Smith v Western Australia

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ.,Hayne J.,Heydon J.,Crennan,Kiefel JJ.,Bell J.
• Judgment Date: 27 February 2013
• Neutral Citation: 2013-0227 HCA B,[2013] HCA 3
• Docket Number: A16/2012
• Date: 27 February 2013

[2013] HCA 3

HIGH COURT OF AUSTRALIA

French CJ,, Hayne,, Heydon,, Crennan,Kiefel and Bell JJ

A16/2012

Attorney-General for the State of South Australia

Appellants

and

The Corporation of the City of Adelaide & Ors

Respondents

Representation

M G Hinton QC, Solicitor-General for the State of South Australia with L K Byers for the appellant (instructed by Crown Solicitor (SA))

M J Roder SC with R F Gray for the first respondent (instructed by Norman Waterhouse Lawyers)

The second respondent, C Corneloup, appeared in person

G O'L Reynolds SC with J C Hewitt and G R Rubagotti for the third respondent (instructed by Banki Haddock Fiora)

Interveners

T M Howe QC with C D Bleby SC for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with A M Mitchelmore for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

S G E McLeish SC, Solicitor-General for the State of Victoria with A D Pound for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

G R Donaldson SC, Solicitor-General for the State of Western Australia with R B Phillips for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

R Merkel QC with E M Nekvapil and N M Wood for the Human Rights Law Centre, as amicus curiae (instructed by DLA Piper Australia)

Constitution, ss 7, 24, 128.

Electronic Transactions Act 2000 (SA), ss 9(1), 10(3).

Local Government Act 1934 (SA), ss 667(1) 4 I, 667(1) 9 XVI.

Local Government Act 1999 (SA), ss 4(1), 246(1)(a), 246(2), 248(1)(a), 249(4).

By-law No 4 — Roads, pars 2.3, 2.8.

Attorney-General (SA) v Corporation of the City of Adelaide

Constitutional law — Implied freedom of communication on government and political matters — Where by-law prohibited preaching and distributing printed matter on any road without permission — Whether by-law effectively burdened freedom of political communication — Whether by-law reasonably appropriate and adapted to achieving legitimate end in manner compatible with system of representative and responsible government.

Local government — Where power to make by-laws ‘for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants’ — Whether generally expressed by-law making power must be narrowly or restrictively construed — Whether by-law exceeded limitations on power delegated to local government under Local Government Act 1934 (SA) — Whether by-law complied with limitations and procedures prescribed by Local Government Act 1999 (SA) — Whether by-law was reasonable and proportionate exercise of by-law making power.

Words and phrases — ‘could not reasonably have been adopted’, ‘legitimate end’, ‘licence’, ‘political communication’, ‘principle of legality’, ‘proportionality’.

ORDER

1. Appeal allowed.

2. Set aside paragraph 1 of the orders of the Full Court of the Supreme Court of South Australia made on 10 August 2011 and, in its place, order that:

(a) the appeal to that Court be allowed; and

(b) the orders of the District Court of South Australia made on 25 November 2010 be set aside and, in their place, order that:

(i) the application of Samuel Corneloup dated 2 November 2009 be dismissed; and

(ii) so much of the appeal of Caleb Corneloup by notice dated 28 July 2010 as sought to challenge the validity of By-law No 4 — Roads made by the Corporation of the City of Adelaide on 10 May 2004 be dismissed.

French CJ.

Introduction

1 Caleb Corneloup, the second respondent, is the President of an incorporated association known as ‘Street Church’. Samuel Corneloup, the third respondent, describes himself as an ‘expositor of the Gospel’. Each has preached his religious beliefs and associated political beliefs in the City of Adelaide (‘the City’). Each has done so without permission from the Corporation of the City of Adelaide (‘the Council’), which was required by By-law No 4, entitled ‘Roads’. The third respondent was convicted in the Magistrates Court of South Australia on 27 July 2010 1 and fined $250. His appeal against that conviction is pending in the Supreme Court of South Australia. The second and third respondents, Street Church and a number of other persons are the defendants to an injunction proceeding commenced by the Council in the Supreme Court. The Council sought to restrain those defendants from preaching, canvassing, haranguing or distributing printed material within the area of the City, unless they held a permit to do so as required by pars 2.3 and 2.8 of By-law No 4. The injunction proceeding has also been adjourned, pending the outcome of the proceeding before this Court.

