By Professor Adrienne Stone
Two weeks ago, the Federal Court dismissed a challenge by members of Occupy Melbourne against the enforcement of bans on camping and advertising in inner Melbourne’s squares and gardens. Justice North relied in large part on a High Court ruling from March, concerning Samuel Corneloup and his brother Caleb, members of a street church that regularly engaged in preaching on the Rundle Mall in Adelaide. Their noisy preaching gave rise to one of two important freedom of political communication cases in the High Court this year: Attorney-General (SA) v Corporation of the City of Adelaide  HCA 3 (‘Corneloup’s Case’). (The other, Monis v The Queen  HCA 4, is discussed here.)
Adelaide’s preaching ban
Preaching on the Adelaide mall (like other ‘roads’) is subject to Council By-Law No 4 which (subject to exceptions for election campaigning) provides that ‘[n]o person shall without permission on any road
2.3 preach, canvass, harangue, tout for business or conduct any survey or opinion poll …
2.8 give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter.
Disputes arose between the Corneloup brothers and the Adelaide City Council over the Corneloups’ preaching that resulted, first, in the conviction of Samuel Corneloup in the Magistrates Court of South Australia in 2010 and, second, in separate proceedings brought by the Council to restrain the Corneloups and others from preaching on the Rundle Mall.
The Corneloups’ challenge
This third set of proceedings was commenced by the Corneloups seeking a declaration that paras 2.3 and 2.8 of By-Law No 4 were invalid. The Corneloups succeeded in the District Court and (on different grounds) in the Full Court of the Supreme Court of South Australia.
The High Court considered two questions:
- The Statutory Interpretation Question: first it was argued that the challenged paragraphs of the by-law were invalid because they were beyond the by-law making power conferred by the relevant South Australian statutes (as was held by the District Court); and
- The Constitutional Question: second, it was argued that these paragraphs of By-Law No 4 infringed the implied freedom of political communication (as was held by the Full Court of the Supreme Court of South Australia).
In stark contrast to the close division in Monis, a clear majority of five Justices (French CJ, Hayne, Crennan, Kiefel and Bell JJ) allowed the appeal and held that relevant statues empowered the Council to make the impugned by-law and also rejected the contention that the impugned provisions were constitutionally invalid. Justice Heydon dissented.
The majority dismissed both arguments and upheld the appeal court’s finding
- That By-Law No 4 was a valid law within the power conferred by s 667(1)(9)(XVI) of the Local Government Act 1934 (SA) (the ‘by-law making power’); and
- That while the law did burden political communication, it was a reasonable or proportionate limitation made in the interests of securing the safe and convenient use of the roads.
On one level the case is entirely unsurprising. There is an obvious case for protecting expression in these circumstances but there is also a compelling reason to limit it.
Free speech in public places
The use of public areas — like Rundle Mall — for political communication is clearly central to the system of representative and responsible government protected by the Constitution. For this reason, democracies typically value freedom of speech in public places very highly. In the United States, the protection for freedom of expression in public places is even stronger, dating at least to the Supreme Court of the United States’ memorable opinion Hague v Committee for Industrial Organization, 307 US 496 (1939), in which Justice Roberts, delivering that opinion, said:
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.
(See also DPP v Jones  UKHL 5, in which the House of Lords, with some reliance on common law rights of freedom of assembly, held that a peaceable non-obstructive meeting on a public road did not necessarily amount to trespass.)
But in neither the United Kingdom nor even the United States is the right to use such roads unlimited. Reasonable ‘time, place, and manner’ restrictions are permitted. However, in the United States there are a myriad of other rules including a prohibition on laws that discriminate in favour of some ideas over others (see Police Department of the City of Chicago v Mosley, 408 US 92 (1972)). Moreover, the High Court has always accepted that the freedom of political communication is not absolute. Thus the acceptance that reasonable limits can be placed on the use of public roads for political purposes is both consistent with the established law and well within the international mainstream.
The case is more interesting for what it indicates about the High Court’s method in cases of this kind. The agreement among the five members of the Court who accepted that By-Law No 4 was within the power conferred by the Local Government Act 1934 (SA) conceals two apparently different approaches.
Does South Australian law permit local councils to ban public preaching?
Argument on the first point turned on the construction of s 667(1)(9)(XVI) of the Local Government Act 1934 (SA) which conferred a power to make laws for the “good rule and government of the area, and for the convenience, comfort and safety of its inhabitants.’
