Corporation of the City of Adelaide v Corneloup
[2011] SASCFC 84
•10 August 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
THE CORPORATION OF THE CITY OF ADELAIDE v CORNELOUP & ORS
[2011] SASCFC 84
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)
10 August 2011
LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - ORDINANCES, REGULATIONS, BY-LAWS AND LOCAL LAWS - VALIDITY - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - LEGISLATIVE HISTORY OF ACT
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION - RIGHTS AND FREEDOMS IMPLIED IN COMMONWEALTH CONSTITUTION - FREEDOM OF POLITICAL COMMUNICATION - GENERAL PRINCIPLES
Appeal against a decision of a judge of the District Court made in its special jurisdiction conferred by s 276 of the Local Government Act 1999 (the 1999 Act) – a by-law made by the appellant, By-Law No. 4 - Roads (the by-law) was, in part, declared invalid – an application to determine the validity of the by-law was made following the appellant’s prosecuting of a complaint in the Magistrates Court against the first and second respondent after they preached and canvassed in Rundle Mall in 2009 without permission - the words “preach”, “canvass” and “harangue” and cl 2.8 of the by-law were declared to be beyond the appellant’s by-law making powers - whether the regulation of preaching, canvassing and haranguing in cl 2.3 and the whole of cl 2.8 is valid.
Held: Appeal dismissed – clause 2.3 must be read down by striking out the words “preach”, “canvass” and “harangue” – clause 2.8 must be struck out in its entirety.
The regulation of all preaching, canvassing and haranguing is not a by-law “about the use of roads for” the purposes prescribed by s 239 of the 1999 Act – the restriction of the regulated conduct is not imposed for the prevention of nuisances – the by-law is not authorised by s 667(1)3(LIV) of the Local Government Act 1934 – permission given pursuant to the by-law is not in the nature of a licence and does not need to be supported by an express licensing power - Regulation 13 of the Local Government (Implementation) Regulations 1999 is limited to physical obstructions and cannot be construed to apply to obstructions caused by a gathering of people.
The by-law is one made “for the convenience, comfort and safety" of the inhabitants of the City of Adelaide, subject to the constitutional protection of political communications and s 238(2) of the 1999 Act – the by-law does not exceed the limitation on the power to control conduct on roads implied by s 238(2)(a) of the 1999 Act. The statutory requirement that a legal practitioner certify that the by-law meets certain conditions was satisfied – the providing of an unsigned certificate through electronic means meets the prescribed circumstances of s 9 of the Electronic Transactions Act 2000.
The by-law is inconsistent with the implied constitutional freedom of political communication - the regulated conduct cannot be read down by a process of judicial construction so that the by-law conforms with the Constitution.
Local Government Act 1999 (SA) s 4, s 54, s 208, s 238, s 238(1), s 238(2), s 238(2)(a), s 239, s 240, s 246(2), s 246(3), s 249(4), s 276, s 290; Local Government Act 1934 (SA) s 667, s 667(1)IV, s 667(1)9(XVI), s 667(1)3(LIV), s 667(1)LIV, s 668, s 674, s 676, s 739; Local Government (Implementation) Regulations 1999 (SA) Reg 13, Reg 13(a); Electronic Transactions Act 2000 (SA) s 9; Acts Interpretation Act 1915 (SA) s 13, s 18, s 25; The Municipal Corporations Amendment Act 1903 (SA) s 24; Municipal Corporations Act 1835 (UK) s 90; Municipal Corporations Act 1882 (UK); Municipal Corporations Act 1861 (SA) s 146, s 147, s 148 ; District Councils Act 1858 (SA) s 122; District Councils Act 1876 (SA); District Councils Act 1887 (SA); Municipal Corporations Act 1880 (SA) s 239, s 242, s 243, s 252; Municipal Corporations Act 1890 (SA) s 314, s 316, s 327; Municipal Corporations Act 1923 (SA) s 504, s 504(CCVI), s 505, s 510, s 522; Local Government Act 1934 (SA) s 508-509, s 667(51), s 671, s 673 – 674, s 739; By-laws Enabling Act 1888 (SA) ; Local Government (Implementation) Act 1999 (SA) s 35, s 35(1)(b)(ii), s 46; Municipalities Act 1906 (WA); Local Government Act 1928 (Vic); Municipal Corporations Act 1863 (Vic); Boroughs Statute Act 1869 (Vic); Local Government Act 1874 (Vic); Local Government (General) Regulations 1999 (SA); Local Government Act Amendment Act 1978 (SA) s 669; Local Government Act Amendment Act (No 2) 1984 (SA) s 26, referred to.
Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323; Cunliffe v Commonwealth (1994) 182 CLR 272; Bank of New South Wales v Commonwealth (1948) 76 CLR 1; Samuels v Hall (unreported) Supreme Court of South Australia, Zelling AJ, 29 May 1969; Samuels v Hall [1969] SASR 296; Groom v The Corporation of the City of Port Adelaide (1922) 31 CLR 109; Shakespeare v King [1914] SALR 105; Seeligson v City of Melbourne [1935] VLR 365; Elwood v Bullock (1844) 6 QB 383; Williams v Melbourne Corporation (1933) 49 CLR 142; Minister of State for Resources v Dover Fisheries Pty Ltd 116 ALR 54; Harrison v Godman (1751) Burr 12; 97 ER 161; Nowill (1786) 1 TR 118; Johnson v Mayor of Croydon (1886) 16 QBD 708; Strickland v Hayes [1896] 1 QB 290; Ex parte Stafford Re Shire of Boroondara 20 VLR 23; Re City of Richmond; Ex parte Collins 6 ALR 142 ; Thomas v Sutters [1900] 1 Ch 10; Bishop v Deverix [1908] SALR 122; South Australia v Tanner (1989) 166 CLR 161; Victoria v Commonwealth (1996) 187 CLR 416; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Arthur Yates & Company Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; Coleman v Power (2004) 220 CLR 1; Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; Ross Chenoweth Ltd v Hayes [1955] SASR 66; Re Local Government Act 1874; Ex parte Taylor (1885) 6 ALT 170; R v Shire of Benalla; Ex parte Redgate (1886) 8 ALT 80; Robinson v City of Springvale (1970) 22 LGRA 166; Concore Pty Ltd v Mulgrave Shire Council [1988] 2 Qd R 395; Levy v Victoria (1997) 189 CLR 579; Pidoto v Victoria (1943) 68 CLR 87; Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, discussed.
