Corneloup v Adelaide City Council - [2010] SADC 144

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 [1962] 1 W.L.R 265; Weisz v Monahan [1962] 1 WLR 262; Jitjarden v Thompson (1995) 85 A Crim R 24; Lynch v Brisbane City Council (1960) 104 CLR 353; Seelinson v City of Melbourne [1935] VLR 365; Leslie v City of Essendon [1952] VLR 222; Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54; Commonwealth v Tasmania (1983) 46 ALR 625; South Australia v Tanner (1989) 166 CLR 161; Grace Bible Church v Reedman (1984) 36 SASR 376; Bank of New South Wales v Commonwealth (1948) 76 CLR 1; Rice v Daire (1982) 30 SASR 560; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; R v Smithers; Ex part Benson (1912) 16 CLR 99; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556; Federal Commissioner of Taxation v Munro (1926) 38 CLR 153; Attorney-General (Victoria) v Commonwealth (1945) 71 CLR 237; Chung Kim Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1, discussed.

CORNELOUP v ADELAIDE CITY COUNCIL
[2010] SADC 144

Introduction

These are two applications to try the validity of a by-law[1] that prohibits[2] preaching or indeed any public speaking[3] on the streets and thoroughfares of Adelaide.
[1]"By-Law No.4 - Roads" made by the Adelaide City Council pursuant to the by-law making provisions of the Local Government Act 1999.
[2] Subject to permission being obtained from the Adelaide City Council.
[3] Quaintly described as ‘haranguing’ by the relevant by-law, see analysis later in this judgement and the cited authorities thereto
The Adelaide City Council (“the Council”) has passed a by-law which prohibits amongst other things any person from ‘preaching’, ‘canvassing’ or ‘haranguing’ on any street or thoroughfare in the City of Adelaide without a permit from the Council to do so[4].
[4] By-Law No.4 - Roads”.
The applicants are brothers aggrieved at this prohibition. Caleb Corneloup is president of an Incorporated Association called Street Church. The objects of that association are to preach and administer the gospel around the city of Adelaide including preaching on topics that are of a substantially political nature. Mr Corneloup also works on behalf a candidate who recently stood for election as a member of “The Christian Democratic Party”, and he seeks to preach on issues relevant to the recent Federal election and politics generally to, as he puts it, “inform the public of the Biblical perspectives on Australian society and political candidates”. He says the Street Church has made two applications to the Adelaide City Council for permits pursuant to a regulation that otherwise prohibits them from preaching on the streets of Adelaide.
The other applicant, Samuel Corneloup says that he has been fined by the Respondent on many occasions for preaching “the Gospel in the streets of Adelaide (CBD)”. He says his preaching is political in nature as it touches upon political issues. He is currently unable to pay fines and costs levied against him for breaches of the by-law. He states he is “unwilling to apply for a permit because it is against my religious beliefs to ask others for permission to preach the Glorious Gospel of Jesus Christ”.

The statutory jurisdiction

Pursuant to section 276(2)(d) of the Local Government Act 1999 (“The Act”) any person with a material interest in the validity of a by-law may take proceedings before the District Court for an order to declare the by-law to be invalid.

The applicants’ interest

The applicants say they have an interest entitling them to apply pursuant to section 276 of the Act for an order declaring this by-law to be invalid. The applicant Caleb Corneloup maintains in his application that;
1. I seek to engage in public speaking before and after the Federal election coming up.
2. The council by-law prohibits any public speaking in Rundle Mall and or any other public road.
3. The by-law prohibits the distribution of political literature throughout all roads in the CBD without council approval.
4. This is a serious and undue burden of free speech and seriously restricts my ability to spread information in order to influence elections.
Both applicants have provided affidavit evidence. In an affidavit dated 13 August 2010, Caleb Corneloup states;
The Adelaide City Council prohibits the distribution of literature in Rundle Mall and outside government buildings such as Parliament House and Town Hall. The Council also will not issue permits to distribute literature on Wednesdays and Fridays, Friday being the busiest day in the city. The Council will not permit public speaking in Rundle Mall or outside of government buildings. The Council also requires a $10 million liability insurance in order to distribute literature and do public speaking. This is a serious hindrance to political communication and hinders my influence on politics. I seek to have this case heard urgently as there is no statutory empowerment given to the Council to make such restrictions, political or otherwise. There is also a criminal case in the Magistrates Court of which I am the complainant. This case is affected by the by-law.
By affidavit dated 16 August 2010, he says;
I am the president of Street Church, which is an incorporated association. The objects of the association are to preach and minister the Gospel around the city of Adelaide (CBD). We believe our preaching can and does directly affect politics, including the current Federal election as we frequently preach on topics that are of a substantial political nature. We are also working closely with and on behalf of Joseph Stephen who is a candidate for “The Christian Democratic Party”. Our religious beliefs and doctrines frequently attract public debate and have political consequences. We seek to preach on issues relevant to the Federal election to inform the public of the Biblical perspectives on Australian society and political candidates. Topics include abortion, same sex marriage, teenage binge drinking, internet pornography, internet filtering, the supremacy of God over man, the unscientific nature of evolution being taught in our schools etc.
Jesse Chetcuti has made two applications on behalf of Street Church, one on the 29/06/09 and one on the 23/10/09, the second application being sent by registered mail. The Adelaide City Council has not responded to either of these applications. We have also had frequent contact with the Council and their legal representatives in relation to this issue and they have been unwilling to issue us permits. I have also laid a complaint against SAPOL officer Sergeant Leon Robert Michael in the Magistrates Court for disturbing a religious service in Rundle Mall (section 7(a) of the Summary Offences Act). The successful prosecution of this officer depends on the relevant sections of by-law being tried for validity in order to establish in a case the lawfulness of the religious service that was disturbed. This has been listed for hearing on the 18/08/10. My brother Samuel Corneloup has also received expiation notices and been prosecuted in the Magistrates Court for non-payment of fine. My brother does not have sufficient understanding of the law to properly defend himself and so I have taken an interest in the validity of this by-law and seek to have its validity tried. I seek to have this matter heard urgently as we seek to use the time period before and after the Federal election to our advantage in order to influence politics.
Caleb Corneloup further developed his perspective in another affidavit, dated 23 August 2010. Whilst unnecessary to set it out in full, he says;
… I believe, and seek to prove that the political aspect of my preaching is an inseparable part of preaching God’s Word and thus the preaching falls under the protection of the implied freedom of political communication found within the South Australian and Commonwealth Constitution. My views are strongly aligned with the views of the “Australian Christian Democratic Party” which is a federal party, and “Abort SA”, a state party.
The second appellant is Samuel Corneloup. By affidavit dated 17 August 2010, he says;
I am an expositor of the Gospel and I exposit the Gospel in the streets of Adelaide (CBD). I wish to test the validity of the by-law. My material interest in the validity of this by-law is the many fines I have received ($35 each) and the $800 I owe the council deriving from prosecution costs relating to this by-law. I challenge its validity on the basis that it is in conflict with the Local Government Act 1999 and unreasonably infringes the implied freedom of political speech. My preaching is political in nature as it touches upon many political issues and this is protected by the implied freedom of political communication found in relevant sections of our Constitution. The outline of my case is the same as that which was filed by my brother Caleb Corneloup and was given to Adelaide City Council’s legal representatives on the 18/5/10 during my trial. Unfortunately the defence was not addressed by the Magistrate during my trial. I seek leave to have my brother Caleb Corneloup speak on my behalf in relation to this issue I wish to have the validity of the by-law tested so I do not have to pay the fines and costs of Adelaide City Council as the by-law is ultra-vires the Act. The costs I have incurred exceed $1500. I am unwilling to apply for a permit because it is against my religious beliefs to ask others for permission to preach the Glorious Gospel of Jesus Christ. Neither am I willing to submit to the conditions the council has in place for receiving such a permit to preach.
A further affidavit was filed on the applicants’ behalf by Mr Jesse Chetcuti. It reads;
I am the secretary of the incorporated association named “Street Church”. On the 29/06/09 and the 23/10/09, on behalf of Street Church, I sent applications for a permit to preach in Rundle Mall and Hindley Street. The second application was sent by registered mail. The Adelaide City Council did not respond to either application. Street Church is currently working with and on behalf of Joseph Stephen who is a candidate for “The Christian Democratic Party”, seeking to influence politics by our preaching.
In the context of an Act regulating what may or may not occur within a council area, a person whose proposed and otherwise lawful conduct will be prohibited by a by-law is in my view a person with a material interest in its validity.
See also the general test of standing to raise a constitutional issue articulated by the High Court in Robinson v Western Australian Museum (1977) 138 CLR 283 and Davis v Commonwealth (1986) 61 ALJR 32. That test requires a person to be affected by the law more particularly than other people.
I find that this material establishes that both applicants have a material interest in the validity of a by-law that purports to restrict the otherwise lawful activities they either currently conduct or propose to pursue on the streets of Adelaide.
Were this simply an application by Samuel Corneloup on the basis he could not pay his fines, then I would likely decline to entertain the application. In that event the most appropriate course would be for that applicant to appeal his conviction and penalty.
Caleb Corneloup however has no convictions and he personally and on behalf of his church are prevented by the by-law in question from preaching and propounding their political views on the streets of Adelaide. The statutory jurisdiction of this court is there specifically to protect the rights and interests of people like him who are directly affected by a by-law. It would be inappropriate to refuse a person access to a statutory jurisdiction designed to protect them from invalid delegated legislation, on the basis that another applicant who has another course open to him should take another course.

