FEDERAL COURT OF AUSTRALIA

Corneloup v Launceston City Council [2016] FCA 974

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue directed to the respondent quashing its decision, made on 27 March 2015, to refuse the applicant a permit to preach in the Launceston City malls.

2.    A writ of mandamus issue directed to the respondent requiring it to consider and determine the applicant’s application according to law.

3.    The respondent pay the applicant’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

TRACEY J:

1    Mr Caleb Corneloup is a committed evangelical Christian. He considers it to be a religious duty to share his faith with others through public preaching. He seeks to preach in public places where people gather rather than in churches or other places of public worship. His preaching covers the application of Christian doctrine to various political issues. The right to preach in some public places is regulated. Mr Corneloup had, some years ago, preached in the Rundle Mall in Adelaide without a permit from the Adelaide City Council. Such a permit was required by a municipal by-law. Mr Corneloup applied to the District Court for a declaration that the by-law was invalid. He did so, on the grounds that the by-law was ultra vires the South Australian Local Government Act 1999 (SA) and that it impinged impermissibly on the freedom of citizens to communicate on political matters. He pursued his application, ultimately unsuccessfully, to the High Court: see Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 (“Adelaide Corporation Case”).

2    Mr Corneloup subsequently moved to Launceston. That city has a number of pedestrian malls in its central business district. Mr Corneloup was aware that the respondent, the Launceston City Council (“the Council”), had promulgated a By-Law which regulated, amongst other things, preaching and speaking on political matters in the malls. He applied for a permit to preach. When his application was refused he commenced the present proceeding.

3    He invoked the jurisdiction of this Court, under s 39B(1A) of the Judiciary Act 1903 (Cth), because he wished to rely on the same implied constitutional limitation on which he founded his arguments in the Adelaide Corporation Case. He also invoked the Court’s pendant or accrued jurisdiction by challenging the Council’s decision to refuse him a permit on orthodox administrative laws grounds; under s 16 of the Anti-Discrimination Act 1998 (Tas); and on the ground that the prohibition of preaching in the malls was ultra vires what he described as “the guarantee of the free profession and practice of religion afforded by s 46 of the Constitution Act 1934 (Tas)”.

4    Mr Corneloup gave notice to the Commonwealth, State and Territory Attorneys-General of his intention to rely on the constitutional ground: see s 78B of the Judiciary Act 1903 (Cth). Only the Attorney-General for the State of Tasmania chose to intervene. Her submissions were confined to issues arising under the implied constitutional limitation and under the Constitution Act 1934 (Tas).

5    For the reasons which follow I have concluded the impugned decision is affected by jurisdictional error and should be quashed. As a result the constitutional questions do not arise.

THE BACKGROUND FACTS

6    On 19 February 2015, Mr Corneloup applied, by e-mail, for a permit to preach in the Launceston City malls. The application was made pursuant to By-Law No. 1 of 2010 - Malls (“the Malls By-Law”). Mr Corneloup was seeking a permit to:

“preach in the city malls…to speak on political matters related to the Christian world view such as creation/evolution, homosexuality, abortion as wells (sic) as other Christian teachings.”

7    On 27 March 2015, the Council advised Mr Corneloup that his application had been rejected. The decision was made by Ms Jacquie Leonard, the Council’s Manager Customer Service. Ms Leonard provided written reasons for her decision.

8    Although Mr Corneloup had applied for a permit to preach in all of the city malls, Ms Leonard, for reasons which she was unable to explain in evidence, assumed that Mr Corneloup was only seeking permission to preach in the Brisbane Street Mall. She gave the following reasons for refusing the application:

“1.    The Local Government Act 1993 gives the Council responsibility “to plan for, develop and manage municipal areas in the interests of their communities”. The Council’s direct responsibilities include managing the city’s malls.

2.    Malls By-Law No. 1 of 2010 (the “By-Law”), clause 12, prohibits preaching or public speaking, without a permit, in the areas set out in Schedule 1 (including Brisbane Street Mall).

3.    Clause 5 of the By-Law, states that the Council “may” permit use of the Mall on “…such terms and conditions as Council considers appropriate.” The Manager Customer Service can issue a permit for a use in accordance with the “Booking and Usage Guidelines for the Brisbane Street and Quadrant Mall and Civic Square” (the Guidelines).

