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High Court of Australia Transcripts |
Last Updated: 5 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 WEDNESDAY, 3 OCTOBER 2012, AT 10.15 AM
(Continued from 2/10/12)
Copyright in the High Court of Australia
____________________
FRENCH CJ: Yes, Mr Reynolds.
MR REYNOLDS: Yesterday evening, just before we adjourned, I had taken the Court to the decision of the Full Court of Victoria in Leslie v City of Essendon [1952] VicLawRp 31; [1952] VLR 222. Can I take your Honours briefly back to that decision which, we submit, is the closest and the most authoritative decision in a statutory context similar to that before your Honours.
The key passages in the three judgments are, apart from those I referred your Honours to yesterday, in the judgment of Justice O’Bryan at page 228 from about point 6 on the page down to about point 8 and I will just paraphrase some of this portion. Your Honours see the paragraph beginning “I am, therefore”. His Honour there applies what was said by Justice Isaacs and by Justice Starke in the passages I took your Honours to yesterday and then there is this important paragraph that, so interpreted, the by-law cannot be upheld as an independent - on the basis that the enabling provision is an independent power. The power can be construed as a power to aid another clause and he then talks about the “ejusdem generis” principle, which is not relied upon by South Australia here.
Now, the other judge in the majority was Mr Acting Justice Coppel and the relevant or the key passage in his Honour’s judgment is probably at about point 5 on page 247, the sentence beginning “And in the third place” which I will not read, your Honours, other than just the tail end where he says:
it does not extend the scope of any of the specific powers beyond the limits laid down by the Legislature.
If your Honours go to page 235, Justice Sholl, at the bottom of the page, talks in similar terms about what I will call the “in aid of” principle. This is the last eight lines beginning “Thirdly” where he talks about “in aid of” and “mere machinery provisions” and then he talks about “subject of a character similar”, et cetera to “a specific power”. Your Honours will see at page 236 at about point 3 that his Honour plumbs for the third alternative that he outlined in the passage I took your Honours to a moment ago.
Now, your Honours, in what I will describe as your Honours’ leisure, can read obviously the rest of the judgments here, but we submit that the judgments in this case at varying levels lend some support for a number of propositions which are relevant mutatis mutandis to the present case.
The first proposition is that this convenience power is not to be read as an independent power. That is the effect of what Justice O’Bryan said in the passage I took your Honours to, and that is also the general effect of the other two judgments. Secondly, there is repeated reference – I am sorry, may I go back a step. Your Honours will recall the effect of the judgment of the Full Court of South Australia at paragraph 98 is to treat this power as an independent power and to treat it as a power of fulsome generality. Secondly the power, according to the Full Court of Victoria, cannot be used so as to extend other powers. That is apparent from pages 227, point 3; 247, point 6; 235, at about point 9.
Now, can I just briefly remind your Honours about some of the other powers here? The main one in the 1934 Act is the nuisance power and the Full Court dealt with this, relevantly, at paragraph 43 and found that - I need not take your Honours probably to the text, but found that this by-law was ultra vires the nuisance power and the effect of the reading given by the Full Court of South Australia to the convenience power is, in effect, to extend the nuisance power beyond anything which could possibly be conceived to be a nuisance.
The other relevant matter in terms of restrictions and other powers is that in the 1999 Act there are provisions in section 239 – this is in the legislation book at page 424 – 239(1)(b), (c) and (d), (b) and (d) in particular. In particular, (d) talks about, “soliciting for religious or charitable purposes”. Your Honours will see that the effect of the reading given by the Full Court of South Australia to the convenience power is to extend that power, in substance, beyond its metes and bounds. Likewise, paragraph (b) - “the broadcasting of announcements or advertisements”. I think those powers were originally relied on at first instance but they are not matters and powers relied upon before your Honours.
Thirdly, there is the ejusdem generis principle referred to at pages 228, 235 and 247. The power enables the making of ordinances in matters ejusdem generis for the specific powers of the enabling Act. That, as I say, is not suggested here. Fourthly, their Honours talk about using the power in aid of other powers. That is particularly at page 228, point 7 and 235, point 9 where Justice Sholl talks about using it as mere machinery. Now, that is not argued, as I understand it, either.
The fifth proposition, which I extract by implication, in effect, from these statements of principle, is that the suggestion made by the Full Court of South Australia at paragraph 120 that this power can be used by some sort of analogy with other powers is not even dealt with by their Honours in the Full Court.
Now, we submit that in general terms this case, which is, we submit, the most closely analogous consideration of a statutory power, assists us for those reasons. I might add that your Honours will have seen from the judgment of the Full Court at paragraph 78 that my learned friend, to be fair to him, did not urge this construction on the Full Court. Indeed, he submitted that they should not interpret, in the last sentence, that the court should not interpret the convenience power in this broad way, and your Honours will have seen from paragraph 60 that that submission mirrors the position taken Mr Doyle, as he then was, in argument before this Court in the decision in Foley v Padley.
Now, my learned friend, Mr Hinton, does not rely on any other power and we submit that certainly, looking at these various options raised by the Full Court of Victoria and withdrawing those that my learned friend does not press upon, your Honours, it is tolerably clear that, on what I will call a simple ultra vires argument, these clauses of the by-law are beyond the convenience power.
HAYNE J: Well, that set of submissions tells us what the convenience power does not do. What do you say the convenience power does do?
MR REYNOLDS: Your Honour, I go back to propositions 3 and 4 that I just gave your Honours, namely, that it can be used ejusdem generis and - - -
HAYNE J: What is the genus?
MR REYNOLDS: Well, your Honour, I am, I hope your Honour will think politely, saying that I do not articulate any ejusdem generis argument and that my learned friend has not either and that my respectful submission is that is a question which might have been directed fairly to my learned friend, but because I do not articulate any reliance upon that principle then I can, I hope your Honour will think respectfully, say that I do not have an argument on that proposition.
HAYNE J: Yes.
FRENCH CJ: What is the significance, if any, under South Australian interpretation rules of the heading of the particular part of the by-law? It is headed “Miscellaneous” I think, is it not?
MR REYNOLDS: I did look that up at one stage, at least to the point of looking at Professor Pearce’s book. I suspect I may not have chased the reference through, but the position, as I understand it, is that, as in most other jurisdictions, headings should be ignored. I know the Commonwealth - and this is a very recent amendment to their Interpretation Act have changed that position but I will have a check done for your Honours about that, but I am about 95 per cent certain that I have already checked that and found that it does not impact on construction.
FRENCH CJ: Section 19, I think, of the Acts Interpretation Act - just looking at the index, I am not sure it is – it does not appear to be reproduced here.
HAYNE J: Section 19(2) - the following do not “form part of an Act, subject to any express provision to the contrary” – (a) section headings, (b) notes including their headings; (c) lists of contents.
MR REYNOLDS: That is, as I understand it, the usual position but, as I say, your Honours might - - -
FRENCH CJ: That seems to be fairly clear.
MR REYNOLDS: - - - be interested to note that the Commonwealth appear to have changed that in a very recent amendment. Can I move then from the convenience power to issues of reasonableness and proportionality? As I listened to my learned friend yesterday I do not feel that his statements as to the relevant legal principles are matters that I would take any issue with at all. We have discussed the relevant principles from paragraph 63 following in our submissions and I think my learned friend and I pretty much rely on both the same cases and the same propositions of law.
We have put up Justice Hely’s judgment in the One.Tel Case in paragraph 64. My learned friend perhaps did not place the same degree of emphasis on it as I have and I think in his written submissions he agrees that it is a correct statement of the law and I respectfully submit an extremely clear and good one.
At any rate, the only extra points that I would mention on the legal position are to refer your Honours to paragraphs 64, 66 and 70 of our submissions, particularly paragraph 64 where, towards the end of Justice Hely’s – the quotation from Justice Hely’s judgment he refers to Justice Brennan in Tanner’s Case and this is, in our submissions at page 17 at about line 30 where Justice Brennan talked about:
A regulation which is so widely drawn as needlessly to embrace a field of operation which is quite unconnected with the statutory object cannot reasonably be adopted in exercise of a power so limited.
There is a similar but slightly different point made by Justice Brennan at paragraph 70 in relation to – that is of our submissions on page 18 in relation to a by-law which proscribes many of the ordinary incidents of human intercourse.
Your Honours, in our synopsis of argument, what we have done in section 4, picking up in one sense what your Honour Justice Kiefel said yesterday about looking closely at the practical operation and effect of the by-law, is to try and flesh out a number of relevant factors which are relevant both to the argument that we have on common law proportionality and also in relation to the implied freedom.
One criticism which I would like to make of my own written submissions is that I found under each of these various headings I was repeating much of the same thing under each topic, so what I have tried to do is put everything that is relevant to reasonableness, proportionality and the implied freedom in the one list. The only problem with that, of course, is that some of these matters might fairly be said to be only relevant to common law proportionality or only relevant to the freedom, but if your Honours will accept it, as it were, as a mutatis mutandis list, then what I would like to do is to deal with various aspects of it.