The issues

As mentioned, section 276 of the Act entitles a person with a material interest in the validity of a by-law to take action before the District Court to try the validity of such by-law. The court may make an order declaring the by-law to be invalid. The application in this matter is for an order under section 276(5)(e) of the Local Government Act 1999 that By-law No. 4 of the City of Adelaide made pursuant to the Act (“the By-law”), and in particular paragraphs 2.3 and 2.8 of the By-law, are invalid.
Both applicants argue that the By-law is invalid as it is ultra vires the Act and also because it places undue and unnecessary burden on their freedom of political and religious communication. There are two issues.
Firstly, whether as a matter of interpretation the By-law is ultra vires the enabling provisions of the Act.
Secondly, whether by virtue of a now-recognised limitation upon legislative power to, by ordinary law, unreasonably interfere with freedom of discussion about political communication imposed by implication from the Commonwealth Constitution, [5] and also arguably by the South Australian Constitution, the by-law is invalid or should be read down so as not to prohibit the applicants’ preaching.
[5] National News Pty Ltd v Wills (1992) 177 CLR 1, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

The by-law

“By-law No.4 – Roads” was purportedly made under section 249 of the Act[6]. The By-law reads:
[6] The by-law cites section 249.
DEFINITIONS
In this by-law -
1.1 “authorised person” means a person appointed as an authorised person pursuant to Section 260 of the Local Government Act 1999;
1.2 “Council” means the Corporation of the City of Adelaide;
1.3“electoral matter” has the same meaning as in the Electoral Act 1995 provided that such electoral matter is not capable of causing physical damage or injury to any person within its immediate vicinity;
1.4 “Emergency Vehicle” has the same meaning as in the Australian Road Rules 1999 and the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999;
1.5“livestock” has the same meaning as in the Livestock Act, 1997;
1.6 “road” has the same meaning as in the Local Government Act 1999;
1.7 “vehicle” has the same meaning as in Section 5 of the Road Traffic Act 1961.
ACTIVITIES REQUIRING PERMISSION
No person shall without permission on any road:-
2.1     Repairs to Vehicles
perform the work of repairing, washing, painting, panel-beating or other work of any nature on or to any vehicle, provided that this paragraph shall not extend to running repairs in the case of breakdown;
2.2     Collections and Donations
collect anything from any passer-by or ask for or receive or indicate that he or she desires a donation of money or any other thing;
2.3     Preaching and Canvassing
preach, canvass, harangue, tout for business or conduct any survey or opinion poll provided that this restriction shall not apply to designated area as resolved by the Council known as a “Speakers Corner” and any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal, State or Local Government Election or during the course and for the purpose of a Referendum; (underlining added)
2.4     Amplification
use an amplifier or other device whether mechanical or electrical for the purpose of amplifying sound for broadcasting announcements or advertisements;
2.5     Livestock
ride, lead or drive any livestock on any street or road in those areas that the Council has designated by resolution;
2.6     Camping
camp or remain overnight either in the open, in a vehicle or otherwise;
2.7     Tents
erect any tents or other structure;
2.8     Distribute
give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter, provided that this restriction shall not apply to any handbill or leaflet given out or distributed by or with the authority of a candidate during the course of a Federal, State or Local Government Election or to a handbill or leaflet given out or distributed during the course and for the purpose of a Referendum; (underlining added)
2.9     Handbills on Cars
place or put on any vehicle (or cause to be placed) any handbill, advertisement, notice or printed matter dealing with religious, charitable purposes or advertising except for any electoral matter posted on a vehicle with the authority of a candidate during the course of a Federal, State or Local Government election or Referendum;
2.10 Erection of Structures
2.10.1 erect a fence or hoarding, if:
2.10.1.1the fence or hoarding is made of or contains barbed or razor wire; or
2.10.1.2the fence is not easily visible at night and thereby creates a danger to users of the road;
2.10.2        erect, place, use or allow to remain:
2.10.2.1      a ladder or trestle;
2.10.2.2 any other equipment, appliance, object or material likely to cause an obstruction or danger to any person;
2.10.2.3 park, place, use or allow to remain a mobile crane, scissor lift, elevated platform vehicle or cherry picker;

PUBLIC EXHIBITIONS AND DISPLAYS
No person shall, without permission:
3.1 allow or cause any public exhibition or display to occur on a road;
3.2 allow or cause to be displayed any bills, advertisements or other papers or items or mark with any substance or apply any stickers or stencils to a building or structure on a road;
REMOVAL OF ANIMALS AND PERSONS
4.1 If any animal is found on part of a road in breach of a by-law any person in charge of the animal shall forthwith remove it from that part on the request of any authorised person; and
4.2 An authorised person may direct any person who is considered to be committing or has committed a breach of this By-law to leave that part of the road. Failure to comply with that direction forthwith is a breach of this By-law.
OBSTRUCTION
No person shall without permission on any road:
5.1 obstruct any road, path, footpath, track, gateway or other area;
5.2 Erect, place, use or allow to remain over any path, footpath, track, gateway or other area any object including any planter box, hoarding, crane, cherry picker, elevated platform vehicle, scaffolding, stage, ladder, trestle, appliance, or other equipment;
REMOVAL OF OBSTRUCTIONS
If an object is obstructing any part of local government land then the Council may remove the object provided that this clause shall not apply to any object that has been placed on local government land with the permission of the Council or the object has been placed on the local government land by some other lawful authority.
EXEMPTIONS
The restrictions in this by-law do not apply to any Police Officer, Council Officer or employee acting in the course and within the scope of that person’s normal duties, or to a contractor while performing work for the Council and while acting under the supervision of a Council Officer, or an emergency worker when driving an Emergency Vehicle in an emergency situation.
CONSTRUCTION
This by-law is subject to any Act of Parliament and Regulations made thereunder.
APPLICATIONS OF PARAGRAPHS
Paragraph 2.5 of this by-law shall apply only in such portion or portions of the area as the Council may by resolution direct in accordance with Section 246(3)(e) of the Local Government Act 1999.
As is apparent, By-law No. 4 - Roads creates the concept of an “activity requiring permission” and prohibits a range of activities on any road in the city of Adelaide unless such permission is granted. Of particular concern to the applicants is paragraph 2.3, which prohibits anyone from being able to “preach, canvass, harangue” on any road with the exception of any area that the Council could resolve to be a “Speakers Corner” or as authorized by a candidate during the course of an election.

The breadth of the prohibition in question

Road is defined in section 4 of the Act as 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. It includes a bridge, viaduct, subway, alley, causeway or walkway. In other words it would include the footpaths outside every building in the city, and Rundle Mall.
The prohibition sits in tandem with a similar prohibition relating to all Local Government Land, created at the same time as this by-law by By-law No. 3 – Local Government Land.[7] Together, the prohibitions would cover virtually all public space in the city of Adelaide.
[7] Contained in exhibit PSK-2 to the affidavit of Paul St Leger Kelly dated 30 September 2010, paras 2.6 and 2.8
The potential breadth of this prohibition is apparent when one considers the meaning of the word harangue alone. Whilst the Oxford Online Dictionary defines it to mean “to lecture (someone) at length in an aggressive manner or critical manner”, Gavan Duffy J in Proud v City of Box Hill [1949] VLR 208 at 210 held that the phrase in a similar by-law enacted by the city of Box Hill included merely “a speech to a mob or gathering or a concourse of people, and therefore speech which must be delivered in a loud voice to be heard”. In other words, according to Gavan Duffy J, it includes any speech to a gathering of people.
Canvassing and preaching covers a wide range of other public conduct that would otherwise be legal, and which, together with public speaking, have been a part of the streetscape of free societies for millennia.
Paragraph 2.8 prohibits anyone from being able to “give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter” with the sole exception of handbills or leaflets given out by or with the authority of a candidate for election or in relation to a referendum.
The combination of paragraphs 2.3 and 2.8 accordingly likely prohibits any public speaking on a street that involves speaking in a loud enough voice to be heard by a gathering of people, and handing out any political or other leaflet to anyone on a street, whether that be to a gathered group or otherwise. This prohibition would plainly cover preaching, however preaching is also specifically prohibited.
If Gavan Duffy J’s interpretation of the meaning of harangue is correct, then all public speaking in Adelaide streets and thoroughfares is banned, subject to the Council’s permission. Breaching the By-law is an offence, so public speaking in Adelaide is criminalized.[8] Many activities hitherto regarded as innocuous, but that require speaking in a loud enough voice to be heard by a group are thereby prohibited. Speeches, announcements, doorstop interviews given by state and federal politicians or the Mayor outside public buildings, or protests or rallys or group discussion about current issues that involve any speech or statement in a raised voice to even a small gathered group about anything at all, on a footpath, may constitute an offence. Loud directions to assembled well-wishers outside the registry office by the wedding photographer might be prohibited, as indeed may be an impromptu speech by the best man.
[8] Clause 2.1 of By-Law No. 1 – Permits and Penalties, see also paragraph 23 of the affidavit of Trevor Battersby dated 8 September 2010
These are but a few examples of what this By-law may well purport to prohibit. The parts of the By-law in question are plainly not restricted to or even ostensibly directed at offensive, amplified or racist public speaking, indeed those activities are elsewhere regulated variously by public order offences and to some extent these by-laws themselves.[9] It is, in its own terms, a blanket prohibition of anything that qualifies as haranguing.
[9] For example, paragraphs 2.4 of By-Law No.4 - Roads and 2.9 of By-Law No.3 - Local Government Land prohibit any amplification of sound, and paragraph 4.3 of By-law 3 prohibits any annoyance or unreasonable interference with any other person’s use of land by making a noise or creating a disturbance. Section 7 of the Summary Offences Act prohibits any disorderly or offensive behaviour or offensive language. Section 33 of the Summary Offences Act prohibits exhibiting offensive material in a public place. Section 18C of the Racial Discrimination Act 1975 (Clth) prohibits offensive behaviour because of race, colour or national or ethnic origin
The By-law envisages that the council may however grant permission for a person to speak. Accordingly, for example, it may be that advance written permission is required from the delegated local council employee, should the Mayor, the Premier or the Prime Minister wish to hold a press conference or make a statement to any gathering of reporters, supporters or members of the public on any footpath outside any building in the City of Adelaide.
The permission-seeking process would usually, one could imagine, take some days or weeks, which in the reality of a political discourse where issues and responses are required in matters of minutes and hours or not at all, would render the prohibition imposed effectively absolute in that area. If permission is not sought, or sought and not granted, then those persons will be exposed to prosecution for breach of the By-law. I did not hear submissions as to whether there is any restriction on who might prosecute such offences, but the additional potential for chaos is apparent if private prosecutions could be launched by those opposed to the pronouncements concerned, for example the political opponents of the pronouncer. Even if prosecutions are restricted to the Council, the temptation for unease is at least hypothetically ever present where, say, there has been an unauthorized public political speech, rally, press conference or doorstop interview conducted by the current Council’s political opponents. The junior employee with a delegation, or the current Council itself, would be able to decide to prosecute the current Council’s political opponents for politically speaking against the current Council in public.
There are further aspects of the breadth of the prohibition and permission seeking dynamic that this by-law creates that cause potential unease, particularly for state and federal government. The concept of local government, perhaps per a delegated junior employee, receiving an application and deciding whether the Prime Minister, State Premier, a member of federal or state parliament, or perhaps a councilor of its own council from an opposing faction, be permitted to speak publically in Adelaide, is an uneasy one.
Materials tendered by the respondent infer that the content of proposed speaking activities is a relevant factor to the respondent[10], and accordingly likely to be considered in deciding whether or not to grant permission. The concept of local government reserving to itself by way of a by-law the right to vet in advance and thereby control, by granting or withholding permission depending on content, the content of proposed federal or state government political discussion throughout all public places in an Australian capital city is a very uneasy one.
[10] See paragraph 28.10 of the affidavit of Trevor Battersby dated 8 September 2010
Whilst the focus of the Council in this particular matter appears to be trying to prevent the expression of religious views that some traders and members of the public disagree with, or would prefer not be expressed near their shops,[11] the potential breadth of this by-law is extensive, and the range of conduct it may prohibit and criminalise is broad and dramatic.
[11] See the affidavit of Trevor Battersby dated 8 September 2010 generally