Attorney-General v P.Y.A. Quarries Ltd [1957] 2 QB 169; Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182; Brown v Local Board of Holyhead (1862) IH & C 601; Q v Mary Wood 5 E&E 49 ; Crowagh v Warnambool Shire Council 6 Argus LR 17; Barber v Penley [1893] 2 Ch 447; Bellamy v Wells (1890) 60 LJ Ch 156; Higgins v Egleson [1877] 3 VLR 196; Plunkett v Smith (1911) 14 CLR 76; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579; R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529; Melbourne Corporation v Barry (1922) 31 CLR 174; Leslie v City of Essendon [1952] VLR 222; Lynch v Brisbane City Council (1961) 104 CLR 353; Kruse v Johnson [1898] 2 QB 91; Widgee Shire Council v Bonney (1907) 4 CLR 977; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Preach", "Canvass", "Harangue"
THE CORPORATION OF THE CITY OF ADELAIDE v CORNELOUP & ORS
[2011] SASCFC 84Full Court: Doyle CJ, White and Kourakis JJ
DOYLE CJ: I would dismiss the appeal, for the reasons given by Kourakis J.
WHITE J: I agree that the appeal should be dismissed. I agree with the substance of the reasons of Kourakis J.
KOURAKIS J: This is an appeal brought by The Corporation of the City of Adelaide against a decision, made in the special jurisdiction conferred on the District Court by s 276 of the Local Government Act 1999, declaring invalid, in part, one of its by-laws. I will refer to the appellant as the City of Adelaide or the City, and to its geographical area as Adelaide.
The By-Law
Clauses 2.3 and 2.8 of the by-law entitled “By-Law No. 4 – Roads” (the by-law) are challenged.
The impugned clauses of the by‑law read as follows:
2. ACTIVITIES REQUIRING PERMISSION
No person shall without permission on any road:-
…
2.3Preaching and Canvassing
preach, canvass, harangue, tout for business or conduct any survey or opinion poll provided that this restriction shall not apply to a 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;
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;
The Judge of the District Court declared the first three words of cl 2.3, “preach, canvass, harangue” and all of cl 2.8 to be beyond the City of Adelaide’s by-law making powers. In these reasons, I will refer to the clauses jointly as the by-law or the impugned by-law. The hearing before the Judge was conducted on the factual basis that the respondents preached and handed out written material in the commercial and shopping precincts of Adelaide. The application to determine the validity of the by-law was made because the City of Adelaide had prosecuted a complaint in the Magistrates Court alleging that Samuel Corneloup and others in February 2009 preached and canvassed in the Rundle Mall without permission. Even though the defendants to the complaint were not charged with haranguing, the City of Adelaide contends that the respondents’ conduct, at least on some occasions, has constituted haranguing. It was also common ground that the respondents distributed printed material in association with their preaching.
It is, therefore, the validity of the regulation of preaching, canvassing and haranguing in cl 2.3 and the whole of cl 2.8 which is in question in these proceedings. I will confine myself to those matters. References to the validity of the by-law in my reasons should be so understood. Indeed, other than on the question of severance, it is doubtful that the validity of the other elements of the by-law form part of the matter before the Court.[1]
[1] The limit of the matter before the Court is critical because, on this appeal, the Court is exercising federal jurisdiction.
It is convenient to set out immediately my construction of the words “preach”, “canvass” and “harangue”. I start by observing that the manifest purpose of cl 2.3 and cl 2.8 is to reduce the likelihood that road users and, in particular, pedestrians on footpaths or in malls[2] will be accosted by others. It appears to set a high value on the orderliness of Adelaide’s roads; it reflects a policy that road users should not be impeded by physical or aural obstacles when traversing Adelaide’s streets. There is nothing in cl 2.3 which militates against giving those words their natural and wide meanings.
[2] See definition of “road”, s 4 Local Government Act 1999.
Accordingly, I would construe the word “preach” to mean the proclamation, advocacy and teaching of religious or moral (including political) precepts. It includes, but is not limited to, obtrusive and tedious forms of address.
In my view, “to canvass” is to solicit support for religious, moral or political beliefs or positions or to solicit votes for a candidate for a public office.
I would construe “harangue” to mean the giving of a loud and protracted speech or address which will often, but not necessarily, be aggressive or critical. By aggressive, I do not mean words which threaten harm, but a polemical style of speech. The other words of cl 2.3 do not, in my view, afford any basis upon which to limit the word “harangue” to aggressive and critical speech. The words “preach” and “canvass” largely cover speech which will often, if not mostly, be temperate and moderate in tone, volume and content.
The plain words of cl 2.8 require no further elaboration in the context of these proceedings.
Whether or not the terms of cl 2.3 and cl 2.8 should be read down in order to avoid invalidity will be dealt with below.
I will refer to the first three forms of speech in cl 2.3 and the distribution of reading material regulated by cl 2.8 as “the regulated conduct”.
The By-Law Making Powers
The powers of local government authorities to make by-laws are, relevantly to this appeal, found in two eponymous enactments, the Local Government Act 1934 (the 1934 Act) and the Local Government Act 1999 (the 1999 Act). It will later be necessary to consider the legislative history which has resulted in their curious coexistence in some detail. For now, it is convenient to refer to the statutory grants of power on which the City of Adelaide relies for the making of the by-law:
Local Government Act 1934
667—By-laws
(1)Subject to this Act, a council may make by-laws for all or any of the following purposes:
3 Uses and licences
…
LIV for regulating the form and conditions of any licence or permit granted by the council, the form of application for it, and its transfer, renewal, suspension or revocation, the fees to be paid on any licence or permit, or its transfer or renewal, and how any such fees may be recovered;
4 Nuisances and health
I for the prevention and suppression of nuisances;
…
9 Miscellaneous
XVI generally for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants.