Justices Crennan and Kiefel take Justice Dixon’s judgment in Williams v Melbourne Corporation  HCA 56 as their starting point. The validity of the by-law is determined by considering ‘the true character of the by-law, its nature and purpose … in order to determine whether it could not reasonably have been adopted as a means of attaining the purposes of the power’. These Justices hold that the test adopted there bore ‘an obvious affinity with a test of proportionality’ (which their Honours had adopted in Monis v The Queen  HCA 4). Their Honours therefore approach the question of the by-law’s validity as a question of whether it is ‘a reasonable means of attaining the ends of the rule-making power’.
Chief Justice French’s approach to proportionality had two distinctive features. First, he adopts a ‘high threshold test’ for unreasonableness. That is, unreasonableness as a ground for establishing invalidity will be established only where a by-law ‘cannot reasonably be regarded as being within the scope or ambit or purpose of the power’. In addition, the Chief Justice focuses on the principle of legality, holding that that the by-law making power is to be read ‘by reference to the common law principle of legality … in so far as it concerns the common law freedom of expression.’
Perhaps the more orthodox approach is found in the reasons of Justice Hayne (with whom Justice Bell agreed on this point) who treated the question of whether the by-law was within power as one of sufficiency of connection. Like the other majority justices, Justice Hayne relies on the judgment of Justice Dixon in Williams v Melbourne Corporation. However, he takes that case as establishing that the ‘legal and practical effect’ of the by-law must be such that it has a ‘sufficient connection’ to the by-law making power, an inquiry informed by ‘due regard to “accepted notions of local government”’ and the fact that local government authorities have superior knowledge of the locality in which the by-laws are to operate.
The difference between this approach and the proportionality approach is underlined by Justice Hayne:
The question to be asked and answered is not whether the by-law is a reasonable or proportionate response to the mischief to which it is directed but whether, in its legal and practical operation, the by-law is authorised by the relevant by-law making power.
Does the Australian Constitution allow bans on public preaching?
The treatment of the second argument — the challenge based on the freedom of political communication — mirrors the treatment of the first. The Justices agree on many points, but are divided as to the place of proportionality analysis.
All the Justices take as their starting point the accepted two-stage test found in Lange v Australian Broadcasting Corporation  HCA 25 as modified in Coleman v Power  HCA 39. The first question is whether the impugned law ‘effectively burden[s] freedom of communication about government or political matters either in its terms operation and effect’. All the Justices proceed on the basis that (as was conceded in this case) the by-law does burden political communication.
The outcome depends therefore on the second stage of the Lange test, which (as slightly reformulated in Coleman v Power) asks:
Is the law reasonably appropriate and adapted to serve a legitimate end and in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
All the majority Justices upheld the law as a reasonable limitation on freedom of political communication but treat the second stage of the test somewhat differently.
As with the first issue, and consistently with their judgments in Monis, the Chief Justice and Justices Crennan and Kiefel deal with the question as one of proportionality. (On this question they are joined by Justice Bell, also an author of the Monis joint reasons).
Justices Crennan and Kiefel’s treatment of the proportionality question has three parts. First, like the Chief Justice, they characterise the purpose of the law as protecting the ‘safety, comfort and convenience of road users’. Secondly, their Honours considered that the law was proportionate to its purpose. In doing so, their Honours gave careful attention to the question of whether there were other, less drastic means available and concluded that the system of permissions implemented by the by-law was the most practical means of securing the safe and convenient use of the roads.
Thirdly, they held that the law was proportionate in its effects upon the system of representative government which is the object of the implied freedom. This inquiry involves an assessment of the extent to which the law is likely to restrict political communication.
It was important to their Honours’ finding that the Council’s discretion to refuse permission must be exercised conformably with the purpose of the by-law and that therefore ‘it may be assumed that permission will be denied only where the activities in question cannot be accommodated’ with the safe and convenient use of the roads.
The Chief Justice’s treatment of the freedom of political communication problem is brief. Like Justices Crennan and Kiefel he treats the question of whether the laws are ‘reasonably appropriate and adapted to serve a legitimate ends’ as one of proportionality.
He notes the limited nature of the burdens imposed. In addition to the exception for activity related to elections and referenda:
They are confined in their application to particular places. They are directed to unsolicited communications. The granting or withholding of permission … cannot validly be based on approval or disapproval of their content. The restriction does not apply to a designated area known as ‘Speakers Corner’.
Justice Hayne’s reluctance to embrace ‘proportionality’ is seen again in his treatment of this question. His Honour prefers to use the language of the Court in Lange, which he does not appear to equate with ‘proportionality’.
The second limb of the Lange test, as restated by Justice Hayne contains two separate inquiries: (1) is the object or end of the law ‘compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’ and (2) is the law ‘reasonably appropriate and adapted to achieving that legitimately object or end’ in a manner which is compatible with the maintenance of that system of government.