The Local Government Act 1999 by-law-making power

Section 246 of the Act authorizes a council to make by-laws that are within the contemplation of the Act, or another Act, or that relate to a matter in relation to which the making of by-laws is authorized by regulations under the Act or another Act.
Section 246(2) provides that the Council cannot make a by-law that requires that a person obtain a license from the Council to carry out an activity at a particular place, unless the Council has express power to do so under an Act.
Section 247 of the Act articulates certain principles that must apply to any by-law made by the Council;

247—Principles applying to by-laws

A by-law made by a council must—
(a)be consistent with the objectives of the provision that authorises the by-law and accord with the provisions and general intent of the enabling Act; and

(b)     adopt a means of achieving those objectives that does not—
(i)    unreasonably burden the community; or
(ii)    make unusual or unexpected use of the power conferred by the enabling Act (having regard to the general intent of the Act); and
(c)avoid restricting competition to any significant degree unless the council is satisfied that there is evidence that the benefits of the restriction to the community outweigh the costs of the restriction, and that the objectives of the by-law can only be reasonably achieved by the restriction; and
(d)avoid unreasonable duplication or overlap with other statutory rules or legislation; and
(e)avoid regulating a matter so as to contradict an express policy of the State that provides for the deregulation of the matter; and
(f)avoid breaching principles of justice and fairness; and
(g)be expressed plainly and in gender neutral language,

but a by-law cannot be challenged on the ground that it is inconsistent with one or more of these principles.

Section 248 applies a number of rules to by-laws enacted by Council. It reads;

248—Rules relating to by-laws

(1)     A by-law made by a council must not—
(a)     exceed the power conferred by the Act under which the by-law purports to be made; or
(b)     be inconsistent with this or another Act, or with the general law of the State; or
(c)     without clear and express authority in this or another Act—
(i)    have retrospective effect; or
(ii)     impose a tax; or
(iii)purport to shift the onus of proof to a person accused of an offence; or
(iv)provide for the further delegation of powers delegated under an Act; or

(d) unreasonably interfere with rights established by law; or
(e) unreasonably make rights dependent on administrative and not judicial decisions.
(2)If a by-law is inconsistent with a trust that applies to real or personal property held by the council, the by-law does not, to the extent of the inconsistency, apply in relation to that property.
(3)This section does not affect the validity of a by-law made before the commencement of this section.

Of particular note is that section 248(1)(b) of the Act provides that a by-law made by a council must not be inconsistent with the Act or another Act, or with the general law of the State. Further, section 248(1)(d) of the Act provides that a by-law made by a council must not unreasonably interfere with rights established by law.
Section 249 of the Act regulates the passing of a by-law. In particular, per section 249(4) a council must not make a by-law unless or until the Council has obtained a certificate in the prescribed form signed by a legal practitioner certifying that in the opinion of the legal practitioner the Council has power to make the by-law by virtue of a statutory power specified in the certificate, and that the by-law is not in conflict with the Act.
Section 251 of the Act provides that a by-law will expire on 1 January of the year following the seventh anniversary of the by-law. The by-law is taken to be made on the day it was published in the Gazette.
Chapter 11 Part 4 of the Act authorises by-laws on specific topics. Section 238 authorises council to make by-laws controlling access to and use of local government land. It reads;

238—Power to control access and use of land

(1)A council may make by-laws controlling access to and use of local government land

Examples—
The by-laws may for example—
•fix opening hours for specified land and prohibit or restrict access at other times;

• regulate, restrict or prohibit public access to specified land;
•regulate, restrict or prohibit the bringing of animals or a specified class of animals onto specified land or the movement of animals or a specified class of animals on specified land;

•      close specified land, or part of the land, to public access;
•      regulate, restrict or prohibit the lighting of fires;
•      regulate, restrict or prohibit sporting or other activities on specified land;
•      regulate the use of facilities provided on specified land;
•      regulate the speed or route of vehicles driving on the land;
•      regulate, restrict or prohibit the parking or standing of vehicles.
(2)     However—
(a)a by-law cannot be made under subsection (1) about access to or use of a road; and (b)    a by-law prohibiting a person from bringing alcoholic liquor onto local government land, or consuming alcoholic liquor on local government land, may only be made if the land constitutes a park or a reserve.
(3)If a council makes a by-law about access to or use of a particular piece of local government land under this section, a notice setting out the effect of the by-law should be erected in a prominent position on, or in the immediate vicinity of, the land to which the by-law applies.

Section 4 defines “local government land” as “land owned by a Council or under Council’s care, control or management”.
Section 238 grants a wide power to make by-laws for the “access to and use of” local government land, but specifically excludes the power to make a by-law about access to or use of a road. In other words, the wide power granted per this section cannot support a by-law regulating road use.
Section 239 authorises councils to make by-laws about the use of roads. It reads;

239—By-laws about use of roads

(1)     A council may make by-laws about the use of roads for—
(a)     moveable signs; or
(b)     the broadcasting of announcements or advertisements; or
(c)     public exhibitions or displays; or
(d)    soliciting for religious or charitable purposes; or
(e)     motor vehicle maintenance or repair; or
(f)     the movement of animals; or
(g)    any other use in relation to which the making of by-laws is authorised by regulation.
(2)Subject to this Act, a by-law made under subsection (1) can regulate, restrict or prohibit the use of which it relates.

Section 239 is accordingly quite specific as to the scope of matters about which a council may make by-laws concerning the use of roads. There is no general power. Rather six specific topics are articulated, and any other use which is sought to be regulated requires the authority of a regulation. As is apparent, section 239 authorises the Council to make by-laws about the use of roads for the broadcasting of announcements[12], public exhibitions or displays[13] or soliciting for religious or charitable purposes[14].
[12] Section 239(1)(b).
[13] Section 239(1)(c).
[14] Section 239(1)(d).
The initial issue accordingly might be whether a by-law making power that authorises the regulation, restriction and the prohibition of “broadcasting of announcements or advertisements”, “public exhibitions or displays” or “soliciting for religious or charitable purposes”, empowers the prohibition of religious preaching or the expression of and the arguing of political views.
The only way the by-law making scope as to roads established by section 239 may be ostensibly extended beyond the articulated categories of activity is pursuant to section 239(1)(g). Section 239(1)(g) provides that a council may make laws about the use of roads for any other use in relation to which the making of by-laws is authorised by regulation.
I have located only one such regulation. Local Government (General) Regulation 18A of 1999 authorises a council, pursuant to section 239(1)(g), to make by-laws about the use of roads for camping.
The respondent has not identified any other regulations which might expand the ambit of the power to make by-laws “about the use of roads”.
“Road”, per By-law No. 4 - Roads has the same meaning as in the Act, where it is defined as;
“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) a bridge, viaduct or subway; or
(b) an alley, laneway or walkway.
Of further potential relevance is the City of Adelaide Act 1998. Section 37A of that Act grants the Council particular powers concerning Rundle Mall (“The Mall”). Section 37A(1) provides for the continuance of the Mall as a pedestrian mall. Section 37A(2) provides that no one may either drive a vehicle on any part of the Mall or allow it to remain there otherwise than in accordance with a notice or a permit published or given by the Adelaide City Council under the section.
The Council may, by gazetted notice, also specify the vehicles that may enter or remain in the Mall, the hours of operation during which vehicles may be in the Mall and may by a notice in writing permit a vehicle to enter and remain in the Mall subject to conditions. Importantly, section 37A(7) empowers the council to make by-laws concerning activity in Rundle Mall. It reads;
(7)In addition to any other power to make by-laws, the Council may make by-laws—
(a)     regulating, controlling or prohibiting any activity in the Mall, or any activity in the vicinity of the Mall, that is, in the opinion of the Council, likely to affect the use or enjoyment of the Mall; and
(b)    providing for the fixing, and varying or revoking, by resolution of the Council, of fees and charges for the use of the Mall or any part of the Mall for any display, activity or entertainment, or for any service provided or permit issued in or in connection with the Mall, and providing for any matter or thing in connection with the collection or remission of those fees or charges; and
(c)     regulating any matter or thing connected with the external appearance of a building or structure on, abutting or visible from the Mall; and
(d)    regulating, controlling or prohibiting the movement or standing of vehicles on access or egress areas to the Mall; and
(e)     fixing a penalty not exceeding $250 for a breach of a by-law.
(8)     ……
(9)     ……
(10)The Local Government Act 1999 applies to and in relation to by-laws made under this section as if they were by-laws made under that Act.

Of particular note, section 37A(7)(a) empowers the Council to make by-laws regulating, controlling or prohibiting “any activity” in the Mall or its vicinity that in the opinion of Council is likely to effect the use or enjoyment of the Mall. Section 37A(7)(b) empowers the Council to fix, vary or revoke fees and charges for the use of the Mall and for any activity in the Mall.
Section 37A(10) provides that the Local Government Act applies to and in relation by-laws made under this section as if they were by-laws made under that Act.
As shortly discussed, “By-law No. 4 - Roads” was ostensibly made pursuant to the specific by-law provision of section 239 of the Local Government Act 1999, and per the procedure for passing by-laws thereto per sections 246-251 of Chapter 12 Part 1 of the Act.
Hence whilst the City of Adelaide Act plainly contains a by-law making power to prohibit any activities in Rundle Mall that in its opinion are likely to affect the use and enjoyment of the mall, that power was not exercised on this occasion.
This may have potential relevance to the regulatory framework available to the respondent in several ways.
Firstly, the by-law making power concerning the mall contained in the City Of Adelaide Act is far more extensive than the by-law making power to regulate roads contained in section 239 of the Act. A prohibition enacted by by-law that may be valid for the Mall, as it might plainly relate to “any activity” that falls within the concept of something that in the opinion of the Council is likely to affect the “use and enjoyment of the mall”, may well not be valid if enacted for roads pursuant to the much more limited and specific authority of section 239.
Secondly, a by-law covering every road (widely defined as it is in the Act to include every vehicle and pedestrian thoroughfare in the city) has potentially far wider effect than a by-law covering only one part of the city, such as Rundle Mall. As the test[15] that potentially determines whether an ordinary law infringes a constitutional protection of political communication contains significant elements of degree, reasonableness and balance, a by-law that applies to a whole city might be characterised differently to one that only applies to a small part of it. Put another way, a by-law that prohibited political public speaking throughout the whole city might be considerably less reasonable than one that restricted it in only one place in the city.
[15] To which I shortly refer.
In particular, to use the test propounded by the High Court in Lange v ABC (1997) 189 CLR 520[16], a blanket prohibition on public speaking throughout a city’s streets is more likely to constitute “an effective burden” on political communication than one which prohibits it on only one of the city’s streets, and is less likely to be justifiable on the basis that it is a law which is “reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” than one which prohibits it on only one of the city’s streets.
[16] To which I will later refer in more detail.
In simplistic terms, what might be an invalid by-law for the whole of a city’s streets may not be invalid if enacted in relation to only one street. The suppression of political communication in a society occasioned by prohibition in one street is considerably less than occasioned by a city-wide prohibition.
Drawing the two themes together in terms of the regulatory framework available to the respondent, a prohibitory by-law concerning specified conduct could conceivably be both within articulated power and reasonable for Rundle Mall, but not within articulated power and unreasonable for a whole city.
Finally, I observe that there is a stark contrast between the very wide by-law making power granted by section 238 in relation to local government land[17] and section 37A(7) in relation to Rundle Mall[18] on the one hand, and the strictly limited by-law making power granted by section 239 in relation to roads.
[17] By laws which control “access to and use of” the land
[18] "regulating, controlling or prohibiting any activity”

