FRENCH CJ.
Introduction
Caleb Corneloup, the second respondent, is the President of an incorporated association known as "Street Church". Samuel Corneloup, the third respondent, describes himself as an "expositor of the Gospel". Each has preached his religious beliefs and associated political beliefs in the City of Adelaide ("the City"). Each has done so without permission from the Corporation of the City of Adelaide ("the Council"), which was required by By‑law No 4, entitled "Roads". The third respondent was convicted in the Magistrates Court of South Australia on 27 July 2010 and fined $250. His appeal against that conviction is pending in the Supreme Court of South Australia. The second and third respondents, Street Church and a number of other persons are the defendants to an injunction proceeding commenced by the Council in the Supreme Court. The Council sought to restrain those defendants from preaching, canvassing, haranguing or distributing printed material within the area of the City, unless they held a permit to do so as required by pars 2.3 and 2.8 of By-law No 4. The injunction proceeding has also been adjourned, pending the outcome of the proceeding before this Court.
On 2 November 2009 and 28 July 2010 respectively, the third respondent and the second respondent filed applications in the Administrative and Disciplinary Division of the District Court of South Australia seeking declaratory relief. In the District Court they argued that pars 2.3 and 2.8 of By-law No 4 were invalid as they were outside the by-law making power conferred by the Local Government Act 1999 (SA) ("the 1999 Act"). They further argued that the paragraphs were invalid because they infringed the freedom of political communication implied from the Constitution of the Commonwealth of Australia.
His Honour Judge Stretton found that those parts of par 2.3 of By-law No 4 which prohibited haranguing, canvassing and preaching on a road without a permit, and the whole of par 2.8, which prohibited distribution of literature, were beyond the by-law making power conferred by s 239 of the 1999 Act and s 667 of the Local Government Act 1934 (SA) ("the 1934 Act"). His Honour found it unnecessary to determine whether, if they were otherwise within power, the provisions of By-law No 4 infringed the implied freedom of political communication. He made declarations of invalidity.
The Council appealed to the Full Court of the Supreme Court. The appeal was dismissed. Kourakis J, who wrote the judgment of the Court, with which Doyle CJ and White J agreed, held that the impugned provisions were a valid exercise of the power conferred by s 667(1)(9)(XVI) of the 1934 Act to make laws "for the convenience, comfort and safety" of the inhabitants of the City. However, his Honour went on to hold that par 2.3, by prohibiting preaching, canvassing and haranguing on a road without a permit, infringed the implied freedom of political communication, as did the whole of par 2.8, and that the appeal should be dismissed.
On 11 May 2012, this Court granted the Attorney-General for the State of South Australia, who had been a respondent to the proceedings in the Full Court, special leave to appeal against the judgment of the Full Court. For the reasons that follow the appeal should be allowed.
The proceedings in the District Court
The jurisdiction of the District Court to hear the applications brought by the second and third respondents derived from s 276 of the 1999 Act. That section creates a "Special jurisdiction" defined by reference to classes of proceedings which "may be taken before, and determined by, the District Court". They include "proceedings to try the validity of a by-law". The District Court has power in such proceedings to make an order "declaring a by‑law to be invalid". Such proceedings may be brought by any person "with a material interest in the matter." The second and third respondents commenced their proceedings on the basis that each of them had "a material interest in the matter". Their standing was not in issue in this appeal.
The challenge to the validity of pars 2.3 and 2.8 of By-law No 4 was based in part upon their alleged infringement of the freedom of political communication implied in the Constitution. The District Court was therefore exercising federal jurisdiction in a matter arising under the Constitution or involving its interpretation. That federal jurisdiction is conferred by s 39(2) of the Judiciary Act 1903 (Cth) as jurisdiction in a matter in which the High Court has jurisdiction, or can have jurisdiction conferred upon it pursuant to s 76 of the Constitution.
The declaration made by the District Court was in the following terms:
"1. The words 'preaching', 'canvassing' and 'haranguing' in paragraph 2.3 of 'By-law No 4 - Roads' of the Corporation of the City of Adelaide are declared to be invalid and are severed from the By‑law.
2. Paragraph 2.8 of 'By-law No 4 - Roads' of the Corporation of the City of Adelaide is declared to be invalid and is severed from the By-law."
The form of the declaration, which was left in place by the order of the Full Court dismissing the appeal from the District Court, leaves something to be desired. Individual words of a by-law have no legal operation and are not amenable to declarations of invalidity. Severance is not an act of remedial amputation carried out by the court. It is the application of a constructional rule. The rule derived originally from the common law. It is now reflected in statutory provisions such as s 13 of the Acts Interpretation Act 1915 (SA), which applies to delegated legislation in South Australia. The effect of the declaration made by the District Court was clear enough and no point was taken about its form. It is necessary now to refer to the provisions of the 1934 and 1999 Acts relevant to the by-law making powers of the Council.
The statutory framework - the 1934 and 1999 Acts
This appeal is concerned with the validity of a by-law made by the Council. The term "by-law" is not defined in either the 1934 Act or the 1999 Act. Lord Russell of Killowen CJ in Kruse v Johnson described a by-law as:
"an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non-observance."
Today the term is used to describe delegated legislation by bodies having limited geographical jurisdiction and is "the expression most commonly used for the primary legislative instruments made by local government authorities."