On the first question, it was accepted by all parties that the by-laws pursued a legitimate object in ‘the prevention of the obstruction of the roads’. (Justice Hayne rejected the arguments that the object was ‘safe use of the roads’ or ‘keeping of the peace’ which are better understood as consequences of preventing obstructions of the roads rather than the laws’ object). Moreover, he held that the laws were reasonably appropriate and adapted to that end but this finding depended on a narrow construction of the power to give consent under the by-laws:
The only purpose of the impugned provisions is to prevent obstructions of the roads. It follows that the power to grant or withhold consent to engage in the prohibited activities must be administered by reference to that consideration and no other.
Read in this light — and in light of the exception for election campaigning — the law ‘adequately balances the competing interests in political communication and the reasonable use by others of a road’.
There is therefore a divergence of opinion as to the place of proportionality analysis though the contours differ with respect to each of the two issues:
- The Statutory Interpretation Question: In relation to the statutory interpretation question Chief Justice French and Justices Crennan and Kiefel employ proportionality analysis while Justices Hayne and Bell prefer a ‘sufficiency of connection’ analysis.
- The Constitutional Question: In relation to the freedom of political communication question Chief Justice French and Justices Crennan and Kiefel are joined by Justice Bell in the use of proportionality, whereas Justice Hayne employs the second limb of the Lange test without the use of ‘proportionality’ language.
This division of opinion raises a question as to whether there is a real difference between the two approaches, especially since there is no difference in the result.
In the characterisation context at least, there are strong reasons to regard ‘proportionality’ as a different test from ‘the sufficiency of connection test’. The traditional approach to characterisation is very deferential towards the Parliament. In Justice Kitto’s famous words in assessing the validity of a law:
How far [the Parliament] should go was a question of degree for the Parliament to decide, and the fact that the Parliament has chosen to go to great lengths — even the fact, if it be so, that for many persons difficulties are created which are out of all proportion to the advantage gained — affords no ground of constitutional attack.
By contrast, in the few cases where the proportionality formula has been employed in the interpretation of grants of Commonwealth power (a practice from which the High Court has apparently resiled since Leask v Commonwealth  HCA 29), it has proved to be a more rigorous tool of judicial review. When employing the language of proportionality the High Court would ask whether the end could be pursued by less drastic means, and it has been particularly sensitive to laws that impose adverse consequences unrelated to their object, such as the infringement of basic common law rights. (See a more detailed discussion here.)
In the context of characterisation, then, the employment of the language of proportionality by Justices Crennan and Kiefel may mark a different and more ‘interventionist’ approach to determining validity. However, it is too soon to conclude that this approach is on the ascendency. First, it is open to doubt whether Chief Justice French’s position is similarly indicative of greater judicial scrutiny. He is clear that ‘unreasonableness’ will be difficult to establish in this context and thus his Honour’s approach may be closer to the traditional characterisation analysis. Second, in any event, any ‘new’ approach may be confined to this context. That is, it may apply only to determining whether delegated legislation (such as a by-law) is within a statutory power rather than the question of whether Commonwealth legislation is within constitutional power.
But as I have previously argued (here) in the context of the freedom of political communication the two tests appear to be conceptual and practical equivalents.
The conceptual equivalence is evident from the fact that both tests, considered on their face, could encompass a consideration of:
- whether a law is actually serving the end it purports to serve;
- the availability of alternative, less drastic means by which that same end could be achieved; and
- whether the end pursued by that law is worth the restriction or costs imposed.
In practice, moreover, it seems that the High Court does engage in each of these inquiries in applying the freedom of political communication even where it uses the language of ‘reasonably appropriate and adapted’ (as argued in more detail here). Indeed, in Lange, the Court is explicit that the test it enunciates is equivalent to ‘proportionality’.
Thus the use of proportionality language in this context is not as significant. It serves to reaffirm the long-established approach of the Court to the freedom of political communication. As suggested in this post, the preference for the language of proportionality however may be significant for indicating judicial interest in European and Canadian law rather than in the law of First Amendment.
AGLC3 Citation: Adrienne Stone, ‘Freedom to Preach in Rundle Mall: Attorney-General (SA) v Corporation of the City of Adelaide (‘Corneloup’s Case’)’ on Opinions on High (14 October 2013) <http://blogs.unimelb.edu.au/opinionsonhigh/2013/10/14/stone-corneloup>.
Professor Adrienne Stone is Director of the Centre for Comparative Constitutional Studies and Professor of Law at the Melbourne Law School.