FRENCH CJ, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA APPELLANT
AND
THE CORPORATION OF THE CITY OF ADELAIDE & ORS RESPONDENTS
Attorney-General (SA) v Corporation of the City of Adelaide
[2013] HCA 3
27 February 2013
A16/2012
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.
On appeal from the Supreme Court of South Australia
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)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3
Case
[2013] HCA 3
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning a by-law made by the Corporation of the City of Adelaide that prohibited preaching and distributing printed matter on any road without permission. The Attorney-General (SA) appealed against a decision of the Full Court of the Supreme Court of South Australia, which had found the by-law to be invalid. The dispute centred on whether the by-law impermissibly burdened the implied freedom of political communication guaranteed by the Australian Constitution.
The legal issues before the High Court included whether the by-law effectively burdened the freedom of political communication, and if so, whether it was reasonably appropriate and adapted to achieving a legitimate end in a manner compatible with the system of representative and responsible government. The Court also considered whether the by-law making power under the *Local Government Act 1934* (SA) had been exceeded, and whether the by-law represented a reasonable and proportionate exercise of that power.
The High Court reasoned that the implied freedom of political communication is not an absolute personal right but rather a restriction on legislative power, meaning some restrictions may be permissible. The Court applied the test established in *Lange* and explained in *Monis v The Queen* to determine if the by-law exceeded the limits of this constitutional constraint. The Court disagreed with the Full Court's view that any requirement for advance permission is incompatible with the freedom.
The High Court allowed the appeal, setting aside the orders of the Full Court and the District Court of South Australia. The application to challenge the validity of the by-law was dismissed, and the appeal to the Full Court concerning the by-law was also dismissed.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
BELL J
The Full Court held that the requirement of permission is incompatible with the freedom[313]. It is evident from the statement that "[m]embers of a democratic society do not need advance permission to speak on political matters" that the Full Court considered that the freedom is in the nature of a personal right and one which is absolute. With respect, this involves a misunderstanding of the freedom. It operates as a restriction upon legislative power, not as a right, and is not absolute. Some restriction upon the freedom may be permissible. Whether legislation exceeds the limits of that constraint, and is therefore invalid, falls to be determined by reference to the test in Lange, as explained in Monis v The Queen.[313]Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334 at 374 [159].Conclusion and orders The appeal should be allowed and the orders of the Full Court of the Supreme Court and the District Court of South Australia set aside. In lieu thereof there should be orders in the terms proposed by Hayne J. No orders for costs are sought. I agree with the orders proposed by Hayne J. I am in substantial agreement with the reasons of Crennan and Kiefel JJ for the making of those orders save with respect to the rejection of the second and third grounds of the third respondent's Amended Notice of Contention. These grounds contended that the impugned provisions are invalid because they are not a reasonable or proportionate exercise of the power under the Local Government Act 1934 (SA). I agree with Hayne J's reasons for rejecting each of these contentions.