Is the by-law ultra vires the Local Government Act 1999

I turn to the initial question of whether the by-law is invalid as ultra vires the by-law making powers contained in the Act. The first step is to identify which by-law making power purportedly authorises the making of the by-law.
The Act contains general provisions relating to the making of by-laws. Section 246 provides that subject to the Act or another Act, a council may make by-laws that are within the contemplation of the Act or another Act; or that relate to a matter in relation to which the making of by-laws is authorised by the regulations under the Act or another Act. What this means, in English, is that councils can only make by-laws with the specific authority of a statute or a regulation. Section 246 does not itself constitute a general by-law-authorising power such as one that might authorise the making of regulations “necessary or convenient” for the purposes of an Act.[19]
[19] Springvale Washed Sand Pty Ltd v City of Springvale [1969] VR 784 at 794 per McInerny J
Section 238 of the Act provides that the by-law making power therein concerning access to and use of local government land cannot be used to make by-laws concerning access to or use of roads. As earlier mentioned, section 238 cannot therefore authorize the by-law in question.
Section 239 of the Act provides that by-laws can be made about the use of roads for certain specific purposes. They are; the use of roads for moveable signs, broadcasting of announcements or advertisements; public exhibitions or displays; soliciting for religious or charitable purposes; motor vehicle maintenance or repair; the movement of animals; or any other use in relation to which the making of by-laws is authorised by regulation. Subject to the Act, a by-law made under section 239 can regulate, restrict or prohibit the use of a road for these purposes.
A Certificate of Validity pursuant to section 249(4) of the Act from a legal practitioner is a precondition to a council passing any by-law. Indeed in this case the council submits that a certificate by a legal practitioner dated 19 May 2004 certified to the Council that it had power to make this by-law[20]. A document said to be such a certificate was tendered certifying validity by virtue of sections 239, 240 and parts of section 246[21] of the Act, and by virtue of regulation 18A of the Local Government (General) Regulations 1999 and section 39 of the Acts Interpretation Act 1915. This certificate has no legal effect apart from constituting a pre-condition to the Council passing a by-law. It creates no presumption of validity. All parties agreed in argument that the certificate is a pre-condition for a valid by-law. It does constitute the basis upon which the council ostensibly passed the By-law.
[20] Certificate of Validity signed by Paul St Leger Kelly, legal practitioner, dated 19 may 2004.
[21] Sub-sections 246(1)(b), 246(3)(c) and 246(3)(e)
There is a preliminary complication in the matter concerning this certificate. Section 249(4) requires the certificate to be signed, in the prescribed form, and to certify that the Council has the power to make the By-law and that the By-law is not in conflict with the Act. The prescribed form[22] requires that the certificate be dated and itself contain a description of the By-law in question.
[22] Form 8, copy attached to the revised outline of the Applicant, and tendered as exhibit P7.
At the outset the Council tendered a bundle of material containing inter alia the material that went to the Council meeting concerning this by-law, and the material that later went into the parliamentary review process. That material immediately raised several issues. It seemed that the certificate that went to Council in this matter made no reference to the by-law concerned, and no-one has inserted the required description. Hence the certificate seemed neither in “the prescribed form” as required, not did it certify that any particular by law is valid. It refers to “the following by-law”, but then does not specify one. The agenda papers provided to Council attached what appeared to be an electronic copy of that certificate, but in fact it is different to an actual signed certificate also provided to the court. It is unsigned, undated, and it includes a reference in large letters to “By Law 4 – Roads”. That reference does not appear in the actual signed certificate originally provided to the court. Hence, it appeared that there may never have been a certificate in the actual prescribed form, and neither the signed certificate, nor an accurate copy of it was put before the Council for their consideration. Finally, as mentioned there was a signed certificate, but it was dated 19 May, some 9 days after the 10 May Council meeting that considered and approved the by law. Accordingly, the signed certificate was seemingly not yet in existence at the time the council considered and approved the by law. It seemed the Council had before them what seemed from the Council’s bundle of tendered materials to be an unsigned, undated and inaccurate draft of a certificate.
As the above became apparent during the course of the hearing, the Council filed further affidavit material as to this issue:
An affidavit of Trevor Battersby dated 8 September 2010 was filed. It recounts that after a period of public consultation;
13. At its meeting of 10 May 2004 the respondent had before it and considered
13.1 a certificate from a legal practitioner which certified that, in the opinion of the legal practitioner:
13.1.1the respondent had the power to make the By-law by virtue of its powers under sections 239(1)(b), 239(1)(c), 239(1)(d), 239(1)(e), 239(f), 240, 246(1)(b), 246(3)(c) and 246(3)(e) of the Act, regulation 18A of the Local Government (General) Regulations 1999, and section 39 of the Acts Interpretation Act 1915; and
13.1.2the By-law did not conflict with the relevant legislation, and attached hereto and marked ‘TB-3’ is a true and accurate copy of the agenda item number 12.4 titled ‘Review of By-laws’ and dated 10 May 2004 which was before the Council on 10 May 2004;
13.2 a report clarifying the objective of the By-law, identifying the nature of any proposed restriction on competition in the By-law, an analysis of the most likely effect of those restrictions and considering any alternative means of achieving the same controls in light of the National Competition Policy.
13.3 A summary of each of the four submissions received from members of the public in respect of all proposed by-laws, none of which related to the By-law. These reports can be found in ‘TB-3’; and
14.The By-law and associated documents were considered by the Respondent at a meeting where at least two-thirds of the members of the Respondent were present as required by section 249(3)(a) of the Act. A resolution was carried by an absolute majority of all the members of the Respondent making the By-law. Attached hereto and marked ‘TB-4’ is a true and accurate copy of the minutes of the respondent evidencing the resolution passed on 10 May 2004.
15.…. (Gazetted on 27 May 2004)
16.Mr Mal Hemmerling, then Chief Executive Officer of the Respondent, signed a copy of the By-law and inserted the date of the meeting of the Respondent at which the By-law was made. Attached hereto and marked ‘TB-6’ is a true and accurate copy of the By-law signed by the then Chief executive Officer of the Respondent.
17.On 19 May 2004 the following documents were forwarded to the Secretary of the Legislative review Committee in accordance with Section 10A of the Subordinate Legislation Act:
17.1 One originally signed copy of the By-law containing an originally signed Certificate of Validity;
…. (etc)
In fact, the ‘originally signed’ Certificate of Validity referred to in Mr Battersby’s paragraph 17.1 turned out to be the only signed certificate. It was signed and dated 19 May, ten days after the Council meeting at which a certificate of validity should have been tendered.
When this became apparent, a further affidavit was provided by the respondent. An affidavit of Paul Kelly, a solicitor, was tendered.
Mr Kelly deposed that he was the solicitor, under the supervision of a partner, who in 2004 was instructed by the respondent in relation to this matter. He deposed that on 29 April 2004 he was instructed by a Council Customer Service Manager to prepare Certificates of Validity, reports to the Legislative Review Committee on the application of the by-laws and reports for the consideration of the Council regarding the implications of the by-laws in light of National Competition Policy. Mr Kelly deposed that he did form the view that the proposed by-laws, including the by-law in question, would be valid and prepared the requested documentation. He said he did that between 29 April and 3 May 2004. Mr Kelly said that he was instructed by another Council employee a Mr Palumbo to provide the documentation electronically to Mr Palumbo. He then recounted what happened next:
11.After conducting the above assessment, I prepared a Certificate of Validity for each of the proposed by-laws, (including the By-law) and included these certificates of validity at the beginning of each electronic Microsoft Word Document containing a proposed by-law (including the By-law), ie all proposed by-laws commenced on the first page immediately following the Certificates of Validity.
12.In accordance with Section 9 of the Electronic Transactions Act 2000 (SA), each certificate of validity referred to in paragraph 11 included my name as a method of identification and approval, and identified me as a legal practitioner.
13.On 3 May 2004, in accordance with my agreement with Mr Palumbo, I sent the following documents to the Respondent electronically, by email:
13.1 By-laws 1-5 (including the aforementioned certificates of Validity);
13.2 LRC Reports; and
13.3 NCP Reports.
Attached hereto and marked ‘PSK-2’ is a true and accurate copy of the email sent to Mr Palumbo and the attached documents.
The documents sent have a dotted line at the bottom of the purported certificate, designating a place to sign, under which there reads “Paul St Leger Kelly, Legal Practitioner”. It would not necessarily be clear to a reader whether the document is meant to stand alone, or whether on the other hand the document is a draft awaiting finalisation and signature by the designated Mr Kelly.
Mr Kelly went on to depose that his covering email to Mr Palumbo signified his approval of the contents of the email. In fact the email reads:
Louis
Please find attached the following documents.
1. By-laws 1-5
2. Reports to the Legislative Review Committee (5)
3. Reports on National Competition Policy (5)
I confirm you will print out these documents and deal with them accordingly. Please call me if you have any queries concerning the process and procedure to make these by-laws. I confirm that once the council makes the by-laws I will need to put them before the Legislative Review Committee within six sitting days. The by-laws will also need to be gazetted as soon as possible after they have been made. I will be in Port Pirie tomorrow but please call me if you have any queries on (number given).
Regards
Paul Kelly
There is in fact no comment therein concerning the documents, beyond that they are attached. There might possibly be an inference arising from the fact he sent them that he agreed with them, but certainly there is nothing at all on that topic in the email. No doubt the reference contained in the affidavit was directed to the requirement per section 9(1)(a) of the Electronic Transactions Act 2000. I will return to that issue shortly.
Mr Kelly then went on to explain how he understood the documents were changed by the time they reached the Council.
15. At its meeting of 10 May 2004 the elected members of the Respondent had before them (at Attachment E to Agenda item 12.4) a copy of the Certificates of Validity for each proposed by-law (including the By-law). These Certificates of Validity are included in the attachment TB-3 to the affidavit of Trevor Battersby dated 8 September 2010. I am advised and verily believe to be true that these documents were separated from the Microsoft Word Documents that I emailed containing the proposed by-laws by officers of the Respondent, and included as a separate attachment, with an identifying heading for each proposed by-law, for ease of reference. The elected members of the Respondent considered the Certificates of Validity and made the proposed by-laws, including the By-law, in reliance upon those Certificates of Validity. That is to say that instead of the Certificate of Validity appearing at the top of the By-law, the Certificate appeared on a separate page with a header on it identifying the By-law by number.
Mr Kelly’s affidavit therefore establishes per paragraph 15 that the electronic document provided by him to Council officers was separated into two documents and the certificate altered, prior to being provided to the Council. This had several affects. It meant the certificate that he provided to the Council employee was not what was provided to Council, and it meant that the by-law concerned was no longer attached to, in the sense of being part of, the certificate concerned.
Mr Kelly then explained the existence of the signed Certificate of Validity, dated nine days after the relevant Council meeting.
17. It is apparent from my review of the relevant documentation, that the by-laws had been returned to the offices of Norman Waterhouse in the same format that they were presented to the elected members of the Respondent on 10 May 2004 (as included in the attachment TB-3 to the affidavit of Trevor Battersby dated 8 September 2010), without each Certificate of Validity being included at the beginning of the document. Therefore, on 19 May 2004, prior to the submission of all relevant documentation to the Legislative Review Committee, I caused to be printed the original copies of each Certificate of Validity (including the Certificate of Validity for the By-law) as a separate individual page and caused to be attached each Certificate of Validity to the front of the relevant By-law. I then dated each Certificate of Validity and marked my signature.
Paragraph 17, in context, establishes that the only signed Certificate of Validity was a new and different certificate printed out and signed by Mr Kelly that never went to Council at all, but rather was prepared nine days after the Council meeting for the purposes of the Legislative Review Committee. The Respondent conceded that no “ink” signature existed until 19 May 2004.[23]
[23] Respondents supplementary written submissions paragraph 3
It is trite to say that this issue could have been easily avoided if the solicitor had followed the prescribed form[24] and included reference to the By-law within the certificate, printed and signed it, dated it, and then provided it either in hard copy or electronically by fax or PDF[25]. That way, the certificate he signed, in the correct form, dated, would likely have been provided to the Council. Regrettably that did not occur and consideration now must be given to the degree to which non compliance with section 249(4) renders this by-law, and hypothetically any other by-law similarly dealt with, invalid.
[24] Form 8 contained in Schedule 1 to Local Government (General) Regulations 1999, exhibit P7.
[25] A fixed format that cannot be amended by the receiver.
The respondent submitted that the certificate the Council saw had the By-law stapled to it, or was at least on a separate sheet following it, so that although it was not in the prescribed form and contained no reference to the By-law concerned, there was substantial compliance sufficient for the validity of the By-law. That may have been how they were initially received by the Council employee, but it was not what the Council received for their meeting. As the Council papers contained within exhibit TB-3 to the exhibit of Mr Trevor Battersby tend to indicate and as shortly discussed, the By-law and the certificate had been separated, the certificate amended by a Council employee, and as TB-3 shows, the amended certificates are grouped together in a bundle at the end of a bundle of by-laws.