The 1999 Act operates concurrently with provisions of its predecessor, the 1934 Act, which continue in force. When the 1999 Act was enacted, significant portions of the 1934 Act were repealed by the Local Government (Implementation) Act 1999 (SA) ("the Implementation Act"). Some elements of s 667 of the 1934 Act survived. Today, the section confers by-law making powers on councils for a number of specific purposes. Relevantly to the present appeal, sub-s (1) provided:
"Subject to this Act, a council may make by-laws for all or any of the following purposes:
...
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."
That is a combination of powers which has a mixed ancestry in the United Kingdom and colonial Australia, stretching back to the first half of the 19th century.
The Implementation Act also inserted a new section 668 into the 1934 Act. Section 668 provides that:
"The Local Government Act 1999 applies to and in relation to by-laws made under this Act as if they were by-laws made under that Act."
The Governor was empowered by the Implementation Act to repeal additional provisions of the 1934 Act, and that Act in its entirety, by proclamation and to confer new by-law making powers on local governments. There has been no exercise of these powers relevant to this appeal.
As enacted, the 1934 Act contained extensive provisions in relation to "Streets, Roads, and Public Places". They have mostly been repealed save for s 359 which authorises the council, by resolution, to exclude vehicles generally or vehicles of a particular class from a particular street, road or public place.
Part 2 of Ch 11 of the 1999 Act is entitled "Roads". The term "road" is defined as:
"a public or private street, road or thoroughfare to which public access is available on a continuous or substantially continuous basis to vehicles or pedestrians or both and includes -
(a) a bridge, viaduct or subway; or
(b) an alley, laneway or walkway".
All public roads in the area of a council are vested in the council in fee simple under the Real Property Act 1886 (SA). The 1999 Act prohibits the use of public roads for business purposes unless authorised by a permit. There is provision for the regulation of moveable signs on roads, the planting of vegetation and the depositing of rubbish or goods or any other substance on roads or in public places. The provisions of both the 1934 Act and the 1999 Act support the proposition that the regulation of activities on and adjacent to roads and public places within a council area falls within the accepted responsibilities of local government in South Australia.
Express power to make by-laws about the use of roads is found in s 239(1) of the 1999 Act. The by-laws made under that sub-section may be about the use of roads for a number of specific purposes including:
"(d) soliciting for religious or charitable purposes; or
...
(g) any other use in relation to which the making of by-laws is authorised by regulation."
Section 239(2) of the 1999 Act provides that:
"Subject to this Act, a by-law made under subsection (1) can regulate, restrict or prohibit the use of which it relates."
Section 246(1)(a) of the 1999 Act provides that subject to that "or another Act" the council may make by-laws that "are within the contemplation of this or another Act". Section 246(2) provides that the council cannot make a by-law 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." However, s 246(3) provides that subject to the 1999 Act, or another Act, a by-law made by the council may:
"(a) operate subject to specified conditions; and
...
(c) be of general or limited application, and provide for exemptions".
The second respondent, by a notice of contention, asserted that By-law No 4 infringed s 246(2) because the requirement for a "permission" constituted a requirement for a "licence" within the meaning of s 246(2). Absent any express power to license the activities otherwise prohibited by By-law No 4, By‑law No 4 was beyond power. That submission should not be accepted.
As Kourakis J observed, s 246(2) has to be read with s 246(3) so that the latter provision has work to do. The ordinary English meaning of the word "licence" extends to a "formal permission" and "exemption". However, if extended to permissions and exemptions in this statutory context it would be inconsistent with s 246(3). As Kourakis J said, s 246(2) in its legislative and historical context is directed to controlling the powers of local governments to license business or like activities in particular places. Provision for that kind of licensing was made in the 1934 Act. As enacted, that Act conferred power on local governments to license a variety of activities, including "noisy trades" (such as wood-cutting and boiler-making), horse bazaars and cattle markets, chimney-sweeps, ice cream carts and newsvendors. The second respondent's contention that By-law No 4 infringed the limitation on the by-law making power imposed by s 246(2) should be rejected.
The third respondent invoked in his amended notice of contention s 248(1) of the 1999 Act which provides:
"A by-law made by a council must not -
(a) exceed the power conferred by the Act under which the by-law purports to be made".
That aspect of his notice of contention can also be dealt with immediately.
The third respondent argued that compliance with s 248(1)(a) conditions the validity of any by-law. He pointed out, as is the fact, that By-law No 4, as gazetted, purported to be made under the 1999 Act. He submitted that the only by-law making powers conferred by that Act are those in ss 238-240. The appellant did not contend that they were capable of supporting By-law No 4. He relied upon s 667(1)(9)(XVI) of the 1934 Act. The third respondent submitted that as By-law No 4 was not authorised by ss 238-240 it was not supported by any source of power within the 1999 Act. The answer to that submission is found in s 246(1)(a) of the 1999 Act which confers on the Council power to make by-laws that are "within the contemplation of this or another Act" (emphasis added). Assuming that By-law No 4 was able to be authorised by s 667(1)(9)(XVI) of the 1934 Act, the power conferred by that provision was, within the meaning of s 246(1)(a), a power to make by-laws "that are within the contemplation of ... another Act". The third respondent's contention in reliance upon s 248(1) should be rejected.
A further provision of the 1999 Act which was relied upon by the second respondent in his notice of contention was s 249(4), which requires certification of a proposed by-law by a legal practitioner before it is made by a council. The second respondent contended that the Full Court erred in holding that the certification requirement had been met. Section 249(4) 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."