Local Government Act 1999
239—By-laws about use of roads
(1)A council may make by-laws about the use of roads for–
…
(b) the broadcasting of announcements or advertisements; or
…
(d) soliciting for religious or charitable purposes; or
…
….(2)Subject to this Act, a by-law made under subsection (1) can regulate, restrict or prohibit the use of which it relates.
Local Government (Implementation) Regulations 1999 (the Implementation Regulations)
13—By-laws
(1)A council may make by-laws for all or any of the following purposes:
(c)for preventing obstruction of any street or road, or any footway, water-channel, or watercourse in a street or road.
The City of Adelaide does not rely on the power conferred by s 238 of the Local Government Act 1999 but, for reasons which I explain below, it must be read together with the provisions on which the City of Adelaide does rely. Section 238 provides:
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.
The Judge held that none of the abovementioned powers authorised the making of the by-law. I will start by expressing each of my conclusions in summary form before elaborating on my reasons for so holding.
Summary of Conclusions
Dealing first with s 239, I accept that preaching, canvassing and haranguing may sometimes involve the making of announcements and soliciting, moral or financial, support. However, the regulation of all preaching, canvassing and haranguing is not a by-law “about the use of roads for” the purposes prescribed by s 239 of the 1999 Act.
I would also hold that the restriction of the regulated conduct is not imposed for the prevention of nuisances pursuant to s 667(l)4 of the 1934 Act. The regulated conduct is not, generally speaking, in itself, a nuisance, nor does the by-law forbid forms of the regulated conduct which are likely to be a nuisance to others, although in some instances they might be a nuisance.
The by-law is not authorised by s 667(1)3(LIV) of the 1934 Act; that power is merely facilitative of other licensing powers, not here applicable, and allows the City of Adelaide effectively to manage licensing regimes supported by those other powers.
Regulation 13 of the Implementation Regulations is, in my view, limited to physical obstructions. If it were, on a proper construction, applicable to obstructions caused by a gathering of people, it is a disproportionate exercise of the power to require permission to undertake the regulated conduct. The regulated conduct will not, generally, obstruct roads by causing crowds to gather and a by-law targeted more specifically to that mischief could easily have been made.
However, I would hold, that subject to the constitutional protection of political communications and the effect of s 238(2) of the 1999 Act, the by-law is one made “for the convenience, comfort and safety”[3] (the convenience, comfort and safety power) of the inhabitants of the City of Adelaide. For reasons which I develop below, those words should not be limited by reference to the preceding clauses of s 667 of the 1934 Act. This placitum of the 1934 Act authorises the regulation of conduct which substantially interferes with the convenience, comfort and safety of the inhabitants even though it may not amount to a common law nuisance. I am not persuaded that the by-law, in its application to the regulated conduct, is such an unreasonable or disproportionate measure that it falls outside the legislative authority conferred by those words. I cannot say that it is unreasonable to take the view that the regulated conduct, if left uncontrolled, would interfere with commercial activity and detract from the public’s use of and enjoyment of Adelaide’s streets. Enforcement, after the event, of a prohibition limited only to those forms of the regulated conduct which actually materially interfere with the public’s use of Adelaide’s roads may not be effective. It is not unreasonable to take the view that administrative regulation of the objectionable conduct generally will enhance the commercial, residential and recreational life of Adelaide’s inhabitants more effectively than a prohibition of the more egregious forms of that conduct which can only be enforced by a prosecution brought after the event.
[3] Local Government Act 1934, s 667(1)9(XVI).
I accept that the convenience, comfort and safety power in s 667(1)9(XVI) of the 1934 Act is subject to any negative implication which may properly be drawn from the by-law making provisions of the 1999 Act. Section 238 of the 1999 Act indicates that the use of roads cannot be as closely controlled as other local government land. The convenience, comfort and safety power cannot be used in a way which renders ineffective the exclusion of roads from the unrestricted management powers conferred on other local government land by s 238 of the 1999 Act. In my view, that consideration emphasises the need to guard against too wide a meaning of the words “comfort and convenience”; they do not include minor irritations which are part of every day urban living. I would hold that the by-law, properly construed, does not exceed the limitation on the power to control conduct on roads implied by s 238(2)(a) of the 1999 Act.
The respondents contend that if the by-law is otherwise within power, a permission given pursuant to the by-law is in the nature of a licence and, therefore, by reason of s 246(2) of the 1999 Act can only be supported by an express licensing power.
Section 246(2) of the 1999 Act provides:
A council cannot make a by-law that requires that a person obtain a licence from the council to carry out an activity at a particular place unless the council has express power to do so under an Act.
I would hold that the restriction in s 246(2) of the 1999 Act pertains to licences to occupy particular places for the purpose of commercial or other business-like activities which are conducted continuously, regularly or frequently from that location. It does not affect the grant of power in s 246(3) to make a by-law which operates subject to specified conditions and exemptions.
The 1999 Act prescribes the manner and form for the making of regulations and, by s 668 of the 1934 Act, those provisions apply to regulations authorised by a power given in the latter Act. The Judge held that the by-law was invalid on the ground that the City of Adelaide failed to comply with those procedural requirements. In particular, s 249(4) of the 1999 Act provides:
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.
An unsigned certificate was provided by a legal practitioner in electronic form. The Electronic Transactions Act 2000 provides that, in prescribed circumstances, an electronic communication may satisfy a requirement in law that a document be signed to be effective. The Judge found that the electronic provision of the certificate did not meet the prescribed circumstances of the Electronic Transactions Act 2000.
Both the negative command “must not” and the context of s 249(4) of the 1999 Act, strongly suggest that a certificate is an essential condition of validity. I would so hold and, in particular, I am unable to find any basis upon which the requirement for a signature can be exempted from the apparent essentiality of the other conditions imposed by s 249 of the 1999 Act. However, in my view, the statutory requirement that the certificate be signed was satisfied by reason of s 9 of the Electronic Transactions Act 2000. The certificate was provided by an email in circumstances which allowed the identification of the legal practitioner and unequivocally showed that he subscribed to the view expressed in the certificate even though he did not sign it.