The first issue is whether, as a matter of law, the council had a certificate within the meaning of section 249 presented to it at all.
The second issue is if what it got was a certificate that did not comply in the ways conceded, whether Parliament intended substantial compliance to be sufficient, and if so, how substantial that compliance should be to achieve validity.[26]
Section 249(4) provides;
[26] Project Blue Sky v ABA [1998] HCA 28

249 – Passing by-laws

……………
(4)A council must not make a by-law unless or until the council has obtained a certificate, in the prescribed form, signed by a legal practitioner certifying that, in the opinion of the legal practitioner—
(a)the Council has power to make the by-law by virtue of a statutory power specified in the certificate; and
(b)the by-law is not in conflict with this Act.

The provision is plainly mandatory. The language is mandatory, and the provision seems intended at least in part to be an assurance to the Council and a safeguard for the community that invalid by-laws not be passed. As is plain from the case at hand, by-laws can be made pursuant to the Local Government Act regulating and prohibiting a very wide range of otherwise lawful activities that people might otherwise enjoy in and around Adelaide. It is time consuming and expensive for members of the community to have to litigate after the enactment of a by-law to test its validity, or risk prosecution and conviction for breaching a by-law that may be invalid. This provision is designed to ensure that the Council receives formal, signed advice in a legislatively prescribed format that the Council has the power to make the by-law by virtue of a specified statutory power, and that the by-law is not in conflict with any part of the Local Government Act. The provision is for the assurance of the Council and the protection of the community.
The first issue is whether the Council received the certificate sent by the solicitor at all. It is reasonably plain that what the Council received at its meeting were two unsigned, undated, reformatted, altered documents that had been created by a Council employee from one unsigned and undated document that had been sent by the solicitor.
What was provided to the Council was not an annotated, stamped or endorsed version of the original but a new version of the document.[27] It was half the length, primarily by virtue of the excision of the By-law itself, and the addition of a heading “BY-LAW NO. 4 – ROADS”. The computer footers of each document indicate that the document submitted to the Council was a new document rather than an amended version of the original document. The document sent by Mr Kelly has a windows file number 243411/PSK0319330.doc, whereas the document provided to Council at its meeting is another document with a windows file number C:\Documents and settings\hancsam0\MyDocuments\temp\2004_05_10acc.doc.
[27] It can be seen at TB-3, an exhibit to the affidavit of Trevor Battersby dated 8 September 2010
The only reasonable inference from all the material before me is that a Council employee decided to draw up a new document, cut and pasted in the first part of the document received from the solicitor, realised that it would no longer have any indication of which by-law it referred to, so typed in the by-law he/she thought it referred to, but did so as a heading, rather than in the body of the document as required by the prescribed form.
There is accordingly a good argument that the fundamental requirement of section 249(4) that the Council be given a certificate signed (or validated per the Electronic Transactions Act) by the solicitor, did not occur. A new different document was created subsequent to electronic receipt of the document by an employee, which such new document was given to the Council. None of these alterations were themselves electronic transactions within the meaning of the Electronic Transactions Act (to which I will shortly refer) capable of being saved by that Act.
Even the new document purporting to be the Certificate of Validity that went to the Council meeting did not comply with section 249(4) in a number of ways. Section 249 requires that the Certificate be in the prescribed form. The prescribed form is Form 8, contained within Schedule 1 of Local Government (General Regulations) 1999. Prescribed Form 8 requires the certificate to contain within the body of the certificate a description of the by-law. That was not complied with, rather the Council employee (not the solicitor) typed in a heading at the top of the page referring to the by-law. The prescribed form requires that the date of the certification be included, but the Certificate that went to the Council was not dated at all.
The form requires that the certifying legal practitioner must affix their usual signature, which has also not been done at any stage to any document prior to the date the Council considered the By-law. Section 249 specifically requires that the Council obtain a signed certificate.
The respondent argues it can rely on the Electronic Transactions Act 2000 in relation to the signature. That Act provides that a requirement to give information in writing, provide a signature or produce a document imposed under a law of this jurisdiction can generally be met in electronic form. Section 9 deals with how legal requirements for the signature of a person can be taken to have been met in the case of an electronic communication. I set out the relevant provision:

9—Signatures

(1)If, under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if—
(a)     a method is used to identify the person and to indicate the person's approval of the information communicated; and
(b)    having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated; and
(c)     the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a).
(2)This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring—
(a)     an electronic communication to contain an electronic signature (however described); or
(b)    an electronic communication to contain a unique identification in an electronic form; or
(c)     a particular method to be used in relation to an electronic communication to identify the originator of the communication and to indicate the originator's approval of the information communicated.

Section 9(1) of the Electronic Transactions Act relevantly provides that where under a law of the jurisdiction, say section 249(4) of the Act, the signature of a person is required, that will be taken to have been met in relation to an electronic communication if three conditions are met.
Firstly per section 9(1)(a) a method must be used to indentify the person and to indicate the person’s approval of the information communicated. Here, an email was sent by the author of the certificate to an employee of the respondent enclosing the document without further substantive comment. The document was provided, with a place for a signature but no signature, a place for a date but no date, and without reference to the By-law concerned but instead citing the By-law in full after the conclusion of the certificate. The document was converted into a new and different document, as previously discussed, by a Council employee and included in the agenda papers for the upcoming Council meeting.[28] All the report to Council relevantly said was:[29]
11. The power and procedures to make a By-law is contained in Chapter 12 of the 1999 Local Government Act. The legislative steps to be implemented are:
·….
·Obtain a certificate of validity signed by Council’s legal practitioner that the By-laws are within Council’s power and not in conflict with the Act (attachment E)
[28] Exhibit TB-3 to the affidavit of Trevor Battersby dated 8 September 2010
[29] Exhibit TB-3 to the affidavit of Trevor Battersby dated 8 September 2010