What we have done is put in the relevant reference “AWS” to our submissions and my learned junior, Ms Rubagotti, has been through all, or at least I hope all, of the implied freedom cases and fastened on where these factors or very similar ones have been addressed by the Court. That is perhaps unnecessary in the sense that these are matters which in a general sense come within the tests, but your Honours will see that there is some precedent for the use of these or the reference to each of these factors as part of what your Honour Justice Kiefel talked about yesterday, namely, a focus on all of the relevant factors and context to look at the practical operation and effect of the by-law.
The other reason that I compiled this list is that I was not quite certain how much time we were going to be given yesterday and I am obviously in your Honours’ hands a bit in terms of how long I can or should take in relation to these various factors.
CRENNAN J: Do you want to tie some of these points to the fact that the by-law is in respect of roads?
MR REYNOLDS: I do, and I do that in a few places. It might be convenient if your Honours have our submissions or the text of the by-law. There is a reference to the definition of “road” in our submissions at paragraph 13 which comes from section 4(1) of the 1999 Act. The point that I would make in response – this is the definition of “road” – to what my learned friend said yesterday is that if your Honours look at that definition, it talks about either:
a public or private street, road –
and this word is important:
or thoroughfare to which public access is available –
and not only to vehicles, but also to pedestrians. My learned friend said yesterday in effect there is a carve-out of parks. I respectfully submit that that is not consistent with the breadth of the way this provision is drafted in that one can have a thoroughfare to which public access is available to pedestrians which would not come within what your Honours and I in normal parlance would describe as a road. So that is part of what we say is the breadth of the - - -
FRENCH CJ: Well, speaking for myself, it seems to me that seeking to inflate the prohibition into one which affects public places generally where people come and go is maybe a bridge too far, having regard to the opening reference to public and private streets and roads, and to the word “thoroughfare” itself.
MR REYNOLDS: I am sorry, is your Honour - - -
FRENCH CJ: Well, if you are trying to say that the prohibition in the by-law by reference to the definition of “road” extends to public places generally - - -
MR REYNOLDS: Well, not public places generally, I cannot go that far.
FRENCH CJ: Or parks.
MR REYNOLDS: But thoroughfares, to which public access is available to pedestrians - I mean, I am sorry to use an example from my own city, but Hyde Park, I assume your Honours know, in Sydney, for example, that would come within that definition, and to use an Adelaide example, which is more apposite of course, would be Victoria Square just near the Law Courts Building.
HAYNE J: Why, because people can walk on it?
MR REYNOLDS: Well, your Honour, because it is a public thoroughfare to which public access is available.
HAYNE J: Yes. “Thoroughfare” means pass and re-pass, I would have thought, your ordinary common law definition of a highway, I would have thought, or an easement.
MR REYNOLDS: Your Honour, could I say two things about that: first of all that your Honour has my submission, second of all that there is another aspect to this which we will be coming to a little bit later on and it is that one of the factors which I submit your Honours do need to take into account is not only how your Honours, or a court, would construe this provision, it is also how the ordinary citizen would construe it. It is what we have referred to in our submissions as chilling effect, and that is that a provision like this which picks up this sort of definition or the definition of “canvass”, for example, in the dictionary, will cover, to the ordinary citizen reading it, not only the forms of conduct and the areas which your Honours find that this by-law applies to, but also a whole penumbra of other areas and activities which the ordinary citizen armed with his knowledge or ordinary knowledge of the English language, or just a dictionary, would think were also covered, and that, I submit, is – and this is proposition number - - -
HAYNE J: Sorry, can I understand the proposition? Are you saying we construe the by-law according to ordinary legal principles or according to some other principle?
MR REYNOLDS: The former, your Honour. I do not think, with respect, anything that I would be putting to your Honour about normal principles of construction would be anything other than plain vanilla orthodoxy, with respect, and I am not intending to dilate those principles at all in this submission.
FRENCH CJ: But you seem to be suggesting that a judgment as to validity is informed by the possibility of an erroneous view which the members of the public might hold that the by-law has a wider reach than, properly construed, it actually has.
MR REYNOLDS: Not quite, your Honour. I would not say erroneous. I would say available view as a matter of ordinary language but which a Justice of the High Court of Australia would not accept as being the meaning of this provision. In other words, it is relevant factor that citizens need to construe these provisions and will do so, as I said before, either armed with their ordinary knowledge of the English language or with a dictionary and we will see the sorts of activities that are proscribed or look at the sorts of areas that they think are relevant to the operation of this law.
Many of these people, obviously, are not legally trained and will not be able to seek legal advice and, if I may say so, not every practising lawyer knows about the principles of Potter v Minahan and Coco v The Queen that your Honours are so familiar with. The law has an operation out there in the community over and beyond what the courts give to it when matters are raised as part of a lis inter partes but, in coming back to your Honour Justice Hayne, I am not seeking to put any proposition of construction in this case other than the normal principles and I resile from any such submission to the contrary.
BELL J: Applying those normal principles, would one take into account that is “park” is defined to mean:
community land reserved or delineated as a park or designated by a council as a park –
in considering your submission respecting the scope of the definition of “road”?
MR REYNOLDS: I would say in general terms it would be impossible in construing any provision to leave the context out of all consideration, of course, but this provision still does have a fairly broad operation, regardless of whether or not one includes parks or things like the squares that are so much a feature of the Adelaide landscape. If I can go through my factors and as I say I am obviously in the Court’s hands on this and I can go through this at greater or lesser length but I am going to deal with them - - -
FRENCH CJ: I think lesser length. Featuring on the important issues would be a better way to go.
MR REYNOLDS: Of course, your Honour, but your Honour does not obviously need my invitation to draw me into line but for what it is worth I am at the same time inviting it if I am trespassing upon your Honour’s patience. So far as the first factor is concerned, your Honours can see from the terms of the by-law its breadth and I do not think I need to dwell on the meanings of “preach”, “canvass” and “harangue” much at all but if your Honours look at the distribution of printed matter or notices or handbills your Honours can see that that is going to catch a very wide amount of – as Justice Brennan would say – everyday activity.
The second factor we have referred to is the area of these proscriptions and that really has three aspects. One is the point we have just been dealing with and that is the definition of “road” which we just dealt with. The second thing is that the area in which these proscriptions operate is not some area away from the centre of Adelaide in the suburbs. It operates within the centre of the seat of government in the central business district – and this is dealt with in paragraph 22 of our submissions.
So far as the implied freedom is concerned, your Honours will no doubt have seen that we lay some stress on that in terms of the importance of such areas for political communication. The third point that I would make in relation to that is to refer your Honours, briefly, to a judgment of Mr Justice Pincus which is, I think, on your Honour’s lists of authorities called Sellars v Coleman. It is reported – perhaps I do not need to take your Honours to the text. I will give your Honours just the reference – [2000] QCA 465; [2001] 2 QdR 565 but in that case at paragraph 14 Justice Pincus in finding that the by-law in that case was valid laid great stress on the fact that the by-law prohibiting public addresses only operated within a very limited area. I submit that that is a relevant factor also under this rubric.
The third matter is that the proscriptions apply at all times subject to very limited qualifications. There has been no attempt, for example, to tailor these by-laws so that they apply only during peak hours or late night shopping evenings or during particular events or during peak hours or Saturday morning or what have you. Fourthly, the fact that these by-laws create criminal offences of itself is likely to deter people from both engaging in the relevant political discussion caught by the proscriptions and also the other activity.
Fifthly, I have already talked about the chilling effect principle and perhaps I do not need to deal with that any further. Sixthly, the no defences or limited qualifications is in a similar class. Seventhly, that much every day activity is caught. I have already referred your Honours to Justice Brennan in Foley v Padley. A more important proposition both in relation to proportionality generally is the eighth one, that is that various common law freedoms are affected. That was a matter as your Honours will have seen from our submissions which, your Honour the Chief Justice dealt with in the Evans Case, that is Evans v New South Wales and it was also discussed by Justice Higgins in Melbourne Corporation v Barry as quoted in the Leslie Case at page 227 at about point 6. Ninthly, that the proscriptions have a substantial effect on political discussion is, in effect, obvious from their terms and the definitions of “preach”, “canvass”, “harangue”, et cetera.
But it is important to note if I may that the provision, going back to the by-law at 2.3, the carve-out that applies to survey or opinion polls does not apply to anything other than surveys or opinion polls. So, other than a survey or opinion poll conducted by or with the authority of a candidate during the course of an election, all other political discussion coming within the definitions of “preach”, “canvass”, et cetera, are caught. Now, that is a very, very narrow carve-out, I submit.
So far as 2.8 is concerned, that is, these written or printed communications, the election carve-out that is referred to there only applies to candidates or their agents during an election period. It does not apply to candidates outside the immediate course of an election, and there are, of course, many people including parties generally and various groups and bodies that conduct political discussion who do not fall within the rubric of being candidates for election during the course of election.