Regulation 19 of the Local Government (General) Regulations 1999 (SA) ("the Regulations") prescribes a form which requires the identification of the certifying practitioner by name and business address and that the practitioner sign the certificate. The by-law to be certified must be described in the body of the certificate.
As set out in the judgment of Kourakis J, a legal practitioner engaged by the Council reviewed the proposed By-law No 4 in late April and early May 2004, and formed the opinion that the Council had the statutory power to make it and that it was not in conflict with the 1999 Act. A certificate of validity, which accorded with the prescribed form under the Regulations, was prepared and incorporated in an electronic document which set out the proposed by-law. The document was sent by the legal practitioner to an officer of the Council on 3 May 2004. The prescribed form made provision for the legal practitioner's signature, followed by the words "legal practitioner". The practitioner's signature did not appear in the electronic document, but his name did.
Section 9 of the Electronic Transactions Act 2000 (SA) ("the Electronic Transactions Act") provides that:
"(1) If, under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if -
(a) a method is used to identify the person and to indicate the person's approval of the information communicated; and
(b) having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated; and
(c) the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a)."
Kourakis J held that the provision of the electronic certificate by the legal practitioner to the Council, together with the statement of his name and accompanying email, sufficiently identified him and made it clear that he expected that the certificate of validity of By-law No 4 could be printed and put before the Council for the purpose of making By-law No 4. His Honour held that the provision of the certificate, albeit unsigned, unequivocally signified that the named legal practitioner held the view that By-law No 4 was valid and subscribed to the opinion required by the certificate although he had not signed it.
In my respectful opinion, his Honour was correct in his application of s 9(1) of the Electronic Transactions Act and his conclusion that the requirements of s 249(4) and the Regulations, read with the Electronic Transactions Act, were met. The second respondent's contention to the contrary fails.
The impugned by-law
By-law No 4 - Roads was published in the South Australian Government Gazette on 27 May 2004. By-law No 4 was entitled:
"CITY OF ADELAIDE
By-law Made Under the Local Government Act 1999
By-law No 4 - Roads
FOR the management of roads vested in or under the control of the Council."
Paragraph 2 of By-law No 4, under the heading "Activities Requiring Permission", provided, inter alia:
"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 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 term "road" has the same meaning as in the 1999 Act.
The reference to "permission" in par 2 of By-law No 4 must be read in the light of By-law No 1, entitled "Permits and Penalties". That by-law was made under the 1999 Act and provided, inter alia:
"1. Permits
1.1 In any by-law of the Council, unless the contrary intention is clearly indicated, the word 'permission' means the permission of the Council given in writing.
1.2 The Council may attach such conditions to a grant of permission as it thinks fit, and may vary or revoke such conditions or impose new conditions by notice in writing to the permit holder.
1.3 Any permit holder shall comply with every such condition.
1.4 The Council may revoke such grant of permission at any time by notice in writing to the permit holder."
Revocation of By-law No 4
By-law No 4 was revoked in 2011 and replaced by a by-law in similar terms in relation to preaching, canvassing and haranguing on roads. It did not contain any provision equivalent to par 2.8 of By-law No 4 relating to the distribution of written materials. Despite the revocation, the appeal is not moot. There are two reasons for that. The first is that there are proceedings in the Supreme Court of South Australia, the outcome of which may be related to the outcome of this appeal. The third respondent has appealed to the Supreme Court against his conviction in the Magistrates Court of South Australia for breaching By-law No 4. There are also unresolved proceedings for an injunction in the Supreme Court brought by the Council against the second and third respondents and others. Both proceedings have been adjourned pending the outcome of this appeal. Further, a decision of this Court as to whether par 2.3 of By-law No 4 infringes the implied freedom of political communication is likely to be significant, if not determinative, of the question whether the like provision in the 2011 by-law is valid.
The by-law making power
Paragraphs 2.3 and 2.8 of By-law No 4 were found by the Full Court to be supported by s 667(1)(9)(XVI) of the 1934 Act. In his Honour's reasons for judgment, which included a review of the history of similar by-law making powers, Kourakis J favoured a broad view of s 667(1)(9)(XVI). His Honour further held that pars 2.3 and 2.8 were, subject to the implied freedom of political communication, a reasonable and proportional exercise of the by-law making power.
By their notices of contention, the second and third respondents submitted that pars 2.3 and 2.8 of By-law No 4 were not authorised by s 667(1)(9)(XVI). They argued that the specific and limited heads of power in other paragraphs of s 667(1) of the 1934 Act and s 239 of the 1999 Act were inconsistent with the broad construction of s 667(1)(9)(XVI) found by the Full Court. Those contentions should be rejected.
There is nothing novel about the language of s 667(1)(9)(XVI). The terms "good rule and government of the area" and "convenience, comfort and safety of its inhabitants" have a venerable ancestry. In the first Municipal Corporations Act (5 & 6 Wm IV, c 76), enacted in the United Kingdom in 1835, s 90 provided that:
"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".
A similar successor provision, s 23 of the Municipal Corporations Act 1882 (45 & 46 Vict, c 50), was judicially construed in 1896 as disclosing two purposes: that of good government and the suppression of nuisances. The English courts took a "benevolent" approach to its construction. It supported by-laws relating to conduct in public places including the use of indecent language or gestures, singing or playing music and gambling.