Whilst neither the solicitor nor the Council employee drew Council’s attention to the requirements of the Electronic Transactions Act nor conveyed to the Council that the solicitor had approved the certificate, the provision of a signed complying document would on balance in my view have satisfied such a requirement. In that case, there would be a strong inference that the communicated information was approved by the named attesting solicitor. 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)”. Attachment E was then, as it appeared to Council, an apparently unsigned and undated document. The document had a place signified by dotted lines for a signature, with no signature on those dotted lines. To be satisfied that the certificate and contents therein was approved of by the solicitor required a range of assumptions. In particular, that despite the absence of any information from the solicitor or from the agenda papers, the document was not the draft it appeared to be, and that the solicitor had approved the information. That required accepting that what was there was what had been provided by the Council solicitor to the council employee drawing up the minutes. Paradoxically I believe that was a reasonable inference, although only just, notwithstanding that the evidence shows that was not actually the case.
Secondly, per section 9(1)(b), that having regard to all relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purpose for which the information was communicated. For the following reasons, I do not believe this was the case. As a matter of fact, the method adopted here, that of an unsigned certificate being provided in a readily alterable Word format to a Council employee, who regarded it as acceptable to alter the document and provide a new document to Council, resulted in a new altered document being provided to Council with no indication of date or signature. In this situation where the statute plainly requires a signed document in a specific prescribed form to be provided to Council as an important safeguard for both the Council and the wider community against invalid by-laws, the method adopted was at least casual, if not risky and haphazard. It would have been a very simple matter for the Form 8 pro forma to have been correctly drafted, then actually signed and dated, then either conveyed the very short distance from the solicitor’s office to the Council’s office, or sent electronically in any number of unalterable electronic formats[30] which allow the receiver to see a true image of the original signed Certificate of Validity.
[30] For example by PDF file or by fax.
Thirdly, per section 9(1)(c), that the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned. It is clear that the Council never considered this issue, let alone consented to the method used. The Council would not have known the method used, from the very sparse information contained in the agenda material provided to them to which I have referred. They did not know that an unsigned undated Word document was sent to a Council employee, which was then altered, and a new and different document provided by that Council employee, and that the document they received was not in the required prescribed form. It is clear that the person in this case who must receive the signature is the decision-making entity that either is to approve or not approve the recommended by-law, ie the Council in its decision making forum. That is also the forum that would need to know about, consider and consent for the purposes of section 9(1)(c).
Accordingly, were it necessary to decide it, there is a strong argument that the requirements of section 9(1)(b) and (c) of the Electronic Transactions Act were not met in this instance.
For the above reasons, there is a strong argument that the Council did not receive a certificate within the meaning of section 249(4) of the Act at all.
In light of my decision on the substantive ultra vires issue shortly discussed, it is unnecessary to formally decide the issue.
If the Council did receive a certificate, albeit one that did not comply with the requirements of section 249(4), is substantial compliance sufficient? That will depend on an assessment of Parliament’s intention. There is no dispute that the certificate was not dated, as required by the prescribed Form 8, and that it did not contain within it a description of the By-law but had a header added by a Council employee referring to the By-law, and that it was a new version of an undated certificate sent originally by the solicitor to a Council employee.
It is plain that the Court should adopt a purposive approach in interpreting section 249(4). That is clear from section 22 of the Acts Interpretation Act and recent authority.[31] The issue is whether Parliament intended that the degree of compliance that occurred here was sufficient. Whilst in light of my decision concerning the substantive ultra vires issue shortly discussed, it is unnecessary to decide the issue on balance it is likely that Parliament intended strict compliance.
[31] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
I refer to without repeating the very wide range of otherwise lawful behaviour that might be prohibited or regulated by by-laws pursuant to this Act, indeed behaviour that has been an accepted part of the streetscape of free societies for millennia, tellingly illustrated by the facts of this case. Here, public speaking[32] on the streets of Adelaide is sought to be prohibited. Similarly preaching is sought to be prohibited. Public speaking and the public preaching of religion are important components of freedom of speech in a society. The importance of freedom of speech is widely acknowledged. Authority is scarcely needed for such a proposition but for a single example refer to the extracts later cited from Evans v State of New South Wales [2008] FCAFC 130. The facts of this case, in particular the broad and dramatic impact this by-law might have, illustrate the importance for the Council and the community that invalid by-laws not be passed. The drafting of section 249, whereby it insists on a prescribed form and a signature going to the Council, conveys a parliamentary recognition of the importance of the check and balance. All this favours a construction that Parliament intended strict compliance with section 249(4).
[32] In the sense articulated by Gavan Duffy J in Proud v City of Box Hill [1949] VLR 208 at 210
I return to the issue of the legislative authority relied upon by the respondent to enact the By-law, as specified in the purported certificate at the time. Section 240 of the Act deals with bill posting, regulation 18A deals with camping, and section 39 of the Acts Interpretation Act provides that a power in an Act to make regulations, rules or by-laws includes the power to vary or revoke them in the same way. The referenced parts of section 246 concern requirements that any by-law be pursuant to a specific statutory power or regulation, may be of general or limited application and provide for exemptions, and may apply only within a part or parts of an area as the Council may determine from time to time.
Accordingly it is clear that the substantive by-law making power relied upon to authorize a by-law which prohibits preaching or haranguing on a road can only be section 239 of the Act.
The precise terms of that section are accordingly crucially important. Validity will prima facie be determined by distilling the scope of the authorising words, and assessing whether the by-law falls within that precise scope. A court’s duty is:
… first to determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorised to make, secondly to determine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation complies with that description.[33]
[33] Per Lord Diplock in McEldowney v Forde [1969] 2 All ER 1039 at 1068
As Rich J put it in Footscray Corporation v Maize products Pty Ltd (1943) 67 CLR 301 at 308:
Authorities are of little use in determining the validity of a particular by-law. The appropriate steps are to construe the statute under which the by-law is made and then interpret it to ascertain whether it is within the ambit of the statute.
In the same case Latham CJ put it even more bluntly:
A power to make by-laws about horses cannot justify a by-law about dogs.
As Barwick CJ said in Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463 at 466-7:
The answer to the question whether the Minister is so authorized is to be found upon a full consideration of the Ordinance read as a whole with the object of finding in its expressions the intention with which it was made and, in particular, the intended extent of the regulation making-power given to the Minister: and an examination of the ambit of the regulations considered in relation to the scope and purpose of the Ordinance so ascertained.
The section authorizes by-laws which may prohibit, relevantly for the purposes of this matter, ‘the broadcasting of announcements or advertisements’, ‘public exhibitions or displays’ and ‘soliciting for religious or charitable purposes’.
The by-law prohibits, relevantly for the purposes of this matter, ‘preaching’, ‘canvassing’ and ‘haranguing’.
Hence the issue is whether preaching, canvassing or haranguing falls within any of the statutory topics. I turn to the meaning of the respective terms.
Preaching, according to Oxford Dictionaries Online,[34] is to “publicly proclaim or teach (a religious message or belief)”, “earnestly advocate (a belief or course of action)”, or “give moral advice to someone in a pompously self-righteous way.” It is not defined in the Act, the By-law or the Encyclopedic Australian Legal Dictionary.
[34] At >
To canvass, according to Oxford Dictionaries Online[35], is to “solicit votes from (electors or members)...” It is not defined in the Act or the By-law. It is defined in the Encyclopedic Australian Legal Dictionary as “to solicit votes, opinions, subscriptions for a particular product or service, credit etc”.
[35] At
Haranguing, according to Oxford Dictionaries Online,[36] is to “lecture (someone) at length in an aggressive and critical manner”. Neither is it defined in the Act, the by-law or the Encyclopedic Australian Legal Dictionary. As earlier mentioned, the term was however considered in Proud v The City Of Box Hill [1949] VLR 208 at 210. In that matter Gavan Duffy J considered the meaning of the term in a somewhat similar prohibitory by-law enacted by the City of Box Hill. He held it would include merely “a speech to a mob or gathering or a concourse of people, and therefore speech which must be delivered in a loud voice to be heard.” In other words, it can include any speech with a raised voice to a gathering of people.
[36] At >
The operative enabling word in the empowering provision is “for”. The council may make by laws about the use of roads “for” the specific topics enumerated within section 239. This is considerably narrower than the oft used phrase “necessary or convenient” for giving effect to an Act.[37] “For” is also a considerably narrower concept and consequent authority than a by-law making power “with respect” to a subject matter.[38] Further, the fact that section 239(1)(g) provides that regulations[39] may provide for by-laws concerning other uses reveals a parliamentary intention that, absent regulations, the uses are strictly limited to those prescribed by section 239(1) of the Act.
[37] Shanahan v Scott (1957) 96 CLR 243
[38] Paull v Munday (1976) ALR 245 per Gibbs J at 251 and Murphy J at 269. See also Unsworth v Commissioner for Railways (1958) 101 CLR 73 per Fullagar J at 87 and SGIC (Qld) v Crittenden (1966) 117 CLR 412 per Taylor J at 416.
[39] Regulations are made pursuant to section 303(1) of the Act “as are contemplated by this Act, or as are necessary or expedient for the purposes of this Act”.