FRENCH CJ: So far as this goes to the validity of the regulations as an exercise of delegated legislative power, putting to one side the implied freedom questions, are you proceeding on the assumption that, contrary to your primary submission, the power conferred by 667(1)9XVI is not limited by reference to the specific powers in 667?
MR REYNOLDS: If I can put it this way, your Honour, I suppose the submission proceeds upon the basis that your Honours accept the construction given of the convenience power given by the Full Court, so that is a - - -
FRENCH CJ: So the hypothesis by which we are judging reasonableness and proportionality in the terms that you are putting it is that wider view?
MR REYNOLDS: I think that must be right, your Honour.
KIEFEL J: And, so far as concerns the factors that you have identified here in relation to the operation of these clauses of the by-law, do you contend that there is absent a legitimate object to which they are directed, or is your argument really that it goes much further than is necessary in achievement of them?
MR REYNOLDS: Really the latter, your Honour. It is dealt with in our submissions at paragraph 36 following and, given the way the relevant purpose was articulated by my learned friend, Mr Hinton, we said in paragraph 38 that we accepted that those ends as my learned friend put them were legitimate. But your Honour is quite right, the issue is as to whether they are reasonably appropriate and adapted to those ends.
KIEFEL J: You do not identify, however, any alternative method by which the objects could be achieved, given that they are legitimate.
MR REYNOLDS: Well, I am coming to that under paragraph 4.13, your Honour, where I am hoping to deal with that as briefly as possible but since your Honour has asked me to do so, I had better deal with it straightaway. So dealing with that, slightly out of order - - -
KIEFEL J: Well, do not let me take you out of sequence if it interrupts your address.
MR REYNOLDS: If your Honour is happy for me not to - - -
KIEFEL J: Yes.
MR REYNOLDS: I might stick to my list. Paragraph 4.10, we talk about a “substantial affect on core political communication”. What I mean by that is things like candidates seeking votes, public debate about core areas of politics, handing out of material outside the relevant proscriptions, which could fairly be characterised as coming within the notion of core political material. This was also something discussed particularly in Roberts v Bass, in the paragraphs indicated. There is of course here a carve-out in relation to the written material which we have been to, and what I say in this respect is of course subject to that.
Paragraph 4.11 pleaded the “prohibitions affect all persons”, not much needs to be said. Twelfthly, the “strength of competing public interest right” that is protected, we are not dealing here with something like some serious threat to national security. We are dealing with things like obstructions on the road, litter, noise, that kind of thing, so this does not have any huge claim, this by-law, under that particular factor.
CRENNAN J: Mr Reynolds, it might be appropriate to ask you this now because your pinpoints to the judgment take me to a certain part of the judgment. You will recollect yesterday there was mention that at around paragraphs 158 and 159 of the judgment of his Honour it was mentioned yesterday that his Honour was really moving into the language of individual rights.
MR REYNOLDS: I am sorry, your Honour, on?
CRENNAN J: Page 512 of the appeal book. You will recollect yesterday in looking with Victoria, Mr McLeish, paragraphs 158 to 159, and looking particularly at the last two sentences of paragraph 159, there was an observation that his Honour appeared to be moving into the language of individual rights in relation to the public interest right to be protected, which I know you have just been addressing about. What I wanted to ask you was whether you embraced this reasoning or you wished to say something to us to assist us in relation to this reason?
MR REYNOLDS: Not insofar as it could be construed to be asserting that the constitutional freedom operates as in the nature of a right. I think your Honour Justice Hayne has said something about that, perhaps not only your Honour Justice Hayne, and I do not wish to cavil with what your Honour has said in the regard, in fact I would adopt it. So if there is anything in these paragraphs that inconsistent with statements such as that your Honour has made and your Honour Justice Hayne has mentioned, then we would not rely on the reasoning to that effect. But, as I look at it on my feet, I’d suggest that that is not the only construction which could be given to those two paragraphs and one can read, for example, four lines up from the bottom of 158, his Honour talks, I submit, unexceptionably about “the constitutional freedom”, which is the sort of parlance we tend to use most of the time.
So, the short answer to your Honour’s question is I am not articulating some right principle. I do not wish to trespass upon what your Honours have said in that regard but I submit that these paragraphs are open to a construction which is consistent with the way your Honours have approached the freedom in the cases.
So far as less drastic means being available are concerned, there are – I am only using this as an extremely rough analogy, the American cases in this area tend to talk about time, manner and place and just picking that up as a useful rubric. What these proscriptions do not do is restrict, as I said a while ago, these proscriptions very much at all in terms of time, nor very much at all in respect of the places that they operate. Perhaps more relevantly to your Honour Justice Kiefel’s question, there is no attempt to – again to use some parlance from the United States, there is no attempt to - - -
KIEFEL J: You do not really need to go so far. Cases involving section 92 talk about this. In Betfair it was said that the decision in – the first Betfair decision said that the test propounded by Justice Mason in North Eastern Dairy Case should be regarded as the principle of the Court.
MR REYNOLDS: The point that I am trying to make is that there are obviously narrower proscriptions which could be utilised depending upon what the more precise purpose is of the by-laws. The way these by-laws operate, it is very difficult notwithstanding my learned friend’s submissions to glean exactly what their purpose is. Going back to what your Honour the Chief Justice said to me a moment ago, you have got a convenience power that is extremely broad and then my learned friend hypothesises purposes flowing from that extremely broad power which in turn are said to justify a by-law which in its terms itself is very broad.
KIEFEL J: You do not deny there is a legitimate end to it so how do you describe the end? You must have come to a conclusion about that?
MR REYNOLDS: I have not denied that if the ends are as my learned friend formulates them that those ends are legitimate. Your Honour will see from paragraph 39 that we have contested the proposition as to whether or not these two clauses truly have these ends and that is, perhaps, the point that I am trying to make more neatly expressed. Then, my learned friend and I am not in any way attacking him, does his best looking at these by-laws to work out what their ends are. He does not really have anything in the text of them which would enable him to do anything more than mention really the particular terms of the enabling power.
HAYNE J: Well, sticking with paragraph 39 of your written submissions, do you say that the power to grant or withhold permission is unbounded?
MR REYNOLDS: I cannot say that, your Honour.
HAYNE J: Would not the bounds be found by reference to the subject matter, scope and purpose of the provision in question?
MR REYNOLDS: Yes, your Honour.
HAYNE J: What do you say the Court should hold to be the purpose of this provision or the purposes if there be more than one?
MR REYNOLDS: It is really, as your Honour, I submit, would agree, for my learned friend to say what those purposes are, but I say that if one takes the purposes that he has set out in paragraph 37 and one picks up on statements, inter alia, by Sir Owen Dixon, that the true purpose of these provisions goes way beyond the articulation of purpose that my learned friend gives as quoted in paragraph 37 of our submissions. As to what - - -
KIEFEL J: True purpose or - - -
MR REYNOLDS: - - - their actual purpose - - -
KIEFEL J: I am sorry.
MR REYNOLDS: - - - is, it is a little bit like the question I attempted to answer, your Honour, a little earlier this morning. I am in effect saying, I cannot nominate what the purpose is and in effect it is not up to me, all I say that it cannot be truly characterised as having these purposes. Why? Because, again, picking up statements like what Justice Gummow said in Dover Fisheries and what Justice Dixon said in the Williams Case, its true character is going way beyond these things because of the nature - - -
HAYNE J: I know you assert that.
MR REYNOLDS: I do.
HAYNE J: I do not yet understand what the content of the assertion is. I know that the assertion is made repeatedly, it goes way beyond, et cetera. I have no notion of what content you are using or attempting to convey.
MR REYNOLDS: Well, your Honour, I apologise for that because if that is the case I am not putting my submissions with enough clarity. Can I perhaps use an example which I hope will clarify the submission? If one took up a ban, for example, on all communication and all political communication or all criticism of the government, and again, had a permission process and that it operated within the CBD area of Adelaide, I submit if the council or South Australia came along and pointed to these purposes in paragraph 37 your Honour would say, well, the true character of that proscription is such that it goes way beyond these purposes and cannot fairly be said to have been enacted for that purpose.
My submission, and I hope I am making it more clear, is that although the by-law does not rise to the level of the example that I have given, that it is just as the example I have given, not truly characterised as being for these purposes, partly because it goes so far beyond what might reasonably be said to be an appropriate proscription in order to effect those purposes. I am sorry, your Honour Justice Hayne, that is as - - -
KIEFEL J: But, stating it like that implies that there is something less that could be done to achieve the ends. But, what is it?
MR REYNOLDS: That is right, and I have, with respect, been slightly diverted by these important interrogatories, and let me come back to the question your Honour asked me probably some 20 minutes ago, and that is, what else could you do?
Well, if you are talking about issues about, for example, breach of the peace, you can deal with that in terms. If you are talking about your particular concern is something to do with litter, and that is obviously one of the things that may underlie the proscription in relation to handbills, then you can have a by-law that deals with that. Your Honours as part of everyday experience have seen around the place that there are by-laws about these things. One can have a by-law that deals with noise. One can have a by-law that deals with some form of obstruction in the street, picking up what your Honour Justice Hayne said yesterday, something which constitutes a nuisance, something which is a form of violence, and something which deals with some particular form of unsafe activity. All of these kinds of proscriptions are the sort of thing that your Honours have seen in either by-laws or in statutory provisions from time to time.
