraseology – is not to confer but rather to acknowledge the existence of these by-law-making powers derived aliunde.
HAYNE J: How is that consistent with 246(1)(b), which contemplates the making of new regulations conferring new subject matters of power?
MR REYNOLDS: Well, your Honour, I submit there is nothing inconsistent with it because these provisions, subsections (2) to (7), are meant to have an ongoing operation, and they will relate to powers that have already been conferred on councils, and perhaps will be conferred by other regulations or, for that matter, other Acts. But, the whole point about these provisions in subsections (2), (3) to (7) is that they relate to by-law-making powers, no matter where they come from and whether they be by-law-making powers which are extant as at the passing of this section, or whether they are to come into being in futuro via other regulations or via other Acts that give the council power to make by-laws.
Now, this – and this is the point we make in paragraph 10 – is obviously supposed to be an important provision. It is not meant to be something that the draftsmen, whether he be, relevantly, the solicitor or someone at the council, is meant to be able to treat with a sort of nudge and a wink. Now, if my learned friend’s construction of this provision is right, what it means is that anyone drafting a by-law for the council knows this – if your Honours accede to my learned friend’s submission – that provided he puts a form of mantra at the top of the relevant document, whether it be the by-law or the solicitor’s certificate, this particular by-law purports to be made under the 1999 Act, then he knows that he will never, never fall foul of section 248(1)(a) because it will always be within the 1999 Act. Why? Because this Court has held that the powers, in effect, under the 1934 Act are conferred also, or somehow, by section 246(1).
Now, that would, in my respectful submission, make this provision virtually nugatory, in fact it would nugatory, because it would never have any effective bite at all. As long as you put that on either the top of the by-law or on the solicitor’s certificate.
This provision is meant to have bite, it is meant to have so much bite that if it is not complied with it leads to invalidity. It is not meant to be something that can be, as I say, winked at by simply having this incantation on the top of every by-law knowing that no one will ever be able to take the point that this particular by-law infringes section 248(1)(a).
KIEFEL J: But is it the effect of your argument that if a by-law identifies a wrong source it is to be taken to exceed a power even if it is conferred validly elsewhere?
MR REYNOLDS: If the wrong Act is indicated as the Act under which it purports to be made, and I assume your Honour is saying this as in this case, that the Act might have been validly made under another enabling provision, yes, it is invalid.
KIEFEL J: But that does not really answer the question with which the section is concerned, and that is whether or not there is been an excess of power.
MR REYNOLDS: Well, your Honour, there is an excess of power by reason of this provision, in effect, because that is what the legislature is saying, is that once a power is nominated, or relevantly a particular Act is nominated, then to be within power you have to come within that Act.
FRENCH CJ: It is a kind of manner and form provision, you are saying, for validity?
MR REYNOLDS: Sort of, yes, your Honour.
FRENCH CJ: You have to name the Act under which you are acting, you say?
MR REYNOLDS: Yes, your Honour.
KIEFEL J: And you have to get it right.
MR REYNOLDS: You do and that is the effect of the provision.
FRENCH CJ: Now, the purpose of the provision is what you state in 15, is that right, of your outline?
MR REYNOLDS: Also 16, your Honour. Sixteen is the more important purpose, and that is that there is an introduction in subsections (2) to (7) of a regime, and to put that in context - - -
FRENCH CJ: I am talking about the purpose of 248, which is what you are addressing in paragraph 15.
MR REYNOLDS: I am sorry, I beg your Honour’s pardon. I have answered that wrongly.
FRENCH CJ: It seems you are formulating the purpose in terms of being within power.
MR REYNOLDS: That is part of it, certainly, your Honour. But, there is also another aspect of this and that is that there is within section 247, which is also annexed to our submissions and this is not a – if I may use this word – a mandatory provision, that is, it does not entail invalidity if it is breached. But the legislature has said here, in 247(a), that a by-law must:
be consistent with the objectives of the provision that authorities the by-law and accord with the provisions and general intent of the enabling Act –
In paragraph (b)(ii), it cannot:
make unusual or unexpected use of the power conferred by the enabling Act –
Now, there are various – and we have mentioned this in the submissions – there are various reviews that have to take place – this is at paragraph 12 – inter alia, by the legislative review committee, and their job, along with the job of various other people, is to make certain that they review a by-law or draft by-law to make certain that it accords – picking up the words of 247 – “with the provisions and general intent of the enabling Act”.
So, in order to make that work properly one needs to be able to identify the enabling Act. What is the enabling Act relevantly? We submit it is clearly the one under which the by-law purports to be made otherwise the person attempting to look at a review of 247(a) has to go on a sort of Easter egg hunt around the various statutory provisions that might be used in order to pass by-laws for the Council, and as we have said in paragraph 12, there are quite a few of those.
So we submit, in order to make sense of this regime and to make sense of this particular provision in the context in which it appears, and to provide a construction that does not render the provision nugatory and treats it as being as important as the legislature has said, then it must have the construction which, we submit, should be given to the provision. If it is convenient, your Honours, I would like to make a start on an analysis of what has been called the convenience power. I probably will not finish it, but I will make a start of it. We have dealt with this in our written submissions at paragraphs 52 through 62, and it will not have escaped your Honours’ notice that we, in effect, run through the judgment of the Chief Justice Sir Owen Dixon in Lynch v Brisbane City Council in order to get to the key case which we submit your Honours would need to analyse in order to determine the construction of this convenience power.
