South Australian Court upholds Constitutional validity of council by-law

The Magistrate’s Court of South Australia (the Court) has rejected a Constitutional challenge to the validity of a by-law restricting religious preaching in Rundle Mall.  In Adelaide City Council v Farnden & Ors, the Court held that the Adelaide City Council had the power to make a by-law restricting preaching in the Mall, and had validly exercised that power in making the challenged by-law, because the by-law was an appropriate response to achieve a legitimate end, in regulating the orderly use of roads.

Many councils have similar by-laws to the one challenged in this case, so the decision in Adelaide City Council v Farnden & Ors has significant implications for local government authorities.  The decision protects the scope of all councils’ power to make by-laws.

The preachers and the Council

The Adelaide City Council (the Council) has had trouble with various people preaching in Rundle Mall without Council permission.  Their preaching has caused difficulties and discomfort for Mall users and retailers. 

The Council’s by-laws include By-law No. 4 – Roads (the by-law), which makes it an offence to preach or canvass on a road without the Council’s permission. 

The Council initially attempted to resolve its concerns about unauthorised preaching in the Mall through conciliation.  The Council’s efforts proved unsuccessful.

In February 2009, officers of the Council observed four people preaching in the Mall.  The Council issued expiation notices to the four, alleging that they had breached the by-law by preaching in the Mall without the Council’s permission. 

The four preachers elected to be prosecuted, and the matter was heard by Magistrate Tracey in the Adelaide Magistrates Court, in the second half of 2009.  Norman Waterhouse represented the Council in the prosecution of all four defendants.

The defendants’ case

Before the Court, the defendants admitted that they regularly preached on religious topics in Rundle Mall.

However, they asserted that they discussed topics such as ‘homosexuality, abortion, same sex marriage, teenage binge drinking, the detrimental effects of the internet and their opposition to evolution forming part of a national school curriculum’.  The key element of their defence was to challenge the Constitutional validity of the by-law, arguing that it conflicted with the freedom of political communication, implied by the Commonwealth Constitution (the Constitution).  In essence, they claimed that the Constitution guaranteed their right to talk about political matters on public roads, and as the material they discussed was political in nature, the Constitution invalidated the by-law because the by-law restricted that right.

The defendants’ challenge to the validity of the by-law was the critical issue in all four prosecutions because of the factual admissions made by the defendants.  If the by-law was valid, the charges would be upheld and they would be convicted.  If the by-law was invalid, the charges against them would fail, not having been based on a valid law.

In addition to its importance to the defendants’ case, the question resolved by the Court in this case is also critical for local government generally.  The power of all councils to regulate activities on roads would be greatly reduced if this by-law had been found invalid.  The challenge posed a real threat to the power of councils to make comprehensive by-laws about activities on roads. 

Freedom of political communication

Magistrate Tracey confirmed that the Constitution implied a freedom from restriction of political communication.  She confirmed that the freedom limits the power of law-making bodies to pass laws that unreasonably limit political communication.  Further, a by-law does not have to expressly mention politics in order to restrict political communication; it will be invalid if it unreasonably restricts such communication ‘in its effect’.

The Magistrate confirmed that a two-part test applies when determining whether a law, or by-law, is invalid.

1. Firstly, does the law effectively burden political communication? 
2. Secondly, if it does, is the law reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the system of representative and responsible government prescribed in the Constitution?

If the answer to the first question is yes, and the answer to the second question is no, then the law or by-law is invalid.

On the first question, Magistrate Tracey held that the by-law does effectively burden political communication. She considered that religious communication was likely to also be political in nature.

However, on the second question, the Magistrate found that the by-law was appropriate and adapted to serve a legitimate end.  She found that the by-law was designed to allow the orderly use of roads within the Council, and it effectively balanced a number of competing public interests, including those of retail tenants, who may be concerned about the effects of preaching on ease of access to, and the appeal of, their businesses. 

Religious freedom

The defendants also argued that the Council did not have the power to pass a by-law that infringed their religious freedoms, according to section 116 of the Constitution, which relevantly provides (in part) that ‘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…’.  The Magistrate confirmed that section 116 applies only to the Commonwealth Parliament, and not to State Parliaments.  Accordingly, there is no restriction on the State’s, and therefore councils’, power to legislate on religious matters.

The outcome

The defendants were convicted on all charges laid against them.  They were fined and ordered to pay the Council’s costs.

The decision of the Magistrate establishes the by-law’s validity.  The decision also sets an important precedent that could support the validity of other similar by-laws, and preserves the scope of councils’ by-law making powers.  The decision provides some certainty for councils when drafting, or applying, similar by-laws to the one challenged in this case, and it provides guidance to the entire local government sector.

For further information on any of the material contained in this Briefly please contact Paul Kelly on 8210 1248 or by email pkelly@normans.com.au.

If you find the information in this article useful, please feel free to forward it to someone at your council.

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