My difficulty is that neither the council nor the State of South Australia are prepared to descend to detail about what the actual purposes are because, if they do that, then they are immediately in the difficulty that they know that I will assert that they have gone way beyond what is reasonably appropriate in order to effect those purposes. So what do they do? They cast the purpose of the by-law at this very high level of generality in order to try and thwart the counter argument.
FRENCH CJ: You accept that the purposes stated at that level of generality are legitimate in the sense relevant to the second Lange question, do you not, at paragraph 38?
MR REYNOLDS: The answer is yes. It is not possible for me to suggest that safety and the comfort of members of the municipality, for example, is not a legitimate purpose, but again there have to be limits on this. Going back to the example I gave earlier, can one ban all communication subject to a permission process, or all use of any thoroughfare for any purpose subject to a permission process, and then say, “Oh, this is fine because the reason this has been done is because we needed an administrative officer to deal with the various competing interests of everyone wanting to communicate and everyone wanting to use the roads and walk about, and you just go and you make your application for permission and this is all a legitimate purpose”.
The difficulty is that that may be so in general terms but, when one looks at the means, they are not reasonably appropriate to deal with these various issues. In particular, the impact on political communication, I submit, goes beyond what the freedom would require when your Honours look at these various factors, their practical operation and effect in a global sense.
HAYNE J: Based on the old form of indictment for common nuisance, obstruction of a highway, would you accept that the essence of the purpose of this regulation or this by-law is to ensure that persons can pass and re-pass, with their vehicles on the road as they ought and were want to do?
MR REYNOLDS: I submit it goes beyond what is reasonably appropriate for that purpose.
HAYNE J: Stripped of its rather more colourful elements that is drawn from the form of indictment for common nuisance found in old editions of Archbold.
MR REYNOLDS: Your Honour, I am grateful for that. As your Honour appreciates, there are issues about the definition of common law nuisance which your Honour raised yesterday. But picking up what your Honour says, we say this goes fairly easily beyond what is appropriate to effect that purpose, although I concede that would be a legitimate purpose.
We dealt briefly with the notion in paragraph 4.14 of our permissions being first required. What I am talking about there is that there are such broad restraints on everyday activity that it is antipathetic to our civil liberties, values and tradition given the restrictions, not only on speech and written or printed communication, but also the impact on assembly indirectly, and also on political speech.
I come in the last few factors to what your Honours may regard as some more important points. One is in paragraph 15, the width of the discretion and that is something which we have referred to in our submissions. My learned friend, Mr Hinton, has talked about the conditions that may be imposed as being as the council thinks fit. That is referred to in our submissions at paragraph 18. As I said to your Honour Justice Hayne earlier, we do not submit that the discretion is unfettered. It must be exercised in accordance with the nature and purpose of the Act.
But it is still a wide discretion and picking up what your Honour Justice Kiefel said yesterday there are thus potentially many factors which might, in the exercise of that discretion, compete with matters relevant to an implied freedom in a proportionality or balancing exercise process. Sixteenthly, there are no prescribed criteria either. That is perhaps a fairly similar point to the one before, but on this aspect of things I would like to refer your Honours to one part of the appeal book, very briefly, at page 150. Your Honours will see at page 148 these are apparently “Operating Guidelines” from the council, in relation to the:
Distribution of Literature & Conduct of Preaching –
Your Honours will see the protocol – this is at page 150 relevantly. This is about line 15 the regime is that copies have to be provided, names, locations, “public liability insurance” for a “minimum of $10million”. Importantly in paragraph numbered 5 that when:
The City Works Approvals Officer assesses the application. If the literature is not considered offensive –
a matter that your Honours will be looking at later on today –
or inappropriate a permit may be granted.
6. The permit is not valid until the relevant fees have been paid.
Now, this shows that although this discretion is, in terms of the by-law fairly broad, it is to some degree, in practice, fettered by the adoption of this particular protocol.
KIEFEL J: They might be irrelevant considerations, having regard to the purposes of the by-law. That does not assist us determining the validity of the by-law, does it?
MR REYNOLDS: Well, it is certainly a neat point of prejudice, your Honour. Your Honours can see how this works in practice and this is apparently in there as a guideline which is adopted.
FRENCH CJ: There is no permit to “harangue” mentioned in the guidelines.
MR REYNOLDS: No, so it perhaps suggests things by omission as well. At any rate, I thought I should draw your Honour’s attention to that. In paragraph 17 we refer to potential delay, expense and inconvenience. That is the sort of thing that will put people off, particularly political discussion – they will shrug their shoulders and just say, “Oh, I can’t be bothered”. They are also - although we have not said it there - facing, as your Honours have seen from that page I just took your Honours to, a probable loss of anonymity in this process and, finally, the extent of judicial review.
Your Honours will see that I have used the word “extent”. I do not think there is any issue between Mr Hinton and I that the decision-maker at the council will not have to give reasons and, secondly, that if one is talking about error of law that it will have to be on the record. That is quite different from the more expansive form of judicial review, for example, that applied in Wotton’s Case.
If I can just give your Honours one reference to a judgment of Sir Anthony Mason in Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272. His Honour at page 303 contrasts the deficiencies in common law review with those available under the – in that case – the Commonwealth Administrative Decisions (Judicial Review) Act. It remains only - and I am almost finished, your Honours – to deal with what I will call the Wotton principles which loom fairly large in the submissions by the interveners.
I regret to say that I did not get the transcript from yesterday until very late before coming to Court so I have not been able to check the detail of precisely what my learned friends have said as against my notes and recollection. If my learned friend, Mr Hinton, and his colleagues are saying that the existence of a permission regime which is at some level judicially reviewable is in relation to the prohibition or burden said to infringe the implied freedom then there is no issue between us.
We accept, and your Honours will have seen from the factors that I have put down there, particularly towards the end, that I accept that that is the proposition. I accept it without demur. It must be, again picking up what your Honour Justice Kiefel said yesterday, part and parcel of the relevant context, the practical operation and effect of the relevant burden, and it will be one of a number of matters which inevitably your Honours will take into account, in this case of course remembering that the form of judicial review is more limited than, for example, it was in Wotton’s Case.
I stress I may be being unfair to my learned friend, Mr Hinton, and perhaps his colleagues as well, but I understood it, particularly at one point yesterday, and the note that I have is around lines 1329 to 1334 of the transcript, my learned friend went very close to, or possibly embraced a proposition to the following effect, that if one is dealing with a statutory burden on political communication and there is a permission regime within the statute and the permission regime must be exercised in accordance with the implied freedom then the law will be valid, it will not infringe the implied freedom and in effect the citizen’s remedy is to seek judicial review of the relevant exercise of discretion which put, somewhat loosely and, your Honours might think more extravagantly, says it does not matter what the burden is on political communication as long as some administrative decision-maker is given a discretion to grant a permit which must be exercised by taking into account the implied freedom then the law will be valid.
I emphasise my learned friend’s submission may not have risen to that level, but if that is what my learned friend was saying we submit that it is not consistent with the Wotton decision. Your Honours were taken to this decision in great detail yesterday and your Honours will be probably pleased to hear that I propose to spend about one minute on it, and this is the decision in Wotton v Queensland (2012) 86 ALJR 246. But the key point made, I respectfully submit, yesterday about this judgment was the point made by your Honour Justice Kiefel in relation to the last sentence in paragraph [31], this is at page 254, first column at letter E, which refers to the relevant section and says:
without regard to the power of approval which governs its operation and which is an element of the burden –
It is only part of the equation. It is only one of the things that needs to be looked at in order to determine validity within the implied freedom and the burden, as the paragraph says, imposed upon political communication. The only other reference I can your Honours to Wotton is at paragraph [22], where in proposition (iv) at the top of page 253 this formulation refers to a condition, and that is that “if, on its proper construction”, and I emphasise these words, “the statute complies with the constitutional limitation”.
No-one could suggest – and I suspect my learned friend in reply will not suggest – that any form of prohibition on political speech, for example, on all criticism of the government, would be valid provided that there is a permission process which must be exercised in accordance with the implied freedom. The key is to examine – and your Honour Justice Bell put this to my friend on the special leave application – you have to look at all the facts. That is what your Honours did in the Wotton Case and all of the factors need to be looked at in terms of the practical effect and operation of the law.
The only point that I have to finish off, your Honours, is a small point in relation to reading down, and it is this: my learned friend, Mr Hinton, in his submissions at paragraph 36 including footnote 52 I think comes to the same view that we have, which is by way of qualification on our submissions at paragraph 47 which I think need to be qualified.