My holdings so far have not taken into account the constitutional protection of political communications. I would hold that the by-law is inconsistent with the implied constitutional freedom of political communication. This ground of attack on the by-law was considered but not decided by the Judge. In my view, an obligation to obtain permission to speak on political matters is incompatible with the system of democratic and responsible government established under the Constitution. Even though I have held that the by-law is reasonably appropriate and adapted to the convenience, comfort and safety of the inhabitants of the City of Adelaide, it secures that objective in terms which are calculated to restrict impermissibly public speech on political and governmental matters.
The final question which must be addressed is the question of severance. Plainly enough, the words “preach”, “canvass” and “harangue” can be read out of cl 2.3 leaving the remainder to operate unaffected by the words struck out. The more difficult question is whether those words can be further read down to operate consistently with the implied freedom. I can not divine any basis upon which the words “preach” and “canvass” can be limited to forms of speech which sufficiently undermine public order to justify their regulation. Even aggressive, in the sense that I explained that word in [11] above, and critical forms of harangue do not require regulation in the interests of public order and, after all, are a fundamental part of political debate. Having regard to the words “preach” and “canvass” which so obviously encompass forms of speech which pose no threat to public peace and order, it is not possible to preserve the validity of the use of the word “harangue” by limiting that word to speech which may provoke a violent response or breach of the peace. The comprehensive scope and plain words of cl 2.8 do not permit any reading down at all.
The express exclusion from the scope of both cl 2.3 and cl 2.8 of conduct undertaken in connection with local, State and Federal elections or referenda is significant. However, the terms of that exclusion are much narrower than the scope of the implied constitutional freedom itself. A construction which brings the impugned by-law within the constraints of the constitutional protection of political communications could only be achieved by making legislative choices as to the form of the by-law. For that reason, s 13 of the Acts Interpretation Act 1915 (AIA) is of no avail and the regulated conduct cannot be read down by a process of judicial construction so that the by-law conforms with the Constitution. The words “preach, canvass, harangue” in cl 2.3 and the whole of cl 2.8 must be struck out.
Use of Roads
Section 239 of the 1999 Act is not expressly limited by reference to purpose. It authorises the making of by-laws “about the use of roads for” various activities including the broadcasting of announcements and soliciting. In my view, it can properly be described as a subject matter power and the words “about” and “for” are, on their face, as wide as the phrase “with respect to” in s 51 of the Constitution. There is, I accept, an implied purposive element which limits the exercise of the power to municipal objects and I will proceed on that basis. However, it seems to me that the express grant of power to make by-laws about a specified subject matter is necessarily a legislative recognition that the regulation of that subject matter is, generally, a reasonable and appropriate measure for the advancement of the interests of the municipality and its inhabitants. There will, therefore, be considerably less scope for impeaching the validity of a by-law which is “about” the relevant subject matter by reference to that implied purposive element of the power.
Accordingly, I will determine whether the by-law is authorised by s 239 of the 1999 Act, primarily by considering whether it can be characterised as a by-law about the use of roads for public announcements and soliciting for religious and charitable purposes. Its characterisation as such a law must be determined by reference to the rights, powers, duties and privileges it creates. The legal and practical operation of the statutory norms so created must have a sufficiently close connection with the use of roads for those purposes for the by-law to be so characterised. Tenuous connections will not make the by-law a by-law about the use of roads for announcements or soliciting.[4]
[4] Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397 at 413.
It is first necessary then to consider the subject matter of the power. There is no difficulty occasioned in these proceedings about the “use of roads” aspect of the power. The clauses “the broadcasting of announcements or advertisements” and “soliciting for religious or charitable purposes” require some consideration.
First, I observe that the word “broadcasting” is obviously not limited to broadcasting by electronic means. Broadcasting of that nature is regulated by Commonwealth legislation and s 239 of the 1999 Act is manifestly directed towards conduct and speech which is visible and audible by the users of city roads. In the context of s 239, broadcasting means making something known simultaneously to many road users. An announcement is a notification which calls attention to a recently occurring, existing or impending act or state of affairs. An advertisement is a species of announcement. In the context of city roads, the reason for conferral of the power by s 239 of the 1999 Act is obvious enough. It is intended to allow the regulation of merchants spruiking their wares and the equivalent forms of announcements made by others competing for the public’s attention, such as the preacher announcing an imminent sermon or the busker heralding the start of a show. It appears to me that the use of the word “announcement” necessarily draws a distinction between the notification and the thing announced.
A person may solicit, in the sense of seeking by earnest request, material donations or more intangible forms of support. However, in the context of s 239 of the 1999 Act, the conjunction of the words “religious” and “charitable” indicates to me that the power is limited to the collection of donations. This Court can take notice of the practice of large and well-regarded charities who organise collections on particular days. The benefit of booking such events so as to avoid charities competing on the same day and ground is, most likely, to be the mischief to which the power is addressed. There are no similar grounds or any other apparent reasons to confer a power to regulate persons seeking intangible forms of support.
I accept that restriction of the regulated conduct will prohibit some forms of announcements, and some activity which might be described as soliciting for religious and charitable purposes. In that sense, the direct legal operation of the by-law, at least in part, includes a prohibition which has a connection with the subject matter over which power is given by s 239 of the 1999 Act; it affects the rights and obligations of people to make some forms of announcements and to solicit in some ways.[5] However, because the regulated conduct extends so far beyond announcements and soliciting, a real question arises as to the sufficiency of the connection. In particular, the making of announcements and soliciting is but a small fraction of the activities which fall within the regulated conduct; and the announcements and soliciting which are regulated by the by-law are a very small proportion of the announcements made, and the soliciting which takes place, on municipal streets and roads. In my view, when assessed against its practical application, the connection between the by-law and its source power is remote and tenuous. Moreover, there is no apparent need to control all of the regulated conduct in order to effectively deal with the announcements and soliciting incidentally occurring in the course of that regulated conduct. If one were to apply the concept of proportionality to test the sufficiency of the connection, even though its application to questions of characterisation of this sort is controversial, one would be driven to the conclusion that the prohibition on preaching is disproportionate to the object of regulating the making of announcements or soliciting.
