Adelaide wins High Court appeal to move-on mall preachers

By Paul Hemsley

Adelaide City Council has finally won its controversial bid to force street preachers who proselytise in public malls to apply for official permits after taking litigation to defend the power of its by-laws all the way to the High Court of Australia.

The so-called City of Churches has been seeking to bring its flock of high-street sermonisers under the same regulatory umbrella as buskers, charity collectors and other mall dwellers to maintain order and decorum on downtown retail strips.

The High Court’s decision to uphold the power of the council’s bylaws is a significant precedent for local governments across Australia whose regulatory powers are being increasingly challenged from a range of interest groups.

Retailers who rely on passing pedestrian foot traffic have been particularly vocal about how public space is utilised because they stand to lose significant business if shoppers bypass them in order to avoid the attentions of religious groups.

The High Court’s decision comes after a substantial legal debate as to how far council powers may extend.

Adelaide City Council had previously created a by-law that covered canvassing, distribution of literature, preaching and “haranguing.” However, the District Court of South Australia found that certain portions of this by-law were beyond the power of council and ruled them unenforceable.

The council then appealed the matter to the Supreme Court of South Australia claiming that the District Court decision was wrong at law. Adelaide City argued that the limitations imposed on its powers to make by-laws by the District Court were “unnecessarily restrictive and inappropriate”.

Complaints from retailers and shoppers about “breaches of the by-law by some individuals” followed the council’s appeal to the Supreme Court of South Australia. However the Full Court of the Supreme Court reached the same decision as the District Court.

The real potential for councils to lose regulatory powers is something that South Australian Attorney-General John Rau clearly was not prepared to entertain. The state’s chief law officer subsequently mounted an appeal to the High Court of Australia, to which the Adelaide City Council was a respondent to the proceedings and supported the Attorney-General in his appeal.

The High Court upheld the validity of the council’s by-law regulating preaching, haranguing and the distribution of literature.

According to Adelaide City Council, the by-laws do not stop people from speaking their mind – rather it enables the council to permit the activity in “appropriate locations for the sake of others”.

Adelaide City Council chief executive officer, Peter Smith said the council pursued this action “vigorously” because the safety, enjoyment and comfort of shoppers and traders is “paramount”.

Mr Smith said that the High Court decision was not about “preachers per se” but the legality of the council’s by-laws.

“Everyone has the right to free speech – and we are fully supportive of that – we just want to make sure that they exercise that right in a respectful way,” Mr Smith said.

Local Government Association of South Australia (LGA) chief executive officer, Wendy Campana said the LGA is pleased that the High Court has upheld a council’s power to make by-laws that serve the “legitimate ends of regulating unsolicited communications on public land”.

Ms Campana said many councils had or have by-laws with similar wording to the by-laws adopted by Adelaide City Council.

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