The reason they need to be qualified is that when one is dealing with alleged constitutional invalidity of by-laws in South Australia, there are special provisions in the Interpretation Act that apply to that exercise. Can I briefly give your Honours the references? There is first of all section 22A which is the usual form of reading down provision that your Honours know well from section 15A of the Commonwealth Act. I think your Honours should have been given – no, your Honours need to be given a copy of the relevant provisions because I do not - - -
FRENCH CJ: That is at page 530, I think, of the appellant’s book of legislation.
MR REYNOLDS: I do not think all of them are there, your Honours, and I have got copies. The key provision is section 22A which is the usual sort of reading down provision in respect of Acts, but importantly section 14A makes it clear that this part that is Part 4 applies also to statutory instruments and the definition of “statutory instrument” in section 4 includes by-laws and your Honours will see section 14A(2) says that:
a reference to an Act or an enactment extends to a statutory instrument.
The bottom line is this: that the reading down provision in section 22A in South Australia applies also to by-laws. So, that is the relevant exercise so far as reading down is concerned.
FRENCH CJ: I notice that the order that was made in the District Court appearing at page 459 was left intact by the Full Court’s decision. It simply declares certain words in paragraph 2.3 to be invalid and to be severed from the by-law.
MR REYNOLDS: Page 459, your Honour?
FRENCH CJ: Yes, just perhaps an infelicitous way of expressing the result?
MR REYNOLDS: Yes. It is probably as usual the fault of counsel, your Honour. If the Court pleases, those are my submissions.
FRENCH CJ: Yes, thank you, Mr Reynolds. Yes, Mr Corneloup.
MR CORNELOUP: Thank you, your Honours, for allowing me to speak. I want to first look at the breadth of the by-law and just look back at the definition of “roads”. As already mentioned, “road” means:
a public or private street, road or thoroughfare to which public access is available on a continuous or substantially continuous basis to vehicles or pedestrians or both and includes –
a viaduct, subway, an alleyway, laneway or walkway. Now, just for an example of this, on North Terrace there is a stretch from the train station to East Terrace of about two kilometres and basically it is fairly wide. It is about five or six metres wide and there are various entrances which are a bit broader and it deviates away from the vehicle section of the road quite a bit, probably about 10 metres in. There is this huge walkway which stretches for about two kilometres and along that stretch there is the train station, Parliament House, the State Library, the museum, all the university buildings and the Royal Adelaide Hospital. It is a really long stretch. That would really be included as a thoroughfare and so this prohibition applies to that area as well. Also, King William Street, which is a main street is a lot of government buildings like town hall and so forth which is about a similar sort of a stretch, the post office and things like that. So, that covers quite a large area.
Just to give an example of – because your Honour Justice Kiefel mentioned some less drastic means by which the means of the ends of the by-law could be reached. In considering that, discussion was had as to the purpose of the by-law and if the purpose of the by-law is merely the comfort, convenience and safety of the inhabitants, I would say that comfort may not – all comfort may not necessarily be a legitimate end. The same with convenience, for example, people may feel uncomfortable at religious preaching, for example, or just being preached to at all. They may feel uncomfortable with that. So that is not necessarily a legitimate end.
But, just to look at some of the stated ends preventing unreasonable disruption of traders, preventing offensive and insulting behaviour, preventing groups clashing in the Olympic system, which as has been described by Justice Kourakis, preventing breaches of the peace, enhancing road safety concerning vehicles and trams and so forth, preventing obstructions, allocating space to various users, preventing unreasonable disruption of various road users.
I mean, first of all as far as traders, the by-law is obviously not targeted to Rundle Mall, which is where most of the traders are centred, there really is not a lot of traders outside of Rundle Mall, and that the scope is in the guideline of the City of Adelaide, it is a huge area and the parklands are really on the outskirts of the city where no one goes. So, nobody really goes to the parklands, it is really maybe few joggers here and there, but it is really an empty space, so if somebody was to go and preach there they would be speaking to no one.
FRENCH CJ: Well, you are concerned about this by-law as a by-law relating to roads, including the kind of road you have talked about with the wide thoroughfare and so forth, and the mall of course.
MR CORNELOUP: Yes, and the mall as well. Just addressing some of these issues, unreasonable disruption of traders, you have got things like the Environmental Protection Act which makes it an offence – section 82(2) and (1), which is intentional, section (2) does not have the element of intention to basically cause an environmental nuisance which tends to unreasonably affect the amenity of the area or unreasonably interfere with others. Actually we will turn there, just so I can make it a bit clearer for your Honours.
FRENCH CJ: This is in your book of legislation is it?
MR CORNELOUP: Yes, this is in my book of legislation, page 115 it starts. The section that I am referring to is on page 125, “Causing environmental nuisance”. Section (2), which is the one which is non-intentional, section (1) is pretty much the same, but it requires intention. Section (2):
A person who by polluting the environment causes an environmental nuisance is guilty of an offence.
If we look at the definition of “environmental nuisance” on page 118:
environmental nuisance means—
(a) any adverse effect on an amenity value of an area that—
- (i) is caused by pollution; and
- (ii) unreasonably interferes with or is likely to interfere unreasonably with the enjoyment of the area by persons occupying a place within, or lawfully resorting to, the area –
“Pollutant” is defined on page 120, subsection (b), to include “noise”.
FRENCH CJ: So, you are offering this as an example of a more focused way of dealing with comfort and convenience as it were?
MR CORNELOUP: Yes, that is right. I mean, there is various – of them, for example, where they could target amplification, say, you cannot, for example, if you look at the model by-law proclamation, which has been adopted in Rundle Mall, at the moment, and operates in Rundle Mall, there is a prohibition on the use of amplification without permission. That is on page 69, the local government model by-law proclamation, and that was really done in a response to – without giving the history of the whole incident – in a response to the allegations of noise, et cetera, coming from our activities, and so forth.
The other proposition is as well is you have got offences such as disorderly behaviour which is a substantial breach of decorum which tends to annoy or unreasonably interfere with others – some definition like that – Barrington v Austin has that definition there, a South Australian case which was quoted it – yes, I cannot remember the other quotation, but – so, we have disorderly behaviour, we have amplification, we have got environmental protection laws, you can also even put in a by-law. If we look at the model by-law proclamation on page 69 – there is also another – if you go to – actually it has gone from 71, sorry, is the model by-law proclamation, page 71 and on 72, it has got 3.5. It says:
Interference with Permitted Use
interrupt, disrupt or interfere with any other person’s use of the pedestrian mall which is permitted or for which Permission has been granted –
So while - maybe not a trader would come under that but you could easily insert in there “traders”, you know, “unreasonably interfere or disrupt or interrupt traders, the operation of traders” and so forth.
FRENCH CJ: Incidentally, is this a by-law which is actually in effect or is it a by-law which can be adopted by any council that wants to adopt it?
MR CORNELOUP: Yes, for both. It is, in effect, in Rundle Mall.
FRENCH CJ: It has been adopted by the Adelaide City Council?
MR CORNELOUP: And has been adopted, yes. Yes, that is right. In my view, that covers the concern for traders sufficiently. The next point was that - - -
KIEFEL J: That was not in effect, though, at the time of the charges?
MR CORNELOUP: It was not in effect at the time. Actually, I think there was a similar provision in effect at the time or I might be getting confused with other by-laws because there was a pattern of them of a similar form throughout Adelaide, one in Glenelg referring to land and – I am just speaking from the top of my head, really, I am not as organised as a lawyer or anything. But, yes, it was not in effect at the time, I do not think, in Rundle Mall but I cannot be certain. I know that it was not in effect elsewhere.
FRENCH CJ: Anyway, all you are using this for is for an example of alternative ways of deals with issues of noise and nuisance and so forth.
MR CORNELOUP: Yes. Yes, that is right. The next one was preventing of offensive and insulting behaviour. I would say that that would be covered from a criminal perspective by the Summary Offences Act 1953 which – if I can just look at the section – I think it is section 7. Section 7 prohibits any “Disorderly or offensive conduct” and the use of “offensive language” as well. Also, another section, if I can just briefly look that up, which deals with indecent language.
FRENCH CJ: Now, this is all set out in your book of legislation from page 99 and following? I think section 7 appears at 102.
MR CORNELOUP: Yes, that is right, 99, yes. There are some that are not really relevant but I just sort of skimmed through them and just listed them at the time but, yes.
So page 102 has “Disorderly or offensive conduct or language”. Also what is different about South Australia is that in other States it has been required an intention to be offensive. Whereas in South Australia the Full Court has ruled that an intention is not relevant and is not a necessary ingredient, and I do not have the case citation, but your Honours would probably be more experienced than me in finding that. But South Australia is unique in that sense that intention is not a requirement for offensive conduct or offensive language, and so forth. You have also got disturbing of public meetings which could deal with the Olympic system and the clashing, which I will get to a bit later. But section 22:
Indecent language
(1) A person who uses indecent or profane language or sings any indecent or profane song or ballad––
(a) in a public place –
et cetera and it says:
indecent includes obscene.