[5] Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 353; Cunliffe v Commonwealth (1994) 182 CLR 272 at 314; Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397 at 413; Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 187.
The next question which must be addressed is whether the by-law can be read down in the way contemplated by s 13 of the AIA so as to fall within the power conferred by s 239 of the 1999 Act. I am here addressing only the question of reading the by-law to fall within the ambit of that section. Even though that provision authorises the distributive reading down of an exercise of delegated authority to circumstances which fall within the applicable empowering provision, it must be possible to do so by reference to a rule of more limited application discernible in the statutory instrument itself.[6] There is no basis in the text of the by-law itself which allows a construction limited to announcements and soliciting occurring in the course of the regulated conduct. Nor is there any textual or contextual reason to think that the City of Adelaide intended the by-law to apply only to that part of the regulated conduct which was an announcement or soliciting in the event that the full scope of the regulated conduct was beyond power.
[6] ReDingjan;Ex parteWagner (1995) 183 CLR 323 at 340, 348-49, 355, 373.
For the above reasons, I would hold that the by-law is not a valid exercise of the power conferred by s 239 of the 1999 Act.
Licensing Power
The licensing power in s 667(1)3(LIV) of the 1934 Act can be quickly put to one side. Its place in s 667(1) of the 1934 Act appears under the heading “Uses and licences”. As the 1934 Act presently stands, the other placita authorise by-laws licensing and regulating vehicles plying for hire. The “Uses and licences” provisions of the 1934 Act and its predecessors once extended to many other commercial activities including hawking, operating petrol bowsers and running newspaper kiosks. The power conferred by placitum LIV was first enacted in 1903[7] and has, since then, always appeared at the end of the list of legislatively conferred licensing powers. The words “for regulating the form and conditions of any licence or permit” refer, in that context, to the management of permits and licences granted under by-laws made pursuant to the preceding powers.
[7] The Municipal Corporations Amendment Act 1903.
Prevention and Suppression of Nuisances
At common law a public nuisance is a nuisance which materially affects the reasonable comfort and convenience of a section of the public.[8] It is something more than mere inconvenience or discomfort. Even though a nuisance “covers a multitude of sins, great and small”,[9] not all discomfort is a public nuisance. Nuisances injurious to public comfort include such things as carrying on offensive trades, keeping noisy or malodorous animal compounds and causing a risk of public infections. Obstructions of public thoroughfares are also public nuisances.[10] It has been held that the word nuisance used in a by-law making power is limited to common law nuisances[11]. It is not clear why that should be so when a public nuisance can be enjoined by ordinary action if harm is caused and is a misdemeanour; a by-law prohibiting the same conduct would hardly seem necessary. The power probably extends to by-laws preventing and suppressing private nuisances which are as likely as public nuisances to be the source of disharmony between the residents of a city. Perhaps summary prosecution of a breach of a by-law was thought to be a more efficacious way of dealing with some private and public nuisances than the existing remedies. In Samuels v Hall,[12] Zelling AJ held that a by-law prohibiting the handing out of leaflets on the streets of Port Adelaide was not made for the suppression of a common law nuisance and therefore beyond power.[13] However, on appeal, Chamberlain J, with whom Walters J agreed, left open the question whether “nuisances” was used as a term of art or in its colloquial sense, holding that the power to make by-laws preventing nuisances extended to prohibiting conduct, which was not in itself a common law nuisance but which might lead to the commission of a common law nuisance.[14] In light of my construction of the convenience, comfort and safety power, it is unnecessary to consider the question further and I will proceed on the narrower view of the nuisance power taken by Zelling AJ.
[8] Attorney-General v P.Y.A. Quarries Ltd [1957] 2 QB 169 at 181; Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 at 196 per Denning LJ.
[9] Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 at 196 per Denning LJ.
[10] Barber v Penley [1893] 2 Ch 447; Bellamy v Wells (1890) 60 LJ Ch 156.
[11] Higgins v Egleson [1877] 3 VLR 196; Samuels v Hall [1969] SASR 296 at 304 Cf at 314 (Chamberlain J) at 320-21 (Mitchell J).
[12] Samuels v Hall [1969] SASR 296.
[13] Samuels v Hall [1969] SASR 296 at 304.
[14] Samuels v Hall [1969] SASR 296 at 314; Mitchell J contra at 322.
The regulated conduct is not, in itself, a public nuisance. Nor, in my view, can it be maintained as a general proposition that in contemporary Adelaide it is likely to result in a public nuisance. Whatever may have been the position in the social context in which Samuels v Hall[15] was decided in 1969, regulating the distribution of all written material is not now reasonably appropriate and adapted to the prevention of nuisances in the streets of Adelaide. The breadth of the innocent (non-nuisance) conduct regulated by the restriction of preaching and canvassing and the absence of any criterion of operation of the by-law which is directly related to nuisance, leaves those words without the statutory power. I acknowledge that a harangue might provoke a similarly strong response and that the ensuing exchange might attract a crowd. If that were to occur there is a risk that pedestrian traffic will be obstructed or that a breach of the peace might occur. However, I am persuaded that, in the context of prevailing standards of public behaviour, it is unreasonable to take the view that there is a sufficient risk of such consequences to render the regulation of all harangues a proportionate measure.
[15] Samuels v Hall [1969] SASR 296.
Accordingly, the restriction placed on the regulated conduct by the by-law cannot be supported by reference to the nuisance power.
Implementation Regulation 13 - Preventing Obstructions
Implementation Regulation 13 (Regulation 13) confers a power to make by-laws for preventing obstructions. In Samuels v Hall,[16] Zelling AJ was persuaded by the collocation of the words “streets, footways, water channels and water courses” that the equivalent by-law making power in the 1934 Act applied to physical and not human obstructions.[17] On appeal, Chamberlain J, with whom Walters J agreed, also doubted the applicability of that power to validate by-laws which regulated crowds. Mitchell J expressly agreed with Zelling AJ. I would construe the power conferred by Regulation 13 in the same way as Zelling AJ. The extinguishment of the power from the collection of specific powers in the 1934 Act and its reincarnation by regulation is not a reason to construe the terms of the regulation any differently. It is unlikely that the Governor intended to give a power to control crowds in the same regulation which authorises by-laws dealing with the blocking of water courses.