4.    The Guidelines, paragraph 5.4, list “non-permitted uses” as “religious spruikers/hawkers”, “political spruikers/hawkers” and “leaflet hand-outs”. The preamble to the Guidelines states that the Guidelines “…have been formulated in order to maximise usage potential of the areas whilst minimising adverse impacts on traders, pedestrians and other passive users”.

5.    Preaching in general is clearly of a character that is not permitted under the Guidelines. I have not needed to further review the details of your proposed activities as they clearly fall into the activities that are not permitted.

6.    I view these restrictions as reasonable in the circumstances, with no special or unusual circumstances being applicable. The Mall is used by many members of the community for commerce and social activities, and the Council is seeking to allow this to continue to occur in a relaxed atmosphere. In this type of public space it is appropriate to allow members of the public to be free from unsolicited communication on issues of a political or religious character. The Guidelines place reasonable controls on these unsolicited communications and approaches. It does not prevent religious or political discourse from occurring in other more suitable places, or in other ways.”

Ms Leonard recorded, that in making her decision, she had had regard to Mr Corneloup’s e-mail, the Local Government Act 1993 (Tas) (“the LG Act”), the “Booking and Usage Guidelines for the Brisbane Street and Quadrant Mall and Civic Square, Launceston City Council 2012” and to the Malls By-Law.

9    The “Guidelines” referred to in Ms Leonard’s reasons were originally made by the Council in 2009. Their incorporation by reference in the Malls By-Law was permissible pursuant to s 147(2) of the LG Act. It will be necessary, later in these reasons, to say more about the terms of the Guidelines and their interaction with the provisions of the Malls By-Law.

10    On 28 March 2015, Mr Corneloup again approached the Council. He sent an e-mail to Ms Leonard asking “two further questions”. He asked whether the Council would give him a permit to preach in any of the malls identified in Schedule 1 of the Malls By-Law and whether there were other areas in Launceston to which the public resorted and which Ms Leonard might recommend “as a location to preach”.

11    On 8 May 2015, Ms Leonard responded. She informed Mr Corneloup that, under the Guidelines, “religious spruikers/hawkers” were not permitted in any mall and that the Council has no “designated spruiking space/s”.

12    In his amended application Mr Corneloup sought to treat Ms Leonard’s response as a separate decision and sought to challenge that decision. Ms Leonard’s e-mail did no more than answer the questions raised by Mr Corneloup on 28 March 2015. It was not a decision to refuse any application made by him. I will, therefore, only deal with Mr Corneloup’s challenge to the decision made on 27 March 2015. This was the operative decision which denied him a permit to preach in the malls.

THE MALLS BY-LAW AND THE GUIDELINES

13    The Malls By-Law was made, under the LG Act, “for the regulation, control and protection of Council’s malls throughout the municipal area of the Launceston City Council.” It was to apply to all malls owned by or under the management control of the Council. The Malls By-Law is divided into five Parts and contains a Schedule which identifies the malls to which it applies. Only Parts 1 to 3 are relevant for present purposes.

14    Part 2 is entitled “USE OF MALLS”. Clause 5 bears the same title as the Part in which it appears. It provides that:

“1)    Council may permit the use of a mall or part of a mall upon such terms and conditions as the Council considers appropriate.

2)    A permit issued in accordance with the Guidelines may be issued by the Manager Customer Service or a Customer Service Consultant.”

15    The words or terms “mall”, “Guidelines” and “Manager Customer Service” are defined in cl 3. Those definitions are as follows:

“‘Guidelines’ means the Launceston City Council Booking and Use Guidelines for Brisbane Street Mall, Quadrant Mall and Civic Square dated July 2009, and includes any amended versions of that document or any substitute or replacement guidelines as may be approved and used by the Council from time to time;

…

‘mall’ means an area listed in Schedule 1;

…

‘Manager Customer Service’ means the person holding the position of Manager Customer Service with the Launceston City Council, or a person acting in that position;”

16    The remaining clauses of Part 2 (cll 6 to 9 inclusive) deal with a range of activities which might occur in the malls subject to the issuing of a permit. They include the conduct of parties, the erection of structures and signs, the sale of products and raffle tickets and busking. In each case the conduct is prohibited “without a permit to do so”, without a permit “to do so issued by Council” or “without first obtaining a permit.” In each case a contravention of the provision attracts a monetary penalty.