So this is really covering a lot of the kinds of things and concerns that the council has put forward and they can enforce those things if they were really happening by these provisions. The police can enforce that by these sorts of provisions. It also talks about indecent or offensive material as well. In regards to offensive material which does not fit that criteria of the criminal legislation which is typically in legislation across the States, that is really the question that the Coleman v Power Case was about. From what I remember I have got a quote here. Your Honour, can I just grab my laptop over there, is that okay?
FRENCH CJ: Yes.
MR CORNELOUP: In the judgment of Justices Gummow and Hayne, reference was made to the reading down of a particular – of the term “insulting”, paragraph 199 on page 78 of the judgment. It was said:
If s7(1)(d) is not construed in the way we have indicated, but is construed as prohibiting the use of any words to a person that are calculated to hurt the personal feelings of that person, it is evident that discourse in a public place on any subject (private or political) is more narrowly constrained by the requirements of the Vagrants Act. And the end served by the Vagrants Act (on that wider construction of its application) would necessarily be described in terms of ensuring the civility of discourse. The very basis of the decision in Lange would require the conclusion that an end identified in that way could not satisfy the second of the tests articulated in Lange. What Lange decided was that the common law defence of qualified privilege to an action for defamation must be extended to accommodate constitutional imperatives. That extension would not have been necessary if the civil law of defamation (which requires in one of its primary operations that a speaker not defame another) was itself, without the extension of the defence of qualified privilege, compatible with the maintenance of the constitutionally prescribed system of government.
They go on to give it a wider construction. So, I would make the submission that if it is merely trying to regulate speech which is just hurting someone’s feelings but not necessarily coming within the Summary Offences Act of offensive language or indecent language, then it is not a legitimate end and it is not something which is compatible with the maintenance of the Constitution of the implied freedom.
The other thing to consider is that in the City of Adelaide Act that there is a specific – in reference to traders, there is a specific by-law making power for Rundle Mall and the vicinity of Rundle Mall. That would give the power to prohibit and to regulate and so forth anything which would affect the use or enjoyment of the mall. I would say that sort of thing is more appropriate for perhaps Rundle Mall.
Also, it talks – another one of the reasons given was preventing groups clashing. I think the local government (Model by-law) Proclamation is an example of a way to deal with that, but you could also reform the by-laws in a better way to deal with that rather than a less drastic way. By way of example I have just written up something which I actually gave to the Court crier which, I think, was distributed in the back of a sort of a list of things which I handed up. It is sort of – I think it is the last document, I think, is at the back of it. It sort of has a sort of something which I drew up.
FRENCH CJ: This is your “Preaching are regulated activities”?
MR CORNELOUP: Yes. So, it is something that I have drawn up and - - -
FRENCH CJ: So, you are saying this is a less drastic way in which the same ends could be achieved?
MR CORNELOUP: That is right, yes. Let me just pull up my example. So, you could start off by making a statement that preaching is a regulated activity, or preaching, haranguing, canvasing is a regulated activity.
Preaching is permitted on the roads provided that –
Or preaching is permitted in a particular location provided that:
- The person or persons preaching do not unreasonably interfere with other road users and;
- The person or persons preaching do not cause an obstruction –
which there is already an obstruction provision in the by-law which was in force at the time as well, and is still in force.
- The person or persons preaching do not occupy one location for more than 45 minutes –
or an hour or any duration that the council or the Court would see as reasonable and that would deal with the Olympic system so to speak.
- The person or persons preaching do not knowingly occupy a location where other persons have –
occupied within a duration of period. Some sort of regulation, it is a bit like when you have car parks, you go to the city and you have got little signs, well, you could have rules in regard to the manner in which one preaches and so forth; time limits, times when it is prohibited, times where it is not prohibited and things like that.
You can also empower an authorised officer, a council officer, to issue a move on direction or to give a direction to someone to cease acting – interfering in an unreasonable manner with other road users, some sort of activity, and put some sort of guidelines there of that sort which would be more compatible with the implied freedom and far less drastic a means – of course I am speaking as a layman and a professional would do a lot better at looking at that sort of thing.
There is also reference to preventing a breach of the peace, the common law powers, as I have understood it, stemming from England and Victoria has picked it up quite a bit as well, is that a police officer has the authority to do anything necessary to prevent a breach of the peace, and that includes giving a direction, and if one fails to obey that direction, they necessarily obstructing a police officer in the execution of his duty and can be arrested and removed from the area and so forth.
So, in my view, there is many other ways to deal with the concerns that they have. The other one was the vehicles and trams. On the trams it is quite obvious that all you have to do is make it unlawful to stand on a road which vehicles travel on – which his meant for vehicles. We have examples of that in the Australian Road Rules on page 89 of my book of legislation. Going to 91, section 228 of the Australian Road Rules:
A pedestrian must not travel past a no pedestrians sign.
Offence provision.
A pedestrian must not be on a length of road to which a road access sign applies if information on or with the sign indicates that pedestrians are not permitted beyond the sign.
It talks about crossing the roads on page 92, section 230:
(1) A pedestrian crossing a road:
- (a) must cross by the shortest safe route; and
- (b) must not stay on the road longer than necessary to cross the road safely.
Very clear, you know, that you do not stay on the road and preach, it is a basic thing which is addressed, I think, with the road rules, there is no need to make a by-law restricting preaching without permission, it can be dealt with in other ways.
And I wanted to just briefly talk about Victoria. The State of Victoria brought up in its submissions, and I think the Commonwealth in its oral submissions, that preaching should be restricted to religious preaching, or is necessarily limited to religious preaching, and that that is not a serious burden on the implied freedom. Just a few case citations – Evans v State of New South Wales - the court said:
Religious beliefs and doctrines frequently attract public debate and sometimes have political consequences reflected in government laws and policies.
In Levy v Victoria – and these quotes are probably well-known; I do not know - Justice Kirby said:
A rudimentary knowledge of human behaviour teaches that people communicate ideas and opinions by means other than words spoken or written. Lifting a flag in battle, raising a hand against advancing tanks, wearing symbols of dissent, participating in a silent vigil, public prayer and meditation –
So religion does have its place even just by its actions but surely religious content also has its place. I did give that bundle of things which I mentioned, and it talks about the opening of the first Commonwealth. It is a Christian website obviously and I will just refer to this very briefly – “Opening of the Federal Parliament of the Commonwealth of Australia”.
FRENCH CJ: I think, looking at the documents you have handed up, you are referring to the, if you like, invocation of religious principles in connection with the operation of parliamentary institutions.
MR CORNELOUP: That is correct, yes.
FRENCH CJ: And I think you also mentioned some political parties, but is not the main point that you are making is that in preaching a religious message, you may be saying things which also fit within the general category of political communication?
MR CORNELOUP: Not just that. That is one thing.
FRENCH CJ: Well, you say a prohibition against preaching picks up matters which may be the subject of the implied freedom.
MR CORNELOUP: No, I would go further than that. I would say that a religious address can specifically target political communication.
FRENCH CJ: Well, that is what I was putting to you really.
MR CORNELOUP: Yes, I guess I am trying to draw a distinction between a religious address which is not targeted at that, but does have content relative to - - -
FRENCH CJ: You might, for example, preach a sermon opposing legislation for same sex marriage.
MR CORNELOUP: Yes, for example.
FRENCH CJ: That is an obvious example, is it not?
MR CORNELOUP: Yes. Other ones are abortion. I might start by reading a scripture and so forth.
FRENCH CJ: All right, well I think we know all the examples.
MR CORNELOUP: Yes, but there are actually probably more non-controversial examples. For example - - -
FRENCH CJ: I do not know that you need to multiply them. The principle is all you need to make.
MR CORNELOUP: Yes, okay. Just to read from a case in the ACT, I mean I suppose the point has already been made. But a prohibition on people preaching on political issues merely because it is religious is not consistent with the implied freedom. I think that it is a very broad by-law, roads included, not just cars. It is not targeted to safety because there are other laws which deal with that. It is not targeted to obstructions. There are other laws which deal with obstructions. It is not targeted to offensive conduct within the criminal law that is already dealt with in the Summary Offences Act.
It is not targeted to interference with traders, there are less drastic means which that can be achieved and I think that it is unnecessary, the by-law. But just a quote from Melbourne v Barry on the by-law, a similar by-law, which dealt with processions on roads. My version is not the same so I will just get a version that I can point your Honour directly where to go.
FRENCH CJ: Are you looking for something in the judgment of Justice Isaacs?
MR CORNELOUP: Yes, that is right, yes. I just found it on page 197, starting with the statement down the bottom, the sentence, “The effect, in plain language” on page 197:
The effect, in plain language –
referring to the restriction on processions –
may be thus stated: All processions, except military and funeral processions, are absolutely prohibited in every street large or small, populous or not, and however innocent or praiseworthy their purpose, however inoffensive or orderly and free from any material obstruction to traffic or other objection, unless the Council chooses for any reason it likes to say “Yes.” It may say “Yes” for any reason whether connected with its proper functions as a local governing body or not; it may say “No” for any reason; and it need not assign any reason for either an affirmative or a negative attitude; it need not say either “Yes” or “No” at all, and then the prohibition stands simpliciter. No one desiring to take part in a procession has any opportunity by way of right of knowing what matters the Council will consider fatal. One essential is the absolute will of the Council unregulated by any law . . . The other conditions are additional, and so need not be considered.