2 On November 2009 and 28 July 2010 respectively, the third respondent and the second respondent filed applications in the Administrative and Disciplinary Division of the District Court of South Australia seeking declaratory relief 2. In the District Court they argued that pars 2.3 and 2.8 of By-law No 4 were invalid as they were outside the by-law making power conferred by the Local Government Act 1999 (SA) (‘the 1999 Act’). They further argued that the paragraphs were invalid because they infringed the freedom of political communication implied from the Constitution of the Commonwealth of Australia.

3 His Honour Judge Stretton found that those parts of par 2.of By-law No 4 which prohibited haranguing, canvassing and preaching on a road without a permit, and the whole of par 2.8, which prohibited distribution of literature, were beyond the by-law making power conferred by s 239 of the 1999 Act and s 667 of the Local Government Act 1934 (SA) (‘the 1934 Act’) 3. His Honour found it

unnecessary to determine whether, if they were otherwise within power, the provisions of By-law No 4 infringed the implied freedom of political communication 4. He made declarations of invalidity.

4 The Council appealed to the Full Court of the Supreme Court. The appeal was dismissed 5. Kourakis J, who wrote the judgment of the Court, with which Doyle CJ and White J agreed, held that the impugned provisions were a valid exercise of the power conferred by s 667(1)(9)(XVI) of the 193Act to make laws ‘for the convenience, comfort and safety’ of the inhabitants of the City 6. However, his Honour went on to hold that par 2.3, by prohibiting preaching, canvassing and haranguing on a road without a permit, infringed the implied freedom of political communication, as did the whole of par 2.8 7, and that the appeal should be dismissed.

5 On 11 May 2012, this Court granted the Attorney-General for the State of South Australia, who had been a respondent to the proceedings in the Full Court, special leave to appeal against the judgment of the Full Court 8. For the reasons that follow the appeal should be allowed.

The proceedings in the District Court

6 The jurisdiction of the District Court to hear the applications brought by the second and third respondents derived from s 27of the 1999 Act 9. That section creates a ‘Special jurisdiction’ defined by reference to classes of proceedings which ‘may be taken before, and determined by, the District Court’ 10. They include ‘proceedings to try the validity of a by-law’ 11. The District Court has power in such proceedings to make an order ‘declaring a

by-law to be invalid’ 12. Such proceedings may be brought by any person ‘with a material interest in the matter.’ 13 The second and third respondents commenced their proceedings on the basis that each of them had ‘a material interest in the matter’ 14. Their standing was not in issue in this appeal.

7 The challenge to the validity of pars 2.3 and 2.8 of By-law No 4 was based in part upon their alleged infringement of the freedom of political communication implied in the Constitution. The District Court was therefore exercising federal jurisdiction in a matter arising under the Constitution or involving its interpretation. That federal jurisdiction is conferred by s 39(2) of the Judiciary Act 1903 (Cth) as jurisdiction in a matter in which the High Court has jurisdiction, or can have jurisdiction conferred upon it pursuant to s 76 of the Constitution.

8 The declaration made by the District Court was in the following terms:

The form of the declaration, which was left in place by the order of the Full Court dismissing the appeal from the District Court, leaves something to be desired. Individual words of a by-law have no legal operation and are not amenable to declarations of invalidity. Severance is not an act of remedial amputation carried out by the court. It is the application of a constructional rule 15. The rule derived originally from the common law 16. It is now reflected in

statutory provisions such as s 13 of the Acts Interpretation Act 1915 (SA) 17, which applies to delegated legislation in South Australia. The effect of the declaration made by the District Court was clear enough and no point was taken about its form. It is necessary now to refer to the provisions of the 1934 and 1999 Acts relevant to the by-law making powers of the Council.

• ‘1. The words “preaching”, “canvassing” and “haranguing” in paragraph 2.3 of “By-law No 4 — Roads” of the Corporation of the City of Adelaide are declared to be invalid and are severed from the By-law.

• 2. Paragraph 2.8 of “By-law No 4 — Roads” of the Corporation of the City of Adelaide is declared to be invalid and is severed from the By-law.’

The statutory framework-the 1934 and 1999 Acts

9 This appeal is concerned with the validity of a by-law made by the Council. The term ‘by-law’ is not defined in either the 1934 Act or...