Further, it is trite law that by-law making powers should be interpreted so as not to interfere with established rights and freedoms unless they do so in the clearest terms, and if possible they should be interpreted so as to not infringe any applicable constitutional guarantees.
It is indeed an important principle that Acts be construed, where constructional choices are open, so as not to encroach upon common law rights and freedoms. Recently in Evans v State of New South Wales [2008] FCAFC 130 the full Federal Court explained the principle thus:
That principle dates back to the statement in Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 in which O’Connor J, quoting from the fourth edition of Maxwell PB, On the Interpretation of Statutes (Sweet & Maxwell, London, 1905) (at 304):
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.
See also Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 18 and Coco v R (1994) 179 CLR 427. In the latter case the High Court said (at 437):
The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
There has been some discussion whether "fundamental principles" constitute a reliable criterion for a principle favouring one statutory construction over another. McHugh J, who joined in the joint judgment in Coco 179 CLR 427 from which the above quoted passage is taken, observed in Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 (at [28]):
What is fundamental in one age or place may not be regarded as fundamental in another age or place. When community values are undergoing radical change and few principles or rights are immune from legislative amendment or abolition, as is the case in Australia today, few principles or rights can claim to be so fundamental that it is unlikely that the legislature would want to change them.
And further (at [29]):
Hallowed though the rule of construction referred to in Potter v Minahan may be, its utility in the present age is open to doubt in respect of laws that "infringe rights, or depart from the general system of law". In those areas, the rule is fast becoming, if it is not already, an interpretative fiction. Such is the reach of the regulatory state that it is now difficult to assume that the legislature would not infringe rights or interfere with the general system of law.
Finn J, writing extra-curially, after referring to this passage observed that a like rule of construction had been adopted and demonstrated remarkable staying power in United States jurisdictions but had been the object of a great deal of criticism in modern times. His Honour observed, with respect, rightly:
More generally, the more we expose the bases of our interpretative principles and evaluate them in light both of contemporary legislative practice and of modern understandings of interpretation as a process, the greater is the likelihood of continuing reappraisal of the validity and vitality of those principles. Finn P, "Statutes and Common Law" in Corcoran and Bottomley (eds) Interpreting Statutes (Federation Press, 2005) at 57
While acknowledging the validity of that caution we observe that the legislature, through the expert parliamentary counsel who prepare draft legislation, may be taken to be aware of the principle of construction in Potter [1908] HCA 63; 7 CLR 277 and later authorities such as Bropho [1990] HCA 24; 171 CLR 1 and Coco 179 CLR 427, and the need for clear words to be used before long established (if not "fundamental") rights and freedoms are taken away. The principle was recently restated by the Full Court in Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203;(2007) 243 ALR 606; 163 FCR 414. In one sense it has a constitutional dimension.
As McHugh J said in Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 (at 196):
The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.
In Australia, the exercise of legislative power, whether primary or delegated, takes place, as it does in England, in the constitutional setting of "a liberal democracy founded on the traditions and principles of the common law": R v Secretary of State for Home Department; Ex parte Pierson [1998] AC 538 at 587. Sir John Latham, a former Chief Justice of Australia, writing extra-curially in 1960 in the Law Quarterly Review, said:
In the interpretation of the Constitution as of all statutes, common law rules are applied.
In Wik v State of Queensland [1996] HCA 40; (1996) 141 ALR 129 at 230 Gummow J referred to the common law as "... the ultimate constitutional foundation in Australia".
The Full Court went on to address the status of freedom of speech as a right recognised within contemporary Australian society:
Whatever debate there may be about particular rights there is little scope, even in contemporary society, for disputing that personal liberty, including freedom of speech, is regarded as fundamental subject to reasonable regulation for the purposes of an ordered society. The freedoms associated with personal liberty are not residual, ie what is left beyond the boundaries of legal regulation. In Haneef [2007] FCAFC 203; 163 FCR 414 the Court quoted with approval the observation that:
Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction. The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal. Allen TRS "The Common Law as Constitution: Fundamental Rights and First Principles" in Courts of Final Jurisdiction: The Mason Court in Australia, Saunders C (ed), (Federation Press, 1996) p 148.
This approach to construction has been described in the United Kingdom as a "principle of legality" explained by Lord Hoffman in R v Secretary of State for the Home Department; Ex parte Simms[1999] UKHL 33; [2000] 2 AC 115 (at 131):
The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
In Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; (2004) 221 CLR 309, Gleeson CJ referred to Coco 179 CLR 427 and cited Lord Steyn’s judgment in R v Home Secretary; Ex parte Pierson [1997] UKHL 37; [1998] AC 539 at 587, in which his Lordship described the presumption against the infringement of fundamental rights and freedoms as an aspect of the principle of legality governing the relationship between parliament, the executive and the courts. Gleeson CJ said of it (at 329):
The presumption is not merely a common sense guide to what a parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.
Freedom of speech and of the press has long enjoyed special recognition at common law. Blackstone described it as "essential to the nature of a free State": Commentaries on the Laws of England,Vol 4 at 151-152. In 1891 Lord Coleridge said:
The right of free speech is one which it is for the public interest that individuals should possess, and indeed that they should exercise without impediment, so long as no wrongful act is done. Bonnard v Perryman [1891] 2 Ch 269 at 284; see also R v Commissioner of Metropolitan Police; Ex parte Blackburn (No 2) [1982] 2 QB 150 at 155; Wheeler v Leicester City Council [1985] UKHL 6; [1985] AC 1054; Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 203.
There is a particular rule of the common law which gives effect to the value of freedom of speech by preventing local authorities and public authorities from suing for defamation: Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534. In that case the House of Lords said it would be contrary to the public interest to allow a local authority to sue "because to admit such action would place an undesirable fetter on freedom of speech" (at 549). The same principle was applied by the New South Wales Court of Appeal in Ballina Shire Council v Ringland (1994) 33 NSWLR 680. In both the House of Lords and the New South Wales Court of Appeal reference was also made to international conventions on human rights to which the United Kingdom and Australia respectively are parties which involve the protection of freedom of speech.
In its 1988 decision in Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79, the High Court applied a principle supporting freedom of expression to the process of constitutional characterisation of a Commonwealth law. The Australian Bicentennial Act 1980 (Cth) reserved to the Australian Bicentennial Authority the right to use or licence words such as "bicentenary", "bicentennial", "200 years", "Australia", "Sydney", "Melbourne", "founding", "First Settlement", and others in conjunction with the figures "1788, 1988 or 88". Articles or goods which bore any of those combinations without the consent of the Authority would be forfeited to the Commonwealth. Some aspects of these provisions were struck down. In their joint judgment Mason CJ, Deane and Gaudron JJ (Wilson, Dawson and Toohey JJ agreeing) said (at 100):
Here the framework of regulation ... reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorised use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power.
Brennan J in a separate judgment in the same case said (at 116):
Freedom of speech may sometimes be a casualty of a law of the Commonwealth made under a specific head of legislative power – for example, wartime censorship – or of a law designed to protect the nation – for example, a law against seditious utterances – but freedom of speech can hardly be an incidental casualty of an activity undertaken by the Executive Government to advance a nation which boasts of its freedom.
The present case is not about characterisation of a law for the purpose of assessing its validity under the Constitution of the Commonwealth. The judgments in Davis [1988] HCA 63; 166 CLR 79 however support the general proposition that freedom of expression in Australia is a powerful consideration favouring restraint in the construction of broad statutory power when the terms in which that power is conferred so allow.
The Federal Court also commented on the nature of religious freedom in Australia:
In the context of World Youth Day it is necessary to acknowledge that another important freedom generally accepted in Australian society is freedom of religious belief and expression. Section 116 of the Constitution bars the Commonwealth from making any law prohibiting the free exercise of any religion. This freedom is recognised in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights which, in Art 18, provides:
1.    Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2.    No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3.    Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
That said, this state inherited the unlimited legislative authority of the English legislature of 1836, which such legislature has long interfered with religious freedoms in that country. Further, section 116 of the Commonwealth Constitution does not apply to restrict state lawmaking, nor does the State Constitution contain any overt restriction on state legislative power to restrict religious freedoms. These issues were considered in some detail by the Full Court in Grace Bible Church v Reedman (1984) 36 SASR 376. In that case White J said at 385-388:
The common law has always recognised the supremacy of Parliaments (which were subservient to the King before the so-called Glorious Revolution of 1688 but not subservient to him thereafter) and has never purported to prevent the Parliament from asserting and exercising an absolute right to interfere with religious worship and the expression of religious beliefs at any time that it liked. Originally, the Parliament of England prohibited particular religions altogether. Later, it established one religion to the exclusion of all others. Finally, it relaxed certain prohibitions and restrictions against non-established religions. What is important to recognise is that the Parliament always claimed and exercised these sweeping powers over fundamental rights of individuals which many thinkers perceive to be inalienable because given by the natural law or divine law; and the common law never gainsaid this claim of Parliament.
The absolute power of the State has been questioned by legal philosophers throughout the ages, including modern legal philosophers such as Dworkin and Ely. Questioning does not effect change. Whatever may be the theory of legal philosophers, the common law which applies in this State is the common law of England as it existed in 1836, as it was translated into this Colony and as it has developed within this Colony and State in the last 148 years. There is nothing in that common law which inhibits or is capable of inhibiting the power of the Parliament of the State to make laws for the peace, welfare and good government of this State, including laws which affect the freedom of religious worship and religious expression. Whilst the proposition put forward by counsel for the Church has respectable philosophic and academic support, it does not represent the state of the law.
It is true that it is a common law offence for private individuals to wilfully interfere with assemblies of other persons exercising their rights to freedom of religious expression and worship (see Reg. v. Darling9 ), but that does not mean that the Parliament cannot wilfully interfere with such "rights" of citizens. Under received constitutional doctrine, the Parliament of the State of South Australia is supreme and, subject only to the Constitution Act, 1901, the Constitution Act, 1934-1975 (SA), the receding shadows of the Colonial Laws Validity Act (UK) and considerations of extraterritoriality, it can make whatever laws it wishes for the peace, welfare and good government of this State. See s 5 of the Constitution Act (SA). There are no fetters upon the power to make laws affecting religious freedom. The Parliament of the State of South Australia, like the Parliament of the United Kingdom, is not bound by the kind of restriction upon making laws on this topic to be found, for example, in s 116 of the Constitution Act, 1901 (which prohibits the Commonwealth Parliament from restricting religious freedom and applies only to the Commonwealth Parliament) and in the First Amendment to the Constitution of the United States of America. See the historical note in Quick and Garran, Constitution of Australia p. 951 which reads:
"Clause 16, Chap. V. of the Commonwealth Bill of 1891 was: "A State shall not make any law prohibiting the free exercise of any religion." This was adopted verbatim at the Adelaide session, 1897. At the Melbourne session, Mr. Higgins moved an amendment to make the clause read:
"A State shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or imposing any religious test or observance."
Mr. Higgins argued that these words might be necessary to prevent an implication, arising out of the recognition of Almighty God in the preamble, that the Commonwealth had power to legislate upon religious matters. The objections raised to the amendment were that the "free exercise of religion" was too wide an expression, and might sanction objectionable rites; and that the provision was unnecessary, as the Federal Parliament had no power to legislate as to religion. Mr. Higgins' amendment was negatived, as was also a suggestion by the House of Assembly in Tasmania, to add the words "nor appropriate any portion of its revenues or property for the propagation or support of any religion." The clause itself was then negatived. (Conv. Deb., Melb., pp. 654-64.) At a later stage Mr. Higgins proposed a new clause, in substantially the form of the above section (116). Mr. Symon moved, as an amendment, to substitute the following provision:
"Nothing in this Constitution shall be held to empower the Commonwealth to require any religious test as a qualification for any public office or public trust under the Commonwealth."
After debate, Mr. Symon's amendment was negatived by 22 votes to 19, and Mr. Higgins' clause was carried by 25 votes to 16. (Conv. Dev., Melb., pp. 1769-79.) Drafting amendments were made after the fourth report."
Section 116 as finally enacted reads:
116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
It takes something as powerful as a constitutional provision such as this to restrict the power of the Parliament. In a secular State, it is not enough to assert, as the appellant asserts, that all authority comes from God and that any law which, in the belief of the appellant, tends to undermine divine authority is invalid. Even if natural law jurisprudence did hold sway in this State, it never went as far as that.
The appellant could logically have argued that a law which restricts freedom of religious expression and worship is an inherently bad law, and, by implication, so bad that it could only tend to unrest, disobedience, even revolt, thus rendering it a law beyond the power of the Parliament which is restricted to making laws for the peace, welfare and good government of the State. The answer to that kind of argument is that the opinion of the Parliament as to what laws are for the peace, welfare and good government of the State is paramount and conclusive as a matter of law. The Parliament's opinion, as expressed in a particular statute, cannot be impugned in a court of law as being an invalid exercise of Parliament's power. Even in relation to the Constitution Act, 1901, the Courts are confined to ruling on questions of power. The Courts cannot say that a law within power is not for the peace, welfare and good government of the Commonwealth. And on the limited questions of power, the Courts have the legal yardstick of a written Constitution to guide them. There is no equivalent constitutional yardstick in the Constitution Act of South Australia relating to Parliament's powers nor has the Supreme Court of this State been constituted the guardian over the manner of the Parliament's exercise of its powers. If the Court could substitute its own opinion for the Parliament's opinion as to what is a law for the peace, welfare and good government of the State (or if a judge could uphold every man's opinion that a particular law was invalid because it was not a good law) we would not be living under the rule of law but in a state of chaos. If a particular statute or section of a statute does interfere with or impinge upon the rights to freedom of religious worship and expression of opinion of a sufficient number of citizens, the remedy lies in the ballot box, not in an appeal to the Supreme Court to declare the law invalid.
I said earlier that the Parliament has in the past freely exercised the power to interfere with religious freedom. It is not necessary to look in the history books but only at the speeches of the law lords in Bowman v. Secular Society Limited in order to see how often and how radically the Parliament has asserted and exercised its right to do so. Rich J.'s assertion in Adelaide Company of Jehovah's Witnesses Incorporated v. The Commonwealth ("it may be said that religious liberty and religious equality are now complete, Maitland, Constitutional History of England, p.120”) cannot stand examination either by reference to the facts of history, Bowman's case, or Maitland himself. Maitland referred (p. 519) to the rigorous laws against Protestant non-conformists as to which "it is customary for writers to become eloquent (but) they are trifles when compared with the rigorous laws against Catholics". Between 1791 and 1868, many restrictions on these persons were removed but many remained until 1868 and long afterwards. In 1836, the year when the common law was inherited by South Australia, there were still many restrictions imposed by Parliament upon non-conformist Protestants and Catholics. Maitland was able to enumerate a number of restrictions (pp. 520-522) still existing in 1888 (fifty-two years after 1836) which showed quite clearly that religious liberty and religious equality were still far from "complete", although a good deal of progress towards religious freedom had been made by 1836. It is one thing to have gradual improvement in the actual state of the law concerning religious freedom until most former barriers against it are demolished. It is quite another to assert that the Parliament cannot at any time change that state of affairs and revert to some of the former restrictions if it so wills. As I said, the common law has never contained a fundamental guarantee of the inalienable right of religious freedom and expression. Rather, the common law has supported the supremacy of the Parliament. More particularly, it has not given to the Supreme Court any power to declare invalid an Act of Parliament simply because it infringes or impinges upon religious freedom.