17    Part 3 is entitled “UNACCEPTABLE BEHAVIOUR”. It contains cl 12 which is of present relevance. That clause reads:

“(1)    A person must not organise or participate in an assembly, concert, or engage in preaching or public speaking in a mall without a permit to do so issued by an authorised officer.

Penalty: a fine not exceeding 5 penalty units.”

18    The other clauses in the Part either prohibit activities unless a person holds a permit (cll 11, 13 and 15) or prohibit certain conduct absolutely (cll 14, 16 and 17). In each clause in which provision is made for the issuing of a permit such a permit is, as is the case with cl 12, one “issued by an authorised officer.” In all cases a contravention of the clause renders the person concerned liable to a monetary penalty.

19    The term “authorised officer” is defined in cl 3 as follows:

“‘authorised officer’ includes the Team Leader Environmental Services, the Manager of Parks and Recreation, the Manager of Environmental Services, a person appointed by Council, any person authorised in writing by the General Manager, or a police officer of the Tasmania Police Service.”

20    The Guidelines to which Ms Leonard had resort, when making her decision, bore a different title and date from the Guidelines as defined in the Malls By-Law. There was no evidence before the Court that the Council had approved any amendment to the July 2009 Guidelines. In the absence of any approved changes the 2009 Guidelines remained in force at relevant times: see s 147(2) LG Act. Nothing may turn on Ms Leonard’s apparent mistake in purportedly applying the 2012 Guidelines rather than the 2009 version. This is because both versions contained the same provision to which Mr Corneloup takes objection. That provision, which relates to the Brisbane Street Mall in the 2012 Guidelines, deals with “Non-permitted uses” and identifies them as:

    Religious spruikers/hawkers.

    Political spruikers/hawkers.

    Leaflet hand outs.

Both sets of Guidelines also deal with the regulation of other activities referred to in the Malls By-Law. None of these other activities is prohibited. The Guidelines contain a range of conditions on which permits for these other activities may be granted.

GROUNDS OF INVALIDITY UNDER THE GENERAL LAW

21    As already noted, the Court’s jurisdiction was invoked under s 39B(1A) of the Judiciary Act 1903 (Cth) because Mr Corneloup had raised a question arising under the Constitution and involving its interpretation. The Court’s jurisdiction “extend[s]…to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part …”: see Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 583-4 (Gummow and Hayne JJ) quoting Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 290 (Mason, Brennan and Deane JJ). Provided that Mr Corneloup’s reliance on the constitutional ground is not merely a colourable attempt to attract the Court’s jurisdiction (which has not been suggested), the Court is able to deal with the non-federal grounds even if it is unnecessary to deal with the constitutional point: see Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 (Bowen CJ, Morling and Beaumont JJ); New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commissioner (1995) 59 FCR 369 at 385 (Hill J).

22    It will be convenient to deal first with Mr Corneloup’s general law grounds because, if the Council’s impugned decision is found to be invalid by reason of one or more of the alleged errors, the constitutional issue may not arise.

23    Mr Corneloup challenged the decision to refuse his application for a permit alleging that the following errors of law had attended the making of the decision:

    The Guidelines, insofar as they prohibited the grant of permits to religious or political “spruikers” were inconsistent with the provisions of cl 12 of the Malls By-Law and were, as a result, invalid.

    In making her decision Ms Leonard inflexibly applied the policy which she discerned in the Guidelines, namely, that no application for a permit to preach in the Brisbane Street Mall, could be approved.

    In so deciding Ms Leonard also had regard to irrelevant considerations.

    Mr Corneloup had been denied procedural fairness because the Guidelines had not been provided to him prior to the making of the decision and he had no opportunity to make submissions to the Council relating to the applicability of the Guidelines.

24    During argument, counsel for Mr Corneloup, also developed a submission that Ms Leonard was not authorised to make the impugned decision. This was because she was not an authorised officer for the purposes of cl 12 of the Malls By-Law.

25    Clause 12 of the Malls By-Law relevantly provides that a person must not engage in “preaching” or “public speaking” in a mall unless the person has been granted a permit to do so. It, therefore, contemplates that such conduct may, if approved, occur.

