The second and third respondents were prosecuted in the Magistrates Court of South Australia after they preached and canvassed in Rundle Mall in 2009 without permission, in breach of clauses 2.3 and 2.8 of a by-law made by the first respondent (Adelaide).
Those clauses read as follows:
2. No person shall without permission on any road: - ...
2.3 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 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 second and third respondents, who are members of a religious organisation called “Street Church”, brought proceedings in the District Court seeking a declaration that the clauses were invalid. Judge Stretton declared the first three words of cl 2.3, “preach, canvass, harangue”, and all of cl 2.8 to be beyond Adelaide’s by-law making powers, but that the by law could be saved by severing them.
Adelaide’s appeal to the Supreme Court (Doyle CJ, White and Kourakis JJ) was dismissed. The Full Court held that the by-law was made “for the convenience, comfort and safety” of the inhabitants of the City of Adelaide as authorised by s 667(1)9(XVI) of the Local Government Act 1934 (SA). It was not persuaded that the by-law, in its application to the regulated conduct, was such an unreasonable or disproportionate measure that it fell outside the legislative authority conferred by those words. It was not 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.
However, the Court went on to find that the by-law was inconsistent with the implied constitutional freedom of political communication. It considered that an obligation to obtain permission to speak on political matters was incompatible with the system of democratic and responsible government established under the Constitution. Even though the by-law was reasonably appropriate and adapted to the convenience, comfort and safety of the inhabitants Adelaide, it secured that objective in terms which were calculated to restrict impermissibly public speech on political and governmental matters.
The applicant has given s 78b Notices. Adelaide supports the grant of special leave. The second respondent is unrepresented. The third respondent has not filed an appearance or a summary of argument.
The questions of law said to justify a grant of special leave include:
Is a permit system that enables a local council to balance the competing interests of various road users within a municipality, including those who seek to use roads for the purpose of political communication, reasonably appropriate and adapted to promoting the convenience of road users, such that it does not offend the implied freedom of political communication?
To what extent, if any, should the validity of a by-law be judged by reference to the possibility that it may be erroneously administered?