The terms "good rule and government" and "suppression of nuisances", describing heads of by-law making power, found their way into local government statutes in the Australian colonies in the 19th century and in State statutes after federation. Griffith CJ in President &c of the Shire of Tungamah v Merrett said, of "good rule and government":
"whatever interpretation is put upon it, [it] certainly includes any matter which the legislature have plainly said they think to be for the good rule and government of the municipality."
Speaking of the same head of power in Melbourne Corporation v Barry, Isaacs J said:
"It confers a power, not of extending the other powers, but of aiding them if need be or of making independent ordinances in matters ejusdem generis with the specific powers of the Act". (footnote omitted)
That dictum was approved by Starke J in Williams v Melbourne Corporation but was not considered in the judgments of the other members of the Court. It was, in effect, applied by the Full Court of the Supreme Court of Victoria in Seeligson v City of Melbourne. But, as noted in that case, there was no common characteristic to be found in the specific powers which defined the boundaries of the general power. That is to say, there was no single genus of power. It was, however, legitimate to refer to any of the specific powers for guidance in a like case arising under the general power. So in Leslie v City of Essendon, relied upon here by the second and third respondents, a by-law prohibiting any person from singing or haranguing on a street or footway after being required to desist by a police or council officer, was held invalid. O'Bryan J thought that the "good rule and government" power in the Local Government Act 1928 (Vic) could be given no wider scope than indicated by Isaacs J in Barry. Sholl J took the view that the power authorised by-laws which were machinery provisions for the better implementing of by-laws made under the specific powers and by-laws made on any subject of a character similar and related to that dealt with by a specific power and not by implication excluded by its terms or that of other specific powers. As appears below, that construction does not fit the language of s 667(1)(9)(XVI) of the 1934 Act.
The earliest relevant South Australian statute was the Municipal Corporations Act 1861 (SA). It conferred a general power on councils to make "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". Its successor, the Municipal Corporations Act 1880 (SA), created a power to make by-laws on 146 specific topics, concluding with:
"And generally for more effectually regulating, observing, and carrying out all and every the 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."
This appears to have been the first use of the term "convenience, comfort, and safety of the inhabitants" as a head of by-law making power in South Australia. The expressions "good rule and government" and "convenience, comfort, and safety" have continued in South Australian local government legislation as heads of by-law making power since then.
Early judicial consideration in South Australia of the "convenience, comfort, and safety" by-law making power in the Municipal Corporations Act 1890 (SA) gave it a broad construction. It was not to be limited to the prevention of common or public nuisances, but might support by-laws with respect to a wider range of conduct in a particular district according to its locality and character, and the occupations of its population.
The concepts at common law of common and public nuisances suffer from difficulties of coherence. The difficulties are a product of their history. Nevertheless, they incorporate elements of annoyance, inconvenience, or hurt to the public. By-laws may be made for the "convenience, comfort and safety" of the inhabitants of the City which prohibit or regulate conduct which would or could constitute a public nuisance. Such a by-law would, in any event, fall within the specific head of power to make by-laws for the prevention and suppression of nuisances in s 667(1)(4)(I). On its face the scope of the "good rule and government" power would also authorise by-laws which prohibit or regulate analogous conduct. By-laws to regulate the places, times and manner of conduct which, while not constituting a nuisance, may affect the use and enjoyment of roads and public places by members of the public, would fall within the scope of the subject matter of the power.
In Lynch v Brisbane City Council, Dixon CJ considered the terms "the peace, comfort, … welfare, … convenience … of the City and its inhabitants" and "the general good government of … its inhabitants", which appeared in the City of Brisbane Acts 1924-1958 (Q). He characterised them as "wide and indefinite". Referring to a number of decisions of State Supreme Courts, his Honour said:
"they serve to show that a power to make by-laws for the good rule and government of a municipality is capable of a diversity of applications and is an effective power of control by ordinance."
He referred with approval to Leslie v City of Essendon as a case in which a general power was preceded by enumerated specific heads of power. In the City of Brisbane Acts, the general good government provision began with the words "Without limiting the generality of its powers". Dixon CJ said of the words of that provision:
"They give a power to lay down rules in respect of matters of municipal concern, matters that have been reasonably understood to be within the province of municipal government because they affect the welfare and good government of the city and its inhabitants. The words are not to be applied without caution nor read as if they were designed to confide to the city more than matters of local government. They express no exact limit of power but, directed as they are to the welfare and good government of a city and its inhabitants, they are not to be read as going beyond the accepted notions of local government."
What was said in Lynch by Dixon CJ may have been little more than a particular application of the general proposition that a statutory power must be exercised having regard to the scope, object and subject matter of the Act by which the power is conferred. The Supreme Court of South Australia in subsequent cases treated Lynch as supporting a more liberal view of the "good rule and government" head of power than had been envisaged by Isaacs J. In the Full Court in the present proceedings, Kourakis J adopted that wide view. His Honour held that the specific powers conferred by the 1934 Act elucidate and inform the denotation of "the convenience power". His Honour did not think it necessary for the subject matter of a by-law made pursuant to the convenience power to be strictly analogous to the subject matter of one or more of the specific powers. He said:
"The question is whether the by-law made pursuant to the convenience power addresses a municipal purpose having regard to the subject matters of the specific powers."
In the event, he held that:
"The convenience power extends to regulating conduct which, having regard to the considerations I have mentioned, is properly a matter of municipal concern and which, if left uncontrolled, will materially interfere with the comfort, convenience and safety of the city's inhabitants."