[16] Samuels v Hall [1969] SASR 296.
[17] Samuels v Hall [1969] SASR 296 at 305.
I should make it clear that I do not rely on a presumption that Regulation 13 was made with the intention that it should have the same meaning given to the equivalent provision in the 1934 Act. Even though s 18 of the AIA, which abrogates that common law rule of construction for statutes may not apply, on its terms, to regulations, it is preferable, in my view, not to assume any knowledge of earlier judicial constructions by those who make regulations.
Even if the regulation were construed to include obstructions caused by human gatherings, the by-law is not proportionate to that objective for essentially the same reasons that I have found that it is not a by-law for the prevention of nuisances.
Construction of the General “Convenience, Comfort and Safety” Power
Finally, the appellant relies on the apparently wide power in s 667(1)9(XVI) of the 1934 Act to make by-laws for the “good rule and government of the area, and for the convenience, comfort and safety of its inhabitants”. The controversy over the proper construction and application of analogous local government legislation in England and Australia spans three centuries. In England, where the wide power was, historically, supplemented by several more specific powers, challenges to the validity of by-laws were generally made on the ground of “unreasonableness”. In Australia, the colonial, and then State, legislatures added extensive lists of specific powers to the generally expressed conferral of power in the English legislation. The legislative conferral of additional specific powers raises an issue, anterior to the question of reasonableness, whether, as a matter of construction, the specific powers derogate from the otherwise wide terms of the more general grant. It is to that issue which I first turn.
In England, legislative power was delegated to municipal corporations in general terms by the Municipal Corporations Act 1835 (UK) 5 and 6 Will 4, 76 s 90 which provided “[t]hat it shall be lawful for the Council of any Borough to make such Bye Laws as to them shall seem meet for the good Rule and Government of the Borough, and for Prevention and Suppression of all such Nuisances as are not already punishable in a summary Manner by virtue of any Act in force throughout such Borough”. The Municipal Corporations Act 1882 (UK) contained a similarly expressed by-law making power.
In South Australia, the Municipal Corporation for the City of Adelaide (the Corporation) was established by an Ordinance of the Governor in 1840.[18] In 1846, the Corporation was dissolved and its property was vested in the Crown. In 1849, the Municipal Corporation for the City of Adelaide was again re-established by ordinance.[19]
[18] Ordinance No 4 of 1840.
[19] Ordinance No 11 of 1849.
In 1861, after the establishment of responsible government, the earlier ordinances were repealed by the enactment of the Municipal Corporations Act 1861. I will refer to the Municipal Corporations Act 1861 as “the 1861 Act” and to subsequent Acts of the same name by reference to the year of its enactment. The 1861 Act established and applied to the City of Adelaide and empowered the Governor to apply the terms of the 1861 Act to other incorporated towns. The 1861 Act was a long and detailed statute by comparison to other legislation of its time. The constitution of the City of Adelaide, the machinery for the election of councils and the procedure governing council meetings were carefully prescribed. It included detailed legislative regulation of public sanitation, health and fire safety. The 1861 Act gave the City of Adelaide powers to conduct and oversee public works and to make detailed provisions for private and public buildings and other works.
By s 146 of the 1861 Act, the City of Adelaide was empowered to make by-laws “for” a number of specified purposes. The first of those purposes related to the internal organisation and functioning of the Corporation. There next followed a power to make “all such by-laws as to them shall seem meet for the good rule and government of the city, and for the prevention and suppression of nuisances therein, and such further and other by-laws as may from time to time be deemed necessary to these ends”. I will refer to the first part of this provision, and similar provisions, as the “good rule and government” provision and the second part as the nuisance power. Immediately following that grant of power, an additional power was given to make “all such by-laws as are specified in the Schedule hereto marked K”. Schedule K was entitled “Schedule of By-laws by this Act authorized to be made …”. The purposes “for” which by-laws could be made were generally introduced by phrases like “for the general management”, “for the regulation”, “for prohibiting”, “for requiring”, and “for the maintenance of”. The long list of subject matters ranged from paths and traffic, markets and weights and measures. From time to time after 1861, even more purposes were added to Sch K by amending legislation.
The specification of a large number of by-law making powers in the 1861 Act appears to have been a South Australian innovation.[20] It contrasted with the District Councils Act 1858 which gave a relatively limited power to District Councils to make by-laws. Section 122 of the District Councils Act 1858 limited the by-law making power to: regulating the conduct of officers of the District Council, levying rates and the expenditure of funds, regulating and licensing the use of local natural resources, slaughter houses, weights and measures and the prevention and suppression of nuisances. Even though there was an incidental power to make by-laws for “more effectually carrying out all and every the powers and authorities herein given to District Councils”, no good rule and government power was conferred.[21]
[20] As appears in footnote 60 below, the Victorian local government legislation specified very few matters in addition to the general by-law making power. In 1863, the Victorian by-law making power was limited to matters of internal corporate organisation. Victoria did not adopt the South Australian approach until 1869.
[21] In 1876, even after the enactment of the Municipal Corporations Act 1861, the District Councils Act of that year retained the limited by-law making power of its predecessor. Eventually, the District Councils Act 1887 adopted a truncated form of the powers conferred by the Municipal Corporations Act of 1861 and 1880, together with a wider power to make by-laws for the good rule and government and the comfort, convenience and safety of inhabitants. In England, it was not until 1888 that responsibility for the administration of counties and county boroughs was transferred from justices in quarter sessions to elected councils constituted under statute. W.R. Cornish, Law and Society in England 1750-1950, 112-113.
The parliamentary debates on the introduction of the Municipal Corporations Bill 1861 (the Bill) provide some insight into the purpose of its enactment. First it appears that the legislation was drafted by a private legal practitioner at the expense of the City of Adelaide and introduced as a private member’s bill by one of the members of the parliamentary electorate comprising the City of Adelaide. Both the length of the Bill and the extent of the legislative powers sought by the City of Adelaide generated some derision of the City’s legislative ambitions. The Honourable Sir Richard Hanson[22] expressed a preference for much more “economical legislation” along the lines of the then District Councils Act 1858. Notwithstanding the extensive debate over the Bill, it was eventually passed with little change to the provisions authorising the making of by-laws.