26    The impugned provision in the Guidelines stipulates that “religious spruikers” and “political spruikers” are “non-permitted uses” of the malls. It will be noted that this provision strangely refers to actors as being uses. Nonetheless, Ms Leonard understood this part of the Guidelines to require the refusal of any application for a permit to preach or make political speeches in the malls. It may be accepted that religious spruiking is one form of preaching and that political spruiking is one form of public speaking but these activities do not cover the whole field embraced by the relevant parts of cl 12. There is, as a result, scope for an argument that, properly construed, the Guidelines do not, in terms, require the refusal of all applications for a permit to preach or speak publicly in the malls.

27    More fundamentally however, it may be doubted that the Guidelines, however construed, have any operation, under the Malls By-Law, to applications for permits under cl 12. The only reference to the issuing of permits in accordance with the Guidelines appears in cl 5 in Part 2 of the Malls By-Law. It contemplates that such a permit will be issued by the Manager Customer Service or a Customer Service Consultant. People holding these offices are not “authorised officers” for the purposes of the Malls By-Law unless they have been appointed as such by the Council or authorised in writing by its General Manager to exercise the role. There was no evidence that Ms Leonard had been so appointed or authorised. In the context of permits provided for in Part 2 of the Malls By-Law, the absence of such an appointment or authorisation is of no moment. This is because each of the clauses in that Part which prohibits conduct unless a person holds a permit contemplate that such a permit will be granted by somebody acting on behalf of the Council. There is no reason why Ms Leonard, as “Manager Customer Service” could not fulfil that role.

28    Part 3, however, is more specific about who may grant permits. In each case, including in cl 12, the permit (if the application is granted) is to be issued by an “authorised officer”. Implicitly it is the authorised officer who has the power to refuse applications. The Manager Customer Service is not such an officer and there is no mention of the Guidelines in Part 3. There is, therefore, no basis for finding that authorised officers were required to act in accordance with the Guidelines when determining whether or not to grant permits under cl 12.

29    As Ms Leonard’s reasons make clear she purported to refuse Mr Corneloup’s “application for a permit to preach.” She did so having regard to the Guidelines because she considered that this was required of her by cl 5 of the Malls By-Law. She considered that preaching was not permitted under the Guidelines and therefore refused to grant the permit. She confirmed, in evidence at trial, that this had been her approach. Given this evidence paragraph six of her reasons is not to be understood as a consideration of the possibility that the Guidelines should not be applied in relation to Mr Corneloup’s application but rather as an attempt by her to justify the prohibitions contained in those Guidelines.

30    In making her decision Ms Leonard erred in a number of ways. First and foremost she made a decision which she was not empowered to make. Her role, as decision-maker, was critical to the validity of the decision made by her. As Brennan J said in Re Reference under section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 93:

“An act done in purported exercise of a statutory power is valid if the act falls within the statutory provision which confers the power. Prima facie an act will not fall within the statute unless it be done by the person in whom the statute reposes the power …Validity is thus dependent upon the identity of the authority and the doer of the act.”

The impugned decision was made under cl 12 of the Malls By-Law. Ms Leonard was not an “authorised officer” for the purposes of that section. Her purported decision was, therefore, made without authority of the Malls By-Law and is of no force or effect. It should be quashed.

31    Ms Leonard compounded her principal error by making further mistakes when attempting to exercise the relevant power.

32    She had regard to guidelines which were not applicable to the type of permit which was being sought (although they dealt with preaching and public speaking). Even had the Guidelines been applicable to the exercise of the power to grant a permit under cl 12 of the Malls By-Law they would have been inconsistent with the By-Law because it contemplated that preaching and political addresses might take place in the malls if a permit were granted. She applied what she understood to be the Council’s policy, as expressed in the Guidelines, in an inflexible way without considering the possibility of granting the permit which was sought having regard to the particular circumstances raised by the application: see Elias v Commissioner of Taxation (2002) 123 FCR 499 at 506-7 (Hely J). Her resort to the Guidelines was also errant because it led her to have regard to a material and irrelevant consideration, namely, that preaching and public speaking were not permissible in the malls.

33    I am not persuaded that any denial of procedural fairness occurred by reason of the failure of the Council to provide Mr Corneloup with a copy of the Guidelines before making its decision. They were a publicly available document to which he could have obtained access had he wished to do so. More importantly, however, the approach taken by Ms Leonard meant that her decision was not influenced by any information, adverse to Mr Corneloup’s interests, about which he should have been provided with an opportunity to comment.