In so holding, his Honour was, with respect, correct.
The powers conferred upon the Council by s 667(1)(9)(XVI) open with the word "generally" and are not expressed to be incidental or ancillary to specific heads of power. There is no textual warrant for so reading them. Like any wide statutory discretion, however, they must be exercised consistently with the subject matter, scope and purpose of the 1934 and 1999 Acts.
Local government is a creature of statute. The 1934 and 1999 Acts may be consulted to determine what are, in the words of Dixon CJ, "matters of municipal concern". There may also be matters which are not expressly mentioned in those Acts but which are within what Dixon CJ called "the accepted notions of local government." By-laws made under the general power may of course be ancillary to by-laws made under specific heads of power. They may also deal with related or analogous topics which, because of the relationship or analogy, can be characterised as matters of "municipal concern". Those examples are not intended to describe exhaustively the scope of the general power. They are, however, sufficient for the disposition of this appeal.
The conclusion to be drawn from the preceding construction of s 667(1)(9)(XVI) is not difficult. Having regard to the extensive provisions relating to roads previously found in the 1934 Act and their successors in the 1999 Act, a by-law which regulates the conduct, on roads, of public advocacy of commercial or religious or political messages, is a by-law which deals with a matter of municipal concern. It is well within the subject matter covered by the rubrics "good rule and government of the area" and "the convenience, comfort and safety of its inhabitants." However, to say that pars 2.3 and 2.8 of By-law No 4 were within the subject matter of the by-law making power is not to answer the question whether they were a valid exercise of that power. The power and by-laws made under it must be construed by reference to the common law principle of legality, and the requirements of reasonableness and proportionality discussed below. Ultimately, the implied constitutional freedom of political communication imposes limits which affect construction. It is necessary first to consider the application of the principle of legality so far as it concerns the common law freedom of expression.
The principle of legality
Statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. The common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a "principle of legality" which governs the relationship between parliament, the executive and the courts. The presumption is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware. To apply it is to act conformably with legislative intention as explained by this Court in Lacey v Attorney-General (Qld).
Relevantly, the construction of s 667(1)(9)(XVI) is informed by the principle of legality in its application to freedom of speech. Freedom of speech is a long-established common law freedom. It has been linked to the proper functioning of representative democracies and on that basis has informed the application of public interest considerations to claimed restraints upon publication of information. It is never more powerful than when it involves the discussion and criticism of public authorities and institutions, be they legislative, executive or judicial. An example of its strength in that context is the common law impediment to local authorities and public authorities suing for defamation. The "paramount importance" accorded to freedom of expression and of criticism of public institutions has also played a part in the development of the principles of the law of contempt. It played a part in the reasoning of this Court in Davis v The Commonwealth in the characterisation, for constitutional purposes, of legislation said to be incidental to a substantive head of power. It was also identified as a material consideration in similar reasoning adopted by Mason CJ in Nationwide News Pty Ltd v Wills. On the question whether a law could be said to be reasonably proportional and therefore incidental to a head of power, Mason CJ said:
"in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression." (footnote omitted)
As discussed below, analogous reasoning applies to the determination whether a by-law is, or is capable of being, a reasonable and proportionate, and therefore valid, exercise of the by-law making power. Its effect upon the exercise of freedom of expression will be a material consideration.
The common law freedom of expression does not impose a constraint upon the legislative powers of the Commonwealth or the States or Territories. However, through the principle of legality, and criteria of reasonable proportionality, applied to purposive powers, the freedom can inform the construction and characterisation, for constitutional purposes, of Commonwealth statutes. It can also inform the construction of statutes generally and the construction of delegated legislation made in the purported exercise of statutory powers. As a consequence of its effect upon statutory construction, it may affect the scope of discretionary powers which involve the imposition of restrictions upon freedom of speech and expression.
The terms "preach", "canvass" and "harangue" used in par 2.3 of By-law No 4 were not defined. There was, however, little controversy about their ordinary meaning. The term "preach" means to advocate or inculcate asserted religious or moral truth and right conduct in speech or in writing. The term "canvass" refers to the soliciting of votes, subscriptions and opinions from a district or a group of people. The term "harangue" may refer to "passionate, vehement speech; noisy and intemperate address". It can also refer to "any long, declamatory or pompous speech". The appellant contended for the first meaning. That contention should be accepted as it fits more readily with the text and context of By-law No 4. The communications which are covered by By-law No 4 are not private discussions with willing listeners. There is little point in preaching only to the converted. Consistently with the principle of legality, pars 2.3 and 2.8 should be construed as concerned only with communications which are directed, without discrimination, to willing and unwilling recipients. That construction accords with their text.