[22] The Honourable Sir Richard Hanson served as Premier of South Australia from 1857 to 1860 and was later appointed Chief Justice of this Court in 1861.
It is, I think, unlikely that the enactment of the many by-law making powers in the 1861 Act, and its successors, was intended to limit the powers of the City of Adelaide. Rather, the purpose appears to have been to provide expressly for the regulation of the new emerging needs of modern urban communities. The rapid urbanisation of England during the 19th century brought with it a recognition of the importance of town planning and public health measures.[23] It is likely that colonists brought that awareness with them and that it informed the interventionist approach to urban management manifest in the 1861 Act.
[23] Kenneth O. Morgan (ed), The Oxford History of Britain (Oxford University Press, 1999) 499-504, 529-531.
The very structure of the 1861 Act also suggests that the grant of the specific powers to make by-laws on the topics listed in Sch K was meant to augment the general grant of power in s 146. In my view, the expansive list of specific powers was probably intended to remove any doubt about the power of municipal corporations to undertake the extensive regulation thought necessary for the advancement of the colony’s urban communities. As I have already mentioned, the parliamentary debates disclose some surprise, and hostility, as to the Council’s ambitious program. It may well be that the extensive and detailed clauses of Sch K were drawn up in anticipation of a similar reaction from the Supreme Court if the anticipated by-laws were supported only by the good rule and government powers. I refer below to the then prevailing judicial approach to prerogative review of the “reasonableness” of by-laws; a restrictive view of the power of municipalities was taken and there was a readiness to intervene. Nonetheless, the addition of many enumerated powers has occasioned significant judicial consternation in attempting to give meaning to both the specific, and general grants of power.
The 1861 Act balanced the extensive legislative power it delegated to municipal corporations with procedural restraints and parliamentary overview. The 1861 Act required a quorum of two-thirds of the Council of the Corporation to make a by-law.[24] To be effective, the by-law had to be confirmed by the Governor after it was laid before the Parliament and published in the Gazette.[25] The 1861 Act also provided that no by-law shall be repugnant to the general spirit and intendment of the laws in force in South Australia.[26] These checks on municipal power were retained by s 243 of the 1880 Act, and s 316 of the 1890 Act.
[24] Municipal Corporations Act 1861, s 147.
[25] Municipal Corporations Act 1861, s 147.
[26] Municipal Corporations Act 1861, s 147.
The 1861 Act was repealed and replaced by the Municipal Corporations Act 1880 (No 190 of 1880). The 1880 Act applied on its own terms to all existing municipal corporations and to corporations which might subsequently be proclaimed, but made some additional provisions exclusively for the City of Adelaide.
Section 242 of the 1880 Act empowered Councils to make by-laws for any of a great number of purposes, which had been located in Sch K, but were now listed in the body of that section.[27] Following the last of the alphabetically arranged subject matters, “weights and measures”, s 242 of the 1880 Act continued:
And generally for more effectually regulating, observing, and carrying out all and every powers and authorities by this Act given to Corporations, and for the good rule and government of the municipality – for the convenience, comfort, and safety of the inhabitants thereof – and for the prevention and suppression of nuisances therein.
(Underlining added.)
[27] In addition, s 239 of the 1880 Act enacted a schedule of offences of a type that might equally have been created under the by-law making powers.
Again, it is my view that the arrangement of the section is not indicative of an intention to limit the powers of the Corporations, but to expand them. The opening words “And generally” in my opinion suggests a grant of power in addition to the preceding powers and which, in contrast to the earlier powers, is granted “generally”. The general grant of by-law making power is given in three parts and is an expansion of the earlier good rule and government provision. The first part recasts the good rule and government provision as an incidental power enabling the corporations to make by-laws for the effective execution and administration of by-laws made pursuant to other powers. The second part, “for the convenience, comfort and safety of the inhabitants”, had no earlier counterpart in South Australian legislation nor in the English legislation of the 19th century. It appears to be an elaboration of the matters which the legislature considered to be of general municipal concern. In my view, it authorises by-laws which promote the three stated objects in the municipal life of a corporation’s inhabitants. I will refer to the power to make by-laws for the convenience, comfort and safety of inhabitants as “the convenience power”.
There is, I acknowledge, a large degree of overlap between the convenience power and the final power of the trilogy to make by-laws “for the prevention and suppression of nuisances” which had long been included in by-law making provisions. Nonetheless, it seems to me that the purpose of the repetition is to ensure an amplitude of power and not a reduction of it. In my view, the nuisance power serves as an analogy for the matters which may be regulated pursuant to the convenience power. The convenience power does not extend municipal control over conduct which causes no more than minor inconvenience or discomfort. The inconvenience, discomfort and public risk, the elimination of which may be the object of a by-law, will, if the words are to have any work to do, amount to something less than a nuisance. However, the disturbance to urban life must, I think, approach the level of the recognised categories of nuisance. The conferral of the power recognises that the eventual extension of the categories of nuisance by the common law might not sufficiently meet the more rapidly emerging problems of modern cities. So understood, the convenience power serves to complement the nuisance power with which it has been long associated in South Australian legislation. It allows that nuisance might be given its common law meaning but ensures that municipal corporations are in a position to take prophylactic measures with respect to like threats to public convenience and safety arising out of modern conditions.
There may be a further reason for the retention of the nuisance power in the 1880 Act, notwithstanding the apparently wide terms of the convenience power. It can be accepted that most common law nuisances will affect the corporeal comfort, convenience and safety of the inhabitants of a municipality. However, arguably, some, at least, of the range of immoral activities, which were at the time characterised as public nuisances,[28] might not impair the temporal convenience, comfort and safety of the city’s inhabitants. It might have been thought necessary to retain the nuisance power to ensure that those immoral activities were liable to municipal control in the interests of the spiritual welfare of the inhabitants of a municipality.