Whilst there may be an interesting question as to whether jurisprudence has moved on in since that case, plainly the decision currently binds the District Court.
In any event, I do not understand the Grace Bible Church case to say that the practice of religion is not an important right or freedom.
The cited case of Evans dealt with a NSW law that authorised the making of regulations for or with respect to "regulating the use by the public of, and the conduct of the public on, World Youth Day venues and facilities".[48] A regulation was made that included the following prohibition:
Clause 7
(1)An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that:
(a)     is a risk to the safety of the person or others, or
(b)     causes annoyance or inconvenience to participants in a World Youth Day event, or
(c)     obstructs a World Youth Day event.
(2)A person must not, without reasonable excuse, fail to comply with a direction given to the person under subclause (1).
Maximum penalty: 50 penalty units.
(3)A person is not guilty of an offence under this clause unless it is established that the authorised person warned the person that a failure to comply with the direction is an offence.
[48] Section 58(2) of the World Youth Day Act (2006)
The applicants were people who proposed to rally variously against sexism, racism and homophobia on World Youth Day, communicate to members of the public and hand out items to the public. The Federal Court held that neither a general regulation-making power nor one that authorised the making of regulations “regulating the use by the public of, and the conduct of the public on, World youth Day venues and facilities” reflected a parliamentary intention to allow regulations to be made that inhibited or interfered with the exercise of the fundamental freedom of speech by prohibiting merely annoying conduct.
I must recognise all this, when interpreting the by-law-making scheme reflected in the two Local Government Acts.
There is a clear distinction drawn between the strictly limited scope of the by-law making powers in question concerning roads, and other by-law making powers in the legislation, for example section 238 concerning local government land. Section 239 appears to reflect a plain intention that if by-laws that might encompass roads are to be enacted which go beyond the topics articulated in section 239 or some other specific statutory source of power to make by-laws concerning roads, that should only occur if authorised by regulation, attended with the range of parliamentary checks and balances that accompany the making and promulgation of regulations. Section 239 is a later and very specific statutory provision than the general catch-all power granted at the end of a very long list of other powers in the Local Government Act 1934.
In the final analysis, taking all the above into account, I conclude that section 239 and the by-law making scheme of the two Local Government Acts evinces an intention that by-laws concerning roads that go beyond the articulated powers in section 239 or some other specific statutory provision, need to be authorised by regulation.

Conclusion as to the validity of paragraphs 2.3 and 2.8 of By-law No. 4 - Roads

For the forgoing reasons, I find that neither the first three words of paragraph 2.3 insofar as haranguing, canvassing and preaching are prohibited, nor paragraph 2.8 of By-law No. 4 – Roads, are within the power of section 239 of the Local Government Act 1999 or section 667 of the Local Government Act 1934.
Accordingly that part of paragraph 2.3 which bans haranguing, canvassing and preaching, and paragraph 2.8, are invalid.

Severance

I turn to the issue of whether the offending part of paragraph 2.3 and paragraph 2.8 may be severed from remainder of the By-law. Section 14A of the Acts Interpretation Act 1915 makes it clear that the principles of interpretation therein are equally applicable to statutory instruments such as by-laws. Hence section 22A(2) of the Acts Interpretation Act, which provides that any provision of an Act which would otherwise exceed the power of the State, is nevertheless valid to the extent to the which it does not exceed power, applies equally to the provisions of a by-law.
To displace this principle, the first three words of paragraph 2.3 and paragraph 2.8 would need to form part of an inseparable context such that the presumption imposed by sections 22A and 14A of the Acts Interpretation Act is excluded. In particular, one should ask whether severance would cause the remaining valid part of the enactment to operate differently upon the people or matters that fell within it. See Dixon J in Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 371.
In the case of the by-law in question, the first three words of paragraph 2.3 and paragraph 2.8 operate as discrete and separate prohibitions. Excising them would leave the other provisions unaffected. No obvious dependencies operate between the first three words of paragraphs 2.3 and paragraph 2.8 on the one hand, and the other paragraphs. The effect of the other paragraphs on members of the community will be exactly the same whether or not the first three words of paragraphs 2.3 and paragraph 2.8 go or remain. The effect of severing the first three words of paragraphs 2.3 and paragraph 2.8 is simply to expunge two discrete and invalid prohibitions from an otherwise effective by-law.
In the case of Rice v Daire (1982) 30 SASR 560 at 568 et seq, Bollen J dealt with a previous attempt by the respondent to prohibit haranguing and preaching on the streets of Adelaide. In that case Bollen J ruled that a by-law making statutory authority enabling the prohibition or regulation of “singing and playing music” on roads could not authorise by-laws prohibiting haranguing or preaching. The court held that such bans operated separately and discretely from the other matters (within power) the Council sought to ban, and accordingly were severable.
It is plain that the bans on preaching, canvassing, haranguing and handing out printed matter act discreetly from the other provisions of the By-law and are hence severable. Hence whilst I have held that the first three words of paragraph 2.3 which bans preaching, canvassing and haranguing, and paragraph 2.8 are invalid, I hold that they are severable from the remainder of the By-law. The validity of the remainder of the By-law is not challenged.

The application for a declaration of invalidity on the ground of impermissible restriction on a constitutional right of free political discourse

The applicant further submits that the clauses are invalid as an impermissible restriction on a constitutional right of free political discourse embodied in both the Commonwealth and the State Constitution. It is plain that there is such a right flowing from the Commonwealth and the State Constitutions’ provisions establishing and guaranteeing systems of democracy and representative government.
Although early in Australia’s post-federation history the High Court recognised, for example, an implied right of individual access to government and the seat of government,[49] it was not until after a series of minority judgements by Murphy J proclaiming that the Commonwealth Constitution contained a range of implied guarantees of individual freedoms, including a freedom of movement, speech and other communication flowing from the democratic framework established by the Australian Constitution,[50] that in 1992 the High Court recognised that the Constitution contained a guarantee of freedom of political communication. In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 the High Court held that there was such an implication, and struck down a law that prohibited criticism of the Industrial Commission or its members. Deane and Toohey JJ stated that the implication operated at two levels. They said at p 74:
The first is the level of communication and discussion between the people of the Commonwealth on the one hand and the Parliament and its members and other Commonwealth instrumentalities on the other…
The second level at which the implication… operates is the level of communication between the people of the Commonwealth. Inherent in the Constitution’s doctrine of representative government is an implication of the freedom of the people of the Commonwealth to communicate information, opinions and ideas about all aspects of the government …
[49] Griffiths CJ and Barton J in R v Smithers; Ex parte Benson (1912) 16 CLR 99
[50] Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54, Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556
In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 the High Court held that a law banning paid political advertising on radio and television was wholly invalid as infringing a constitutionally guaranteed freedom of political discussion. Mason CJ expanded on the scope of such freedom at p 142:
The concept of freedom to communicate with respect to public affairs and political discussion does not lend itself to subdivision. Public affairs and political discussion are indivisible and cannot be subdivided into compartments that correspond with, or relate to, the various tiers of government in Australia. Unlike the legislative powers of the Commonwealth Parliament, there are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have a primary connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs.
Ultimately in the case of Lange v Australian Broadcasting Commission (1997) 189 CLR 520, at 567-8 the High Court determined a two stage test to decide whether or not a particular law impermissibly infringes the implied freedom. Firstly does the law effectively burden the said freedom of communication. Secondly, if it does, is the law reasonably proportionate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government including the system for constitutional amendments.
In this case, all agree that the By-law in question does effectively burden the relevant freedom of political communication. The respondent and the Intervener argue strongly that the By-law is nonetheless reasonably proportionate within the second limb of the Lange test.
I do not go on to consider that issue.
If a regulation is found to be invalid as not authorised by the statute under which it is said to be made, then a court should not ordinarily hypothesise validity under the statute so that it may then test its validity under the Constitution.[51] This approach is appropriate given the presumption in favour of the constitutionality of statutes: Federal Commissioner of Taxation v Munro(1926) 38 CLR 153 at 180 (Isaacs J); Attorney-General (Victoria) v Commonwealth (1945) 71 CLR 237 at 267 (Dixon J); Chung Kim Lim v Minister for Immigration Local Government and Ethnic Affairs(1992) 176 CLR 1 at 14 (Mason CJ).
[51] Evans v State of New South Wales [2008] FCAFC 130 at para 40.
Hence, whilst I have set out a thumbnail sketch of the applicants’ further attack on the By-law in deference to the arguments put, as I have found the portions of the By-law affecting the applicants invalid for other reasons it is not appropriate to decide the further issues raised.

Is it a licence?

There is also potential force in the argument that the prohibition on haranguing, canvassing and preaching combined with the ability to apply and receive permission to do so at specified places and for specified periods, potentially for a fee, comprises a licensing regime. Indeed, it is plain that the Council itself characterises and treats applications for permission to harangue, canvass and preach as licence applications and if successful grants a “Licence Type Online – On Street Activities Permit”.[52] If that is the correct characterisation, then the By-law may also be invalid as infringing section 246(2) of the Act. This issue is also unnecessary to decide.
[52] See exhibit P8.