Each category of conduct covered by pars 2.3 and 2.8 of By-law No 4 is a mode of unsolicited public communication in a class of locations vested in the Council and for which the Council has statutory responsibilities. By-law No 4 did not purport to proscribe or regulate the content of any communication. That is not to say that the content of a proposed communication will always be irrelevant to the grant or withholding of permission under By-law No 4. It could, however, never be a relevant consideration that the Council or its officers disagreed with, or disapproved of, that content. As previously observed, the subject matter of By-law No 4 and the discretion which it created to grant permissions to engage in the conduct which it otherwise proscribed, had to fall within the scope of matters of municipal concern or "accepted notions of local government". Control of the expression of religious or political opinions per se is not within that subject matter. According to the circumstances, control sub modo may be within it. By-law No 4, so understood, involved the least interference with freedom of expression that its language could bear. By parity of reasoning, the power conferred by s 667(1)(9)(XVI), construed in accordance with the principle of legality in its application to the common law freedom of expression, was sufficient to support the impugned by-law. That leaves for consideration the question whether pars 2.3 and 2.8 were unreasonable or not reasonably proportional exercises of that power. Those questions were raised by the third respondent's amended notice of contention. It is only after those questions are answered that it is necessary to have regard to whether, as the Full Court found, pars 2.3 and 2.8 infringed the implied freedom of political communication.
Reasonableness and reasonable proportionality
The third respondent by his amended notice of contention asserted that the impugned provisions of By-law No 4 were "an unreasonable exercise" of the by-law making power and "not a reasonably proportionate or proportionate exercise of the power". Those grounds invoke criteria of invalidity which have overlapping histories and applications. They define limits on the by-law making power.
A high threshold test for unreasonableness invalidating delegated legislation was set by the Privy Council in Slattery v Naylor. Their Lordships spoke of a "merely fantastic and capricious bye-law, such as reasonable men could not make in good faith". That criterion did not invite judicial merits review of delegated legislation. Nor has unreasonableness ever been so regarded in this Court. As their Lordships said, a by-law would not be treated as unreasonable "merely because it does not contain qualifications which commend themselves to the minds of judges." In Kruse v Johnson, Lord Russell CJ accorded a particular respect to the authority conferred on public representative bodies in making delegated legislation which would not necessarily inform consideration of validity today. However, he did not exclude from review by-laws "partial and unequal in their operation" or "manifestly unjust" or involving "such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men".
The high threshold approach to invalidating unreasonableness was reflected early in the life of this Court in Widgee Shire Council v Bonney, where Griffith CJ, after referring to Slattery v Naylor and Kruse v Johnson, said:
"The existence of a power and the expediency of its exercise are quite different matters. The question of the existence of the power can always be determined by a Court of law. But, in my opinion, the expediency of the exercise of a power is not a matter for determination by a Court."
The reasoning of Isaacs J was to similar effect, although he specifically referred to the limiting case formulated in Slattery v Naylor. All the Justices treated unreasonableness, so understood, as going to power. The point was made plainly by Higgins J:
"Questions as to the validity of by-laws really come under the ordinary principles applicable to powers; and when it is said that a by-law is unreasonable, and therefore invalid, what is really meant is that the provisions in the by-law cannot reasonably be regarded as being within the scope or ambit or purpose of the power. The language used in Courts of equity with regard to powers seems to me to be more appropriate, and to conduce to greater clearness of thought."
This Court continued to treat invalidating unreasonableness, in relation to delegated legislation, in a limiting high threshold sense concerned with "the contemplated ambit of power." In Williams v Melbourne Corporation, Dixon J said:
"Although in some jurisdictions the unreasonableness of a by-law made under statutory powers by a local governing body is still considered a separate ground of invalidity, in this Court it is not so treated." (footnotes omitted)
In Brunswick Corporation v Stewart Starke J adopted the language of the Privy Council in Slattery in distinguishing between a "drastic" provision and one which was "so capricious and oppressive that no reasonable mind can justify it." Williams J in the same case adopted the language of Lord Russell CJ in Kruse v Johnson, equating unreasonableness in a by-law with "such oppressive or gratuitous interference with the rights of those who are subject to it as could find no justification in the minds of reasonable men".
It is logically possible that the limits defined by the content of a general power may intersect with the limits imposed upon it by the requirement that its exercise not be unreasonable. Such an intersection was apparent in Clements v Bull. A majority of the Court held invalid a regulation purportedly made with respect to "[t]he improvement and management of the port" under s 138(i) of the Melbourne Harbor Trust Act 1928 (Vic). The regulation made it an offence to "[h]old any meeting or address any assemblage within the Port without the consent of the Commissioners in writing". Fullagar J, with whom Webb J generally agreed, held the regulation invalid as enacting a prohibition extending to acts or things "which cannot reasonably be regarded as the concern of a corporation charged with the management of a port or harbour." His Honour said that "[t]he case, indeed, well illustrates ... the relevance, and the only relevance, of 'unreasonableness' in relation to the validity of a by-law." The regulation in that case, because it covered the area of the port, would have extended to meetings and assemblages for any purpose in private homes or buildings or otherwise on private lands within the port. Williams ACJ and Kitto J, in dissent, found a connection between the regulation and the efficient performance of the functions of the port. They observed, referring to Brunswick Corporation, that a regulation might be held invalid on the ground that no reasonable mind could justify it by reference to the purposes of the power, but characterised that criterion as "only a way of stating the conclusion that no real connection with the purposes of the power can be seen."
In Shanahan v Scott, the Court considered limitations on a very general power to make regulations "providing for all or any purposes ... necessary or expedient for the administration of the Act or for carrying out the objects of the Act." Such a power, it was said, would not support "attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends." In Minister for Resources v Dover Fisheries Pty Ltd, Gummow J, considering a similarly worded regulation-making power, said of the indicia of invalidity identified in Shanahan v Scott that:
"These are indicia which assist in deciding the general question of whether the regulations in question are a reasonable means of attaining the ends of the legislative delegation of power."