Further down to the sentence starting:
The Council may, within the ambit of this by-law, permit an Oddfellows’ procession to-day and in precisely similar circumstances refuse the foresters to-morrow, it might permit the Druids’ procession and refuse the Eight Hours’ procession, it might permit a party procession of one political faith and refuse one of another political faith –
emphasis there on “political faith” – that faiths are political –
with no difference between them except that of politics.
And, if we go further down, it says with the sentence starting:
Why, then, should so arbitrary a power be inserted at all?
And, it says:
There appears to be no British precedent for it in the case of any municipal corporation –
FRENCH CJ: Well, what are you trying to say here? What is the proposition? Is it that this by-law falls into that sort of character?
MR CORNELOUP: Yes, that is right. For any reason, they can choose to grant or deny the permit. The other distinguishment with Wotton is that Wotton has a clear objective to the law. Here, the objective is not clear. In Wotton, they had to exercise it to make sure that the security of the correctional services facility was maintained and any exercise which was not in pursuit of that was not a valid exercise.
Whereas, in this situation we have no end specified and if they are simply pursuing the comfort and convenience of the inhabitants, they can easily administer that in such a way as to unreasonably burden the implied freedom of political communication. And, then, judicial review has to take place and so forth which stifles political debate which takes a long time. In my experience, it takes a least a year for an effective judicial review of six months – especially with a council. The council is primarily focused on the comfort and convenience of its inhabitants. In one sense, it is a biased corporation which focuses not on the freedom of political speech, but focuses more on the fact that they want their area to look nice and acceptable to the public, and so forth.
Now, the second limb of the Lange test requires that the law be reasonably appropriate and adapted to the legitimate end. In the Lange case where the test is given it goes further and gives the example of referring back to the ACTV Case in the same paragraph as the Lange Case is given and it says:
In ACTV, for example, a majority of this Court held that a law seriously impeding discussion during the course of a federal election was invalid because there were other less drastic means by which the objectives of the law could be achieved. And the common law rules, as they have traditionally been understood, must be examined by reference to the same considerations. If it is necessary, they must be developed –
so, if the development of the common law is necessary –
they must be developed to ensure that the protection given to personal reputation does not unnecessarily or unreasonably impair the freedom of communication about government and political matters which the Constitution requires.
So, I am probably stating the obvious here but it seems that two aspects to the reasonably appropriate and adapted test are that the means used to achieve the end do not unnecessarily and unreasonably impair the freedom of communication. Now, unnecessarily, of course, does not mean that it is – that there is no other option, there might be a slider option and a margin of appreciation is given. But with the term “unreasonable”, when the law seeks to pursue an end it is imperative that the means used in pursuit of the end does not “unreasonably impair the freedom of communication”.
For example, just to give other examples of proportionality, a police car chasing a suspect at any cost, endangering the lives of others, there may be no other way to achieve the end but what he is seeking to achieve presses so far into the danger of other people’s lives that it is not a proportionate response.
I say that the by-law is similar in this case that it pursues the end at all costs and impinges too far into the implied freedom of political communication. Another obvious example is a police officer shooting a suspect for a minor crime because the only way to catch him was to shoot him and he risks injuring and killing the suspect. It is not a proportionate response to the end which he is trying to achieve. So, there may not be any other way to achieve the end but it still may not be a proportionate response. It still may not be reasonably appropriate and adapted to that response.
I think that is what her Honour Justice Kiefel may have been getting at and, of course, I am a layman in her comments in the Wotten Case about things which need further to be discussed and that was the – if I can just find it – paragraph [83] where Justice Kiefel made the point:
The second Lange question, as restated by McHugh J in Coleman v Power, may be thought to require even further clarification in respect of two matters: (1) as to the relationship, if any, between the means chosen by the statute to achieve its objective and the constitutional imperative of the maintenance of the system of representative government; and (2) as to whether that imperative is intended to be part of the test of proportionality which inheres in the second question in Lange, or whether it serves only to underline the importance and purpose of the freedom.
I would say that it is meant to be a part of the test, much like the safety of other people in the exercise of a police officer’s power is to be part of his consideration when he sees what is a reasonably appropriate and adapted or a proportionate response to the end which he is trying to achieve. In Justice Kiefel’s or Kiefel’s - - -
FRENCH CJ: Kiefel.
MR CORNELOUP: Kiefel – sorry – her lecture on Proportionality: A rule of reason, (2012) 23 PLR 85 she makes a statement where she quotes the Tasmanian Dam Case where “Deane J expressed the view” – I will just quote from her:
expressed the view that the “appropriate and adapted” test is of ends and means and contains within it a principle of proportionality. An issue in that case was whether a law gave effect to the object of an international treaty –
et cetera.
His Honour said:
Implicit in the requirement that a law be capable of being reasonably considered to be appropriate and adapted to achieving what is said to provide it with the character of a law with respect to external affairs is a need for there to be a reasonable proportionality between the designated purpose or object and the means by which the law embodies for achieving or procuring it.
Deane J gave what he called an “extravagant example” of a hypothetical law which lacked proportionality: one which required all sheep in Australia to be slaughtered, because Australia was a signatory to an international convention which required the taking of steps to prevent a disease which had not even been detected in Australia. His Honour said that: “The absence of any reasonable proportionality between the law and the purpose of discharging the obligation under the convention would preclude characterization as a law with respect to external affairs.” A law of this kind has also been described as one which uses a sledgehammer to crack a nut.
In the judgment of Deane J at paragraph 21 of his judgment, and I will just quote it your Honours will be able to look it up at your own leisure – at the end of the paragraph 21 he says:
In that regard, the “peculiar” or “drastic” nature of what the law provides are the fact that it pursues “an extreme course” is relevant to characterisation.
I think that this is what this by-law is, that this by-law take an extreme course.
FRENCH CJ: Well, you just say, as I understand it, and I do not want to put words in your mouth, but to understand your submission, you say there is a blanket prohibition on – although it is roads, it is a wide definition of “roads” and it is not saved by the permit system?
MR CORNELOUP: That is right, yes. It is a blanket prohibition. The other thing is that I think it is already been pointed out but there is no Judicial Review Act in South Australia like other States, like Queensland and sort of thing have go that, but we do not have that in South Australia, so that might be a relevant factor. So, it is sort of common law I am not aware of any means of judicial review myself. There may be something but I am not familiar with it.
The other thing I wanted to point out was – and that concludes my arguments on the implied freedom, but the certificate of validity basically that – I think this was pointed out by Mr Reynolds, I just wanted to clarify it to make sure I am getting this right. That the purpose of the specific provisions, it says that the provisions are to be mentioned on the certificate of validity, not the Act, because an Act, in my understanding, is not a provision, but the one of the purposes I think the local government regulations require that the certificate of validity, I think it is, like, 11 copies to be submitted to the legislative review committee, and to have the section specified so that they can see whether it is within power of the specified sections and if you simply just say, the Local Government Act, then it can be anywhere, and if the Court rules that you can just put the Local Government Act, then in the future that whole purpose becomes void and he just has to put on there, Local Government Act 1999, and there becomes no purpose to that, they do not have the advantage of looking at the specific sections on the certificate of validity.
Also, the Electronic Transactions Act, if I can get to that, but perhaps I could rely on some comments by his Honour Judge Stretton on his observations of the – page 406 is his Honour’s judgment. On page 433, paragraph 99, his Honour makes note of the Electronic Transactions Act and certificate of validity and says, starting at the words “Here the Council”. So:
Here, the Council were provided with what looked like an unsigned and undated draft, with only a moderate indirect inference in the agenda papers that it was a certificate signed by the solicitor. The form the agenda papers took was to cite the legislative requirement for a certificate, then just say “(attachment E)”.
It goes on to basically that the certificate of validity was then edited and was put on the of top by-law 4 and so forth, and when we look at the affidavit that was sent that there is vast edits to it, and one of the things which is imperative in the Electronic Transactions Act is that it not be altered at all. If I can just find that. I think that was part 10, I think, from memory. The Electronic Transaction Act on page 538 of the applicant’s book of legislation. It says:
(3) For the purposes of this section, the integrity of information contained in a document is maintained if, and only if, the information has remained complete and unaltered, apart from –
(a) the addition of any endorsement; or
(b) any immaterial change,
which arises in the normal course of communication, storage or display.
And (2)(a) says:
having regard to all the relevant circumstances at the time the communication was sent, the method of generating the electronic form of the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document; and
I think I have already quoted that section, I cannot find exactly where it is. But basically it requires it not to be changed or edited or altered and so forth.
KIEFEL J: I think perhaps you wanted to go on to subsection (3) which describes the integrity of information as being “the information has remained complete and unaltered”.
