Yesterday, I briefly outlined two decisions handed down by the High Court, which both had implications for freedom of expression. Today, I’ve written further analysis of one of those cases: Attorney-General (SA) v Adelaide City Corporation.
The case involved Caleb and Samuel Corneloup, who often preached in Adelaide’s Rundle Mall without the permission of the Adelaide City Council. The Corneloups were accused of breaching a city by-law and were fined by the council. The relevant provisions of the by-law read:
Activities Requiring Permission
No person shall without permission on any road:
2.3 Preaching and Canvassing
preach, canvass, harangue, tout for business or conduct any survey or opinion poll…
give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter…
A lower court found the law to be invalid for breaching an implied right to freedom of political communication and the council appealed to the High Court. The High Court overruled the original decision and held that the law was constitutionally valid. The Corneloups are therefore liable to pay the fine.
It’s worth nothing that there are a multitude of laws that regulate what might broadly be labelled unpleasant conduct. Politicians continually forget that there were laws that existed before they got into office. The result is often layer upon layer of new laws that cover remarkably similar conduct. These include violent threats, stalking and a range of other offences relating to intimidation.
However, it’s very unlikely that the Corneloups could have been found to have breached any of these laws. Even nuisance, which sets quite a low threshold for unacceptable conduct would not have caught the Corneloups’ conduct. As Heydon J stated:
Merely to preach, canvass or harangue on a road is not to commit a public nuisance. Nor is merely distributing printed material to bystanders or passers-by on a road.
In other words, the law in this case sets an extraordinarily low bar. The fact that it caught people merely advocating a religious message in a public place is in itself evidence of that. And just as this conduct would not be enough to be considered a common law nuisance, nor should conduct of this kind ever be made unlawful if we are serious about protecting free speech.
Gagging someone just because they’re annoying is surely not the sign of a society that values freedom of expression.
You can also read my colleague, Chris Berg’s, further analysis of the other case handed down by the High Court yesterday – the Man Monis case – here.