The text of the regulation-making powers considered in Shanahan v Scott and in Dover Fisheries expressly raised the requirement that regulations made under them have a rational connection to the statutory purpose. Nevertheless, as the approach adopted by Gummow J suggested, the analysis in those cases is applicable to the general question whether a regulation is invalid for unreasonableness.
Applying the general approach to "unreasonableness" set out in the preceding cases, and accepting its subsistence as a limit on delegated legislative power, the impugned provisions of By-law No 4 could not be said to have been invalid on that ground. Paragraphs 2.3 and 2.8 provided a rational mechanism for the regulation by proscription, absent permission, of conduct on roads which involves unsolicited communication to members of the public. They were not, on their face, capricious or oppressive. Nor did they represent a gratuitous interference with the rights of those affected by them. They provided a mechanism for protecting members of the public from gratuitous interference with their freedom to choose whether and, if so, when and where they would be the subject of proselytising communications. They were directed to modes and places of communication, rather than content. It was not necessary to the application of the high threshold test of unreasonableness to consider possible alternative modes of regulation. The criterion is not confined to purposive powers. Paragraphs 2.3 and 2.8 were not invalid on account of unreasonableness.
The difficulties of making out a challenge to validity on the basis of unreasonableness no doubt explain the focus in the third respondent's written submissions on the ground of contention asserting lack of reasonable proportionality. Proportionality is not a legal doctrine. In Australia it designates a class of criteria used to determine the validity or lawfulness of legislative and administrative action by reference to rational relationships between purpose and means, and the interaction of competing legal rules and principles, including qualifications of constitutional guarantees, immunities or freedoms. Proportionality criteria have been applied to purposive and incidental law-making powers derived from the Constitution and from statutes. They have also been applied in determining the validity of laws affecting constitutional guarantees, immunities and freedoms, including the implied freedom of political communication which is considered later in these reasons.
A high threshold test, which falls into the class of proportionality criteria, was applied to determine the validity of delegated legislation by Dixon J in Williams v Melbourne Corporation. His Honour, speaking of unreasonableness in the context of a purposive by-law making power, pointed out that although there might, on the face of it, be a sufficient connection between the subject of the power and that of the by-law:
"the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power." (emphasis added) (footnote omitted)
Although a high threshold test, that formulation permitted greater judicial scrutiny than the test, approaching a criterion of irrationality, derived from Slattery v Naylor and Kruse v Johnson. It has been suggested that the difference in the result between the majority and the minority in Clements might be attributable to the majority's application of the test adopted by Dixon J in Williams, and the minority's preference for that of Starke J in Brunswick Corporation v Stewart. In Coulter v The Queen, which concerned the validity of procedural rules of the Supreme Court of South Australia, Mason CJ, Wilson and Brennan JJ, citing Williams, said:
"The relevant criterion of validity is not the fairness of the rules but whether they are a reasonable means of attaining the ends of the rule-making power".
The formulation adopted by their Honours, however, suggests a lower threshold test than that adopted by Dixon J. In the event, as appears below, it is the high threshold test which prevails in the field of purposive delegated legislation.
In the Tasmanian Dam Case, Deane J adopted a high threshold proportionality test, similar to that stated by Dixon J, for a law purportedly made in the exercise of a purposive power under the Constitution. Such a law, he said, "must be capable of being reasonably considered to be appropriate and adapted to achieving" its constitutional purpose. His Honour characterised the test as one of "reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it." Applying the test so framed, the Court was not simply to substitute its view of what was appropriate and adapted to the objects of the law-making power for that of the legislative body. Similar formulations appeared in the judgments of Murphy and Brennan JJ. Although it is not clear from the text of Mason J's judgment in that case, his Honour later regarded himself as having joined in that formulation. Deane J explained the significance of the high threshold test in Richardson v Forestry Commission. His Honour observed that it was not necessary for the Court to be persuaded that the particular provisions were in fact appropriate and adapted to the designated purpose or object. That was a matter for the Parliament. He said:
"it will, in my view, suffice if it appears to the Court that the relevant provisions are capable of being reasonably considered to be so appropriate and adapted".
Almost identical formulations were adopted by four other Justices.
In South Australia v Tanner, which concerned the validity of delegated legislation, the majority noted, without demur, that the parties had accepted "the reasonable proportionality test of validity ... namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose." Their Honours equated that test with the test enunciated by Dixon J in Williams and added that it was:
"in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose."
The test sets an appropriate limit on the exercise of purposive powers entrusted to a public authority to make delegated legislation. It gives due respect to the authority entrusted by the parliament in the law-making body. Historically, it can be regarded as a development of the high threshold "unreasonableness" test derived from the 19th century English authorities. It requires a rational relationship between the purpose for which the power is conferred and the laws made in furtherance of that purpose, whether it be widely or narrowly defined.
The high threshold test for reasonable proportionality should be accepted as that applicable to delegated legislation made in furtherance of a purposive power.
The proportionality test formulated by Dixon J in Williams, adopted by Deane J in the Tasmanian Dam Case, and accepted in Tanner, makes it clear that a reviewing court is not entitled to substitute its own view of what would be a reasonable law for that of the legislature or a body exercising delegated legislative power. So formulated, the criterion of reasonable proportionality can be regarded as an application of the unreasonableness criterion, adapted to a purposive law-making power. Indeed, in Tanner the majority echoed some of the language of Griffith CJ in Widgee Shire Council, when their Honours observed:
"It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of power."