MR CORNELOUP: Yes, that is correct. The other thing as well to consider is with the distribution of literature is that it seems to be that the main objection is litter problems. If a permit was granted, how would that solve the litter problems? I do not think it would solve it at all unless you just simply put a requirement that they do their best not to allow other people or to pick up anything that has been placed on the floor or dropped on the floor. That can simply be something in a by-law but it really only marginally advances the purpose of litter and it has a massive prohibition on the distribution of literature just to do something which a permit system does not really even help anyway.
Also, with the words “harangue” if permission was sought, on what grounds would they allow permission to be given on the grounds of a narrow interpretation of “harangue” because it seems that the very behaviour that they are trying to stop is the narrow meaning of “harangue”. So, they may say, well, in pursuit of the comfort and convenience of the inhabitants we are not going to allow you to harangue, same with preaching as that as a legitimate end is not going to make much difference. I think that concludes my submissions.
FRENCH CJ: Thank you, Mr Corneloup. Solicitor-General.
MR HINTON: A hotchpotch of matters, your Honour. Firstly, section 10(3) of the Electronic Transactions Act where it refers to a document. It must be read, in my submission, as a document electronically communicated, therefore, where it refers to the “integrity” of the document or it being altered or in some way not remaining complete, it refers to that occurring as a consequence of the process of electronic communication, not as a consequence of manipulating the document after the communication has been received, as is the case here. With respect to the Subordinate Legislation Act 1978 – a copy has not been provided to your Honours – the Legislative Review Committee has no power of disallowance. What it does is reports. Once it reports a resolution may be moved in either house of Parliament that can disallow a by-law. It has a purpose - - -
FRENCH CJ: That is under the general disallowance powers?
MR HINTON: Yes, your Honour, section 10. It has a purpose that is different to a mechanism designed to ensure that someone acts within power. For example, could motivate a resolution designed to ensure that a State-wide policy is furthered by – or not altered or impaired – by a particular by-law. Can I move to the question of alternatives? We deal with this in our written submissions at paragraph 21.6. It is not enough to point to an alternative. Alternatives may give rise to an inference that what you had is not, in fact, within power, but ultimately the question is whether or not what you have is within power.
When we come to the North Eastern Dairy Case it is an example of the extreme, that being an extreme insofar as the impingement upon section 92 – I think, as I recall, it was pasteurisation in New South Wales or pasteurisation within a State – was so direct and that is what led Chief Justice Mason to look at alternatives. We see the same sort of reasoning - - -
KIEFEL J: But his Honour did not suggest it was not an exercise of power, as I recall it. I think it was not a proportionate or reasonable response to what the by-laws were attempting to achieve.
MR HINTON: And, therefore, beyond power.
KIEFEL J: Yes.
MR HINTON: Yes. It is a chain of reasoning. In effect, it performs an evidential function indicative of acting beyond power. We see the same sort of reasoning in the judgment of Justice Gaudron in the Levy Case, but there, significantly at 619 – as I recall – she, her Honour, refers to alternatives and drastic measures in the context of a law that directly impinges upon – or not directly impinges upon – but is aimed directly at political or government communication. So, alternatives have a very strong role to play when we are dealing with a law that burdens – or is a law about political or governmental communication and has that direct burden.
Hence, the importance of that distinction drawn in Hogan v Hinch, again referred to in the Wotton Case. In a case such as this, where we are not concerned with a law that directly acts upon political and governmental communication, the significance of alternatives is far less. They do not, just because they are there, demonstrate that you have a by-law that is beyond power.
KIEFEL J: Is that necessarily right? If the effect upon the freedom was more direct, you might be in the area of strict proportionality where you actually have to look at the extent of the burden and the object sought to be achieved because, if you are correct, if this is a purely incidental effect, you may not be in that territory. But, you may still be in the territory of, does it go too far which, I think, is language repeatedly used in section 92 cases and Lange – and Roach. Does it go too far in seeking to achieve its objective? That is the territory you might be in. And, that is where the alternative measures may be, as you say, some evidence – or indicative – of whether that is the case.
MR HINTON: I do not disagree. They perform that evidential function. The weight depends upon the degree of the intrusion. The more significant the intrusion, the more significant the alternative is in assisting with the decision. Yes. My submission is we are not there in this case. So, the alternatives, with respect, do not assist greatly in determining whether or not this by-law is within power.
A quick point with respect to Wotton’s Case, if I did not make it clear initially then I will do so now. Our submission was with respect to paragraphs [22] and [23], where this Court refers to a legislative provision that can stand on its own without severance or reading down – stand on its own in terms of respecting the constitutional restriction – then it is valid. Our argument is that the by-law, in this case, stands in the same position as the legislative provision in that case. By analogy, the two clauses in this case are in the same position as section 132(1)(d) to be read with 132(2).
Can I deal with the question of the practical content of the decision for the administrative decision-maker? That occupied a number of questions from your Honour Justice Hayne and Justice Kiefel during the course of the debate yesterday afternoon, and can I deal with it at a practical level? The decision-maker, whoever that person is, at the council, has a mandatory consideration they must take into account. They cannot exercise the power to determine whether or not to grant permission in a manner that is incompatible with the maintenance of the system of responsible and representative government required by the Constitution.
They have to take into account the fact that that system requires that electors be able to discuss between themselves issues relevant to government and political issues, they must be able to discuss with the Executive those issues and they must be able to discuss it with their representatives. That is a mandatory consideration.
HAYNE J: Must they be able to do that anywhere? Are you not entering the maze at a particular point, namely entering it at the point of the implied freedom? Is not the first step, construe the regulation, identify what the regulation, in its terms, would say about the exercise of the power to grant or refuse permit?
MR HINTON: Agreed. Here we are told not much by the by-law. We go back to subject matter, scope, purpose. We look then at factors such as place, time, content, how you propose to communicate and who else may be with you. We look at many of those things - - -
HAYNE J: Well, you have just slid over several intermediate steps.
MR HINTON: Agreed.
HAYNE J: Have you not got to be sure that by so sliding you are not obscuring the problem along the way? What are the intermediate steps?
MR HINTON: Place, you must bear in mind the definition of “road”, an intermediate step. You also would consider the place against the background of your knowledge of the local lie of the land. Who is going to resort there? Who is there? Time, time at which the applicant for permission seeks to preach or canvas. The intermediate step would be, well, at that time who else may be there? Can I put it this way? Content, not a matter of censorship, but a matter of determining who else might be there at the time and at the same place whom may be subjected to your preaching or canvasing.
You do not want two groups at the same place who are violently opposed to each other, so you would it manage it perhaps by offering them different timeslots and allowing one group time to clear out. Hence, that is an intermediate step. How? Well, you want to know exactly whether or not you are going to amplify this or you are going to stand on a ladder or a peach box or some such thing. Again, convenience, comfort and safety, all these things are linked back to, and who else, again, is the number of people who will be standing on the road or on the footpath, “accosting”, to use the word of Justice Kourakis, those who are seeking to pass and repass.
All those things, and their link back to convenience, comfort and safety, are to be exercised against the background of that mandatory consideration which is the wrong place to enter the thicket, but that is where I entered it. That is the process for decision-making, and along the way there may be imposed conditions again reflecting what you want to do, where you want to do it, when you want to do it and with whom.
Equally, there may be put back to you, as indeed is an option here - in the application forms you were asked for an alternative, first preference, second preference. All those questions, all those factors, part of the exercise of the discretion vested by the by-law, not in question here, but in answer to your Honour’s practical question, may be taken into account in a manner compatible with the implied freedom.
Does that mean, in answer to your Honour Justice Kiefel, that this burden is so significant, in effect, that it will be difficult to obtain permission, if I have correctly understood your Honour’s point? No. In actual fact, in my submission, the breadth of its application to roads and the options available are such that it is relatively easy to find, if I can put it this way, a timeslot and a place. It might not be your first preference or your second, but it is relatively easy to do so.
Proof: what we do know - appeal book page 132, paragraph 21 of Mr Battersby’s affidavit – is there are five people in Adelaide at the moment who have permits for preaching. It is not then, well, that is the only evidence I have got but it tends to suggest that it is not that difficult. All these things – the conditions, the factors – in one way or another are taken into account as part of those alternatives put by the second respondent to the Court.
The difference between what occurs under this by-law and what he puts to your Honours is one of a proactive as against a reactive response. Council has a responsibility for the convenience, comfort and security and it has adopted a proactive response. It cannot be said, having regard to the alternatives, that that is so unreasonable as to be beyond power.
My last point, if the Court pleases, is that the model by-law was not in force - the model by-law that Mr Corneloup took your Honours to was not in force at the relevant time. It did not come into force until 1 December 2011. My understanding is that between the council and the second and third respondent there is an uneasy truce at the moment and so that by-law is not being pursued at the moment. If the Court pleases, those are my submissions.
FRENCH CJ: Thank you, Mr Solicitor. The Court will reserve its decision. The Court adjourns until 2.15 this afternoon.
AT 12.28 PM THE MATTER WAS ADJOURNED
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