[28] For example, publishing obscene books or libels, keeping bawdy houses. Archbold (31st ed, Fitzwalter, Butler and Garsia) Archbold’s Pleading, Evidence & Practice, London, 1943 [1327-1340].
On the relationship between the specific powers and the convenience power, it is, I think, important to observe that many other specific provisions of the 1880 Act are also manifestly repetitions of the power to prevent and suppress nuisances. The specific by-law making powers in s 242 of the 1880 Act included powers for the prevention of contagious disease, the restriction of noisome and offensive trades and the regulation of many other matters which were clearly common law nuisances. Indeed, a specific power to “prevent and suppress all nuisances whatsoever, whether specified in this Act or not” preceded the final placitum. Similar repetition can be found in s 314 of the 1890 Act and s 504 of the 1923 Act. The 1934 Act eliminated much, but not all, of that repetition. The point I wish to make is that it is unlikely that the powers to deal with specific nuisances was intended to restrict the general nuisance power. If that is so, it is not obvious to me why the enactment of specific powers, in itself, must be taken to reduce the scope of the convenience power.
Perhaps, more importantly, the concatenation of the three purposes in the final placitum suggests an intention to confer a plenary power to regulate the competing interests of the residents of urban communities who must live and work at close quarters.
In 1888 the South Australian legislature enacted the By-laws Enabling Act 1888. The purpose of that Act was to allow councils to adopt model by-laws made by the Governor by proclamation and published in the Government Gazette without complying with the notice provisions which were essential preconditions to the making of by-laws in the Municipal Corporations Act 1880 and the District Councils Act 1887. The Act was particularly designed to assist smaller regional councils with the administrative burden of making by-laws.[29]
[29] South Australia, Parliamentary Debates, House of Assembly, 26 June 1888, 123 (Attorney-General, Kingston.
The 1890 Act did not effect any significant change to the form of the 1880 Act. It retained the good rule and government, convenience and nuisance powers in a single placitum taking largely the same form as the 1880 Act.
The Municipal Corporations Amendment Act 1903 (the 1903 Amending Act) added to the list of specific purposes for which the municipal corporations could make by-laws pursuant to the 1890 Act. One of those powers was to make by-laws for compelling the branding of packages, the provision by householders of proper receptacles for rubbish and the making of verandas and balconies water tight. A by-law purportedly made pursuant to that power was later considered in Groom v The Corporation of the City of Port Adelaide.[30]The 1903 Amending Act also extended the by-law making power of municipal corporations to the licensing of ice cream carts, boot blacks, dairy and fish vendors, restaurants and motor vehicles plying for hire. It was that Act which, for the first time, conferred the general facilitative power in question in these proceedings to regulate the form and conditions of those licenses. In my view, the additional powers conferred by the 1903 Amending Act also manifest a concern to ensure that municipal corporations were armed with the necessary powers to control the new ways in which food and other services were delivered to city residents.
[30] Groom v The Corporation of the City of Port Adelaide (1922) 31 CLR 109.
Section 24 of the 1903 Amending Act also bestowed on municipal corporations a catch-all power to make “by-laws for any purpose not mentioned in this Act”. The debate for the 1903 Amendment Bill (the Amending Bill) confirms that the rationale of s 24 was to enable municipal corporations to keep up with the changing conditions of municipal life. [31] The enactment of this catch-all power, simultaneously with the making of further specific grants, to my mind strongly suggests a parliamentary intention to confer wide ranging powers on municipal corporations. In the course of debate over the amendment, the desirability of maintaining the procedural requirements for laying by-laws before the Parliament and proclamation by the Governor was affirmed as a check on the proper exercise of those powers.
[31] South Australia, Parliamentary Debates, House of Assembly, 4 August 1903, 165 (Chief Secretary).
Interestingly, given the terms of the impugned by-law in this case, the Amending Bill included a power to make by-laws for the purposes of regulating preaching, singing or hooraying in city streets. That by-law making power was to be included in a part which included powers to make by-laws for the purposes of regulating or prohibiting the flying of flags and public displays such as magic lantern exhibitions and cinematography. The subclause of the Amending Bill which empowered by-laws regulating preaching, singing and hooraying was not passed. Mr Price, a Member of the House of Assembly, successfully argued against it, saying that he did not see why:
“… people should be prohibited from preaching, singing, or haranguing in the streets. If a man proved himself a nuisance in the street he should be removed by the police. The Salvation Army, for instance, did good work, and why should they be kept out of the streets?”
I discussed in [163] above the alternative ways in which cl 2.3 might be drawn to fall within power: the express exclusion of all governmental and political communication or by limiting it to conduct which threatens public order. In the absence of a textual demarcation which allows a reading down in one of those ways, the by-law could only be saved if this Court were to make a legislative choice between those alternatives.
Moreover, the regime imposed by cl 2.3 would necessarily operate differently on those persons to whom it would still apply, or at least produce very different results, if those who engaged in political communication were exempt from it. Even though it might have been possible to exclude written material which contained a political communication from the scope of cl 2.8, it is this latter consideration which stands in the way of reading cl 2.8 down in that way. It follows that the by-law cannot be read down other than to draw a line through the words “preach”, “harangue” and “canvass”.
I observe, as a matter of completeness, that the same result is reached if one were to start with a construction of the convenience power conferred by the 1934 Act. That power can, in my view, be read as conferring a power to make by-laws only to the extent that the State is constitutionally permitted to do so. Even though the power is conferred without express limitation by reference to the implied freedom of political communication, or any other constitutional limitation, it must and can be so limited and need not be struck down in its entirety. No legislative choice is here involved. The limitation is inherent; the State cannot delegate more power than it has. The Parliaments operating under the terms of the Constitution must be taken to intend that the delegation of their legislative power is subject to the constitutional limitations under which they operate. Accordingly, the critical question would again become whether the by-law was consistent with the constitutional protection of political communication by which the conferral of the by-law making power was limited, and, if not, whether the by-law could be read down to fall within that grant of power.
Conclusion
I would hold that cl 2.3 must be read down by striking out the words “preach”, “canvass” and “harangue”. Clause 2.8 must be struck out in its entirety. I would dismiss the appeal.
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