The use of the term "proportionality" in Tanner did not draw upon any novel or distinct theory of judicial review of delegated legislation. It was used to designate an evolved criterion defining the limits of a particular class of statutory power. As discussed earlier in these reasons, "proportionality" is a term used to designate criteria, going to validity, of rational law-making and decision-making in the exercise of public power. Kiefel J, writing extra-curially, has referred to its application in such disparate fields as criminal responsibility, sentencing, the permissible scope of qualifications upon human rights and freedoms under constitutional and statutory charters, intrusions upon constitutional guarantees, immunities and freedoms, express and implied, as well as purposive law-making power. Other fields in which it has been said proportionality operates include apportionment of liability in negligence cases and in the application of equitable estoppel against the "disproportionate making good of the relevant assumption". Each of its applications has its own history.
The focus of these reasons so far has been on reasonable proportionality in its application to the validity of delegated legislation made in the exercise of a purposive power. A separate but related question arises about the proportionality criterion to be applied where, as in this case, it is contended that a law, which may be delegated legislation, impinges upon a constitutional guarantee, immunity or freedom. In Cunliffe v The Commonwealth, Mason CJ distinguished the approach to be taken to the question whether a law falls within a head of constitutional legislative power on the one hand, and the validity of a law affecting the guarantee of a fundamental right or the implied freedom of communication on the other. His Honour said:
"In the case of the implication, as with a constitutional guarantee, this question is simply whether the burden or restriction is reasonably appropriate and adapted, in the court's judgment, to the legitimate end in view. In the context of whether a law is within power, the question is whether the law is capable of being reasonably considered to be appropriate and adapted to the end sought to be achieved."
That distinction appears to have been applied, albeit not explicitly, by three Justices of this Court in Coleman v Power when they rejected a high threshold proportionality test in relation to laws affecting the implied freedom of political communication. McHugh J observed of the high threshold test:
"Although Justices of this Court have used that formulation on previous occasions, a majority of the Court has not accepted it in any case concerned with the constitutional protection of political communication."
The distinction so made does not exclude the practical convergence of the tests in particular cases. A law which fails the high threshold test will necessarily fail the lower threshold test. The application of the proportionality test applicable to the implied freedom of political communication is considered later in these reasons.
The third respondent contended that pars 2.3 and 2.8 of By-law No 4 were not a reasonably proportional exercise of the power conferred by s 667(1)(9)(XVI) of the 1934 Act because they:
• departed from or varied the plan of the enabling Acts;
• were gravely oppressive in their effect on the distribution of written matter and a large part of "normal speech" and the "ordinary incidents of human intercourse";
• were "fundamentally directed at banning most forms of communication in most public places";
• were so widely drawn as to extend to acts and things which could not reasonably be regarded as the concern of local government;
• had a substantial and unnecessary adverse effect on freedom of expression; and
• advanced the statutory purpose only marginally.
Applying the high threshold test for reasonable proportionality, none of these matters either singly or collectively support a finding that By-law No 4 was not a valid exercise of the by-law making power. Some of the points made by the third respondent have already been considered in determining whether By-law No 4 was invalid for unreasonableness. The roads under the control of the Council, as was said in the Full Court, are a shared public resource. Regulation of their use is necessary to optimise their benefit. The conduct proscribed, subject to permissions, could, if unregulated, have potentially significant effects upon the ability of people using the roads and public places to go about their business unimpeded and undistracted by preaching, haranguing and canvassing, and the unsolicited tender of literature from strangers.
The availability of an alternative mode of regulation may be relevant in cases in which the question of want of reasonable proportionality is raised with respect to delegated legislation. In the constitutional context, the availability of alternative modes of regulation has been used to determine the existence of a prohibited purpose of discriminating against freedom of interstate trade and commerce, contrary to s 92 of the Constitution, and for the purpose of determining the validity of a legislative burden on the implied freedom of political communication. It suffices to say that, having regard to the high threshold of reasonable proportionality going to the validity of delegated legislation, this approach requires caution. Counterfactual explorations run the risk of descending to a lower level test and second-guessing the merits of the delegated legislation. In any event, the utility of the possible alternatives in this case is not obvious, and certainly not obvious enough to support an invalidating characterisation of By-law No 4 as lacking "reasonable proportionality". A hypothetical restriction on preaching, canvassing, haranguing or distributing literature imposed by reference to criteria such as time and place, and/or minimum distances between persons engaging in such activities, would raise questions of administration, enforcement and supervision. Courts are not in a position to make comparative judgments on such issues, particularly where they may involve costs and the allocation of resources upon which there may be competing claims.
Paragraphs 2.3 and 2.8 of By-law No 4, on the face of it, served legitimate ends in terms of the regulation of the public use of roads and public places. Having regard to the class of conduct and the class of locations in which they applied, they were capable of being considered reasonably appropriate and adapted to support that end. The contention that pars 2.3 and 2.8 were invalid as not reasonably proportionate exercises of the by-law making power fails.
The implied freedom of political communication
It is not necessary in order to dispose of this appeal to embark upon any extended exegesis of the implied freedom of political communication. The parties were on common ground as to the test to be applied in determining whether the freedom was infringed by By-law No 4. The test adopted by this Court in Lange v Australian Broadcasting Corporation, as modified in Coleman v Power, involves two questions, the terms of which are settled: