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Corneloup v Adelaide City Council

Corneloup v Adelaide City Council

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Case Copied 25 November 2010 82 min read

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DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative and Disciplinary Division)

CORNELOUP v ADELAIDE CITY COUNCIL

[2010] SADC 144

Judgment of His Honour Judge Stretton

25 November 2010

STATUTES - SUBORDINATE LEGISLATION - VALIDITY - ULTRA VIRES GENERALLY

Application pursuant to the District Court’s jurisdiction per s 276(1)(f) of the Local Government Act 1999 to determine the validity of paragraphs 2.3 and 2.8 of a by-law made by the Adelaide City Council which prohibits, subject to permission, haranguing, canvassing and preaching on the streets and thoroughfares of Adelaide. The applicants, church members who seek to preach in public, claim the by-law is ultra vires the Local Government Act 1999 and the Local Government Act 1934, and is invalid as an infringement of their implied constitutional freedom of political communication.
Held: The first three words of paragraph 2.3, and paragraph 2.8 are beyond the statutory regulation-making powers contained in the Local Government Acts, particularly as section 239 evinces an intention that by-laws concerning roads beyond the topics covered by that section may only be made where authorized by regulation. They are invalid. They are however severable, and the remainder of By-law no. 4 – Roads is valid. Therefore inappropriate to determine the constitutional issue.

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES

“The broadcasting of announcements or advertisements”, “public exhibitions or displays”, “soliciting for charitable or religious purposes”, “announcement”, “advertisement”, “broadcasting”.

STATUTES - SUBORDINATE LEGISLATION - CONSTRUCTION - PARTICULAR WORDS

“Preaching”, “canvassing”, “haranguing”.
Local Government Act 1934 s 667(1)9 XVI; Local Government Act 1999 s 239; Racial Discrimination Act 1975 (Cth) s 18C; Summary Offences Act 1953 s 7, s 33; Local Government (General) Regulation 1999 s 18A, s 239(1)(g); City of Adelaide Act 1998 s 37A; Electronic Transactions Act 2000 s 9(1)(a), s 249(4); Acts Interpretation Act 1915 s 22A(2), referred to.
Robinson v Western Australian Museum (1977) 138 CLR 283; Davis v Commonwealth (1986) 61 ALJR 32; Proud v City of Box Hill [1949] VLR 208; National News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Springvale Washed Sand Pty Ltd v City of Springvale [1969] VR 784; Project Blue Sky v ABA [1998] HCA 28; Evans v State of New South Wales [2008] FCAFC 130; Footscray Corporation v Maize products Pty Ltd (1943) 67 CLR 301; Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463; McEldowney v Forde [1969] 2 All ER 1039; Shanahan v Scott (1957) 96 CLR 243; Paull v Munday (1976) ALR 245; Unsworth v Commissioner for Railways (1958) 101 CLR 73; SGIC (Qld) v Crittenden (1966) 177 CLR 412; R v Laws [2000] NSWSC 880; R v Forgione [1969] SASR 248; R v De Kromme 66 L.T. 301; Killick v Graham [1898] 2 Qb 196; Re A Solicitor [1945] KB 368; Burge v DPP

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

Case: [2010] SADC 144
Decision Date: 25 November 2010

CaseChat Overview and Summary

In Corneloup v Adelaide City Council, the applicants, members of a church, challenged the validity of certain by-laws enacted by the Adelaide City Council. These by-laws prohibited, subject to permission, activities such as haranguing, canvassing, and preaching on the streets and thoroughfares of Adelaide. The applicants argued that the by-laws were beyond the statutory powers of the Council, were an infringement of their implied constitutional freedom of political communication, and were thus invalid.

The central legal issues in this case revolved around the interpretation and scope of the Local Government Acts, specifically the Local Government Act 1999 and the Local Government Act 1934. The applicants contended that the by-laws exceeded the Council's regulatory powers and were therefore ultra vires. Additionally, they argued that the by-laws infringed upon their freedom of political communication, which is implied by the Australian Constitution. The Court needed to determine whether the by-laws were within the statutory authority granted to the Council and whether they were valid under the relevant legislative framework.

The Court found that paragraphs 2.3 and 2.8 of the by-law were indeed beyond the statutory regulation-making powers of the Council. This conclusion was based on the interpretation of section 239 of the Local Government Act 1999, which indicated that by-laws concerning roads could only be made if authorized by regulation. The Court concluded that these parts of the by-law were invalid because they were not authorized by regulation. However, the Court also determined that the invalid provisions were severable, meaning that the remainder of the by-law could stand. Therefore, the Court did not deem it necessary to address the applicants' constitutional arguments.

The final orders of the Court were that paragraphs 2.3 and 2.8 of the by-law were invalid, but the remainder of By-law no. 4 – Roads was deemed valid. The Court found it unnecessary to determine the constitutional issue of freedom of political communication.

Orders