THE “CONSTITUTIONAL” CHALLENGES

34    In the Adelaide Corporation Case Mr Corneloup had argued that it was the relevant by-law, which restricted preaching in the Rundle Mall, which impinged impermissibly on the freedom to communicate on political matters. In the present proceeding he did not seek to challenge the Malls By-Law. His complaint was that the Guidelines, made under the Malls By-Law, to the extent that they identified “religious spruikers/hawkers” and “political spruikers/hawkers” as “non-permitted uses” of the Launceston City malls conflicted with the implied freedom. Had his complaint been pressed in these terms it would not have raised a constitutional question. The relevant question would have been whether the implied power, conferred on the Council, to issue Guidelines under the Malls By-Law and/or its power to issue permits under cl 12 of the Malls By-Law had complied with the implied limitation on those powers: see Wotton v State of Queensland (2012) 246 CLR 1 at 14 (French CJ, Gummow, Hayne, Crennan and Bell JJ). For the reasons which I have explained the Guidelines had no legitimate bearing on the outcome of an application of the kind made by Mr Corneloup for a permit to preach on political topics and were, in any event, ultra vires the Malls By-Law. As a result there is no necessity to pursue further this ground.

35    In this context it may be noted that, since Mr Corneloup made his unsuccessful application to preach in the malls, the Council has established a nearby speakers’ corner. Preaching and political speeches are permitted at this location. The availability of such a facility may well have implications for any future challenge on this ground: cf McCloy v New South Wales (2015) 325 ALR 15 at 31 and 33-39 where French CJ, Kiefel, Bell and Keane JJ discussed the issues of necessity and proportionality as they touch on the reach of the implied freedom.

36    Mr Corneloup’s other constitutional ground was pressed in reliance on s 46 of the Constitution Act 1934 (Tas). This section, which was introduced into the State Constitution in 1934, provides that “[f]reedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.”

37    Again, Mr Corneloup’s argument focussed on the Guidelines rather than the Malls By-Law. He claimed that, as a citizen, he was entitled to the “benefit” of s 46. Preaching was one aspect of the practise of his religion. The Guidelines prevented him from preaching in the malls and, as a result, contravened s 46(1) of the Constitution Act.

38    Given the inapplicability of the Guidelines it is not necessary to pursue this ground in any detail. Had it been necessary to do so Mr Corneloup’s argument would have confronted a number of difficulties. The first is that s 46 does not, in terms, confer any personal rights or freedoms on citizens. The qualified “guarantee” has been held to prevent coercion in relation to the practise of religion and to guarantee a freedom to profess and practise a person’s religion of choice: see McGee v Attorney-General [1974] IR 284 at 316 – a decision of the Irish Supreme Court on the equivalent provision of the Constitution of Ireland, Article 44(2)(1). There is, however, no authority to which I was referred which determines the practical effect of the “guarantee”. In particular, there remains an open question as to whether it could operate to render invalid provisions of other Tasmanian legislation (or subordinate legislation made thereunder), given that the Constitution Act is also an Act of the Tasmanian Parliament and s 46 is not an entrenched provision.

THE DISCRIMINATION CLAIM

39    Paragraphs (m) to (p) of s 16 of the Anti-Discrimination Act 1998 (Tas) prohibit direct or indirect discrimination on the grounds of political or religious belief, affiliation and activity by or against a person engaged in, or undertaking any, activity in connection with, the provision of facilities, goods and services. Section 3 of the Anti-Discrimination Act 1998 (Tas) defines “services” as including services “relating to access to, and the use of, any place that members of the public are permitted to enter” and services “provided by a State authority or a council.”

40    Mr Corneloup contended that the Guidelines discriminated against him to the extent that they prevented him engaging in “religious activity”. That activity was preaching in the malls.

41    These claims were but faintly pressed in argument. The evidentiary foundation for a finding of discrimination (either direct or indirect) was lacking and it may be doubted that the Council was supplying any relevant “services”.

DISPOSITION

42    A writ of certiorari should issue to quash Ms Leonard’s decision. Mr Corneloup also sought the issue of a writ of mandamus to require the Council to determine his application according to law. Such an order is appropriate. The Council should pay Mr Corneloup’s costs of his application.

Associate:

Dated:    19 August 2016