A-G (SA) v Corporation of the City of Adelaide [2013] HCA 3 - Implied Freedom of Speech

Today a majority of the High Court allowed an appeal against a decision of the Full Court of the Supreme Court of South Australia, which had held that a by-law made by the Adelaide City Council infringed the implied constitutional freedom of communication on government and political matters in the case of Attorney-General for the State of South Australia v Corporation of the City of Adelaide & Ors [2013] HCA 3.

The Facts

The provisions in question of the by-law of the City of Adelaide prohibited persons from preaching or distributing printed matter on any road to any bystander or passer-by without permission.

The second and third respondents, Caleb and Samuel Corneloup, were members of an association, "Street Church".  They wished to preach in the streets of the City of Adelaide.

The Original Decision

The Corneloups each commenced proceedings in the District Court of South Australia, seeking a declaration that the provisions of the by-law made by the City of Adelaide were invalid. The District Court declared that parts of the provisions of the by-laws exceeded the by-law making powers conferred on the Council by the Local Government Act 1934 (SA) and the Local Government Act 1999 (SA).

A further appeal to the Full Court of the Supreme Court of South Australia dismissed the appeal from the District Court's decision. Although the Full Court held that the provisions of the by-laws were not invalid for want of compliance with the specified local government acts, the Full Court held that they infringed the implied constitutional freedom of communication on government and political matters and were therefore invalid.

Both respondents commenced an appeal to the High Court with special permission.

The High Court Decision

A majority of the High Court held that the Local Government Acts in South Australia empowered the Council to make the provisions and that they were a valid exercise of the Council's statutory power to make by-laws for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants.

Furthermore, the provisions served a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and therefore did not infringe implied constitutional freedoms.

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