Now, if I can take your Honours very briefly to the Lynch Case – that is Lynch v Brisbane City Council [1961] HCA 19; (1961) 104 CLR 353 – I think I probably need, in the light of my learned friend’s analysis of this case, to take your Honours briefly to the bottom of page 363, where Sir Owen Dixon, after referring to the ultimate provenance of provisions in this form – that is the Municipal Corporations Act 1835 – refers to the decision of the Full Court of the southern capital in Leslie v City of Essendon and he notes that the powers considered very fully by three judges in, as he says:
learned judgments giving the history of the subject which will repay study.
His Honour then goes on to note the restrictive interpretation which was given to the power in that case and, I submit, quotes the statement at about point 2 on page 364 from Justice O’Bryan, with evident approval. Justice O’Bryan, as he is there quoted, talked about:
a power to make by-laws for one purpose only –
and, of course, that is not the case here - having to:
be interpreted in a very different way from a power expressed in like language but which is preceded by a power to make by-laws for thirty-two separate and distinct purposes, all or most of which are concerned with the good rule and government of the municipality. Apart from any authority, I would think it is impossible as a matter of ordinary interpretation to give to –
I interpolate, the convenience –
its full and natural meaning as though it appeared in a statute without any specific powers preceding it.”
He says:
I would think that it is impossible as a matter of ordinary interpretation to give to [the convenience power] its full and natural meaning as though it appeared in a statute without any specific powers preceding it.
Sir Owen then notes that the context in this particular case is very different and we perhaps do not need to note more about that context other than to note from the headnote on page 353 that there were very few powers at all there and there was more than one reiteration by the legislature that the nominating of specific powers was not to limit the generality of the other powers including the convenience power. But there is an obvious lead-in, I submit, for anyone looking at this topic in a situation which is more akin, in terms of statutory context, to the decision in Leslie’s Case.
I would like to look at that case to conclude today very briefly. I will try and take your Honours briefly to the most important bits and I will not be very long about it. This is the decision in Leslie v City of Essendon [1952] VicLawRp 31; [1952] VLR 222, a decision of Justices O’Bryan and Sholl, and also with a judgment from Mr Acting Justice Coppell. Now, in that case there is a quotation at 226, at about point 6, which is the quotation which Sir Oxen lifts and quotes in Lynch’s Case, but it is also important to note what the High Court had said in a couple of earlier cases, and that is clear from page 227 at about point 3 where there is a quotation from Justice Isaacs decision in Barry’s Case, where he said this:
It –
that is the convenience power –
confers a power, not of extending the other powers, but of aiding them if need be or of making independent ordinances in matters ejusdem generis with the specific powers of the Act.
Further down the page, Justice Higgins is quoted as saying:
that full effect can be given to the general power . . . without treating it as enabling the council to destroy the common law right of walking in procession.
Justice O’Bryan also notes an adoption by Mr Justice Starke of Justice Isaacs’ judgment, relevantly in Williams v Melbourne Corporation – this is about point 6 on the page – where Justice Starke said that –
These powers . . . are separate and independent, and not restrictive one of the other. But the power to make by-laws for the purposes of maintaining the good rule and government of the municipality “confers a power not of extending the other powers, but of aiding them if need be or of making independent ordinances in matters ejusdem generis with the specific powers of the Act.”
Just pausing on that page, there are three themes there; the ejusdem generis use, not extending the other powers is the other point and thirdly that they can be used to aid other powers.
FRENCH CJ: Well, on this approach, it is an incidental power plus.
MR REYNOLDS: Basically, yes, but you have got to keep an eye on whether you would be extending or overriding a limitation in another enabling provision, or you can perform an ejusdem generis operation, which the Solicitor-General for South Australia has disclaimed. But can I just make this point? Your Honours will notice that none of these points we have just dealt with on page 227 have been approaches which the Solicitor-General for South Australia has adopted, instead of which we had what, I submit, is a rather unusual reference to a notion of analogy, that is, using the convenience power in order to make by-laws by analogy, I think he said, with the nuisance power, quoting from Justice Kourakis.
We say that that form of analysis of the convenience power is not supported, certainly by this authority, and not supported by any authority my learned friend has cited and for whatever it is worth, I am not aware, nor are my juniors, of any case which supports the proposition of analogical reasoning of the convenience power.
HAYNE J: Now, if it is to be ejusdem generis, where is the genus derived from? Wholly the 1934 Act, or are all powers conferred on local governments by whatever Act?
MR REYNOLDS: Yes. It is an interesting question, with respect, that your Honour raises. I would submit that given the operation – I think it is via section 668 in the 1934 Act – that it could be ejusdem generis with the powers derived from any Act. But as I say, that is not an argument which has been presented to your Honours. Indeed, the Solicitor-General for South Australia, as I understood him – and this is my note – disclaimed an argument based on the ejusdem generis principle. Chief Justice, I see the time, if that is convenient.
FRENCH CJ: Yes, all right. The Court will adjourn until 10 am tomorrow.
AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY,
3 OCTOBER 2012
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