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Back to the (By-law) Basics – Lessons to be learned from Tasmania: Corneloup v Launceston City Council [2016] FCA 974 (August 30th, 2016)

A decision of the Launceston City Council (“the Council”) to refuse an application seeking permission to preach under its By-laws was recently scrutinised and quashed by the Federal Court of Australia. The case is relevant for South Australian councils as it reinforces the need to ensure that council decision-making occurs in accordance with administrative law principles. It is also a timely reminder of the legal (and pecuniary) consequences for councils where this does not occur.

The decision of the Federal Court followed an appeal by Mr Corneloup against the Council’s decision to refuse him a permit to preach. Readers may recall that Mr Corneloup previously challenged the validity of the provision of an Adelaide City Council By-law that restricts preaching and he pursued his challenge to the High Court. Mr Corneloup was ultimately unsuccessful in that appeal as the High Court held that the Adelaide City Council By-law provision was within the scope of the Council’s by-law making powers (you can read our previous LG Alert regarding the High Court case at http://www.kelledyjones.com.au/wp-content/uploads/2016/08/here.pdf).

The facts of the Tasmanian case are that Mr Corneloup applied for a permit under the Council’s Malls By-law (“the By-law”) to preach in the Launceston City Malls. The By-law regulates the use of the Council’s Malls and includes the following clause:

A person must not organise or participate in …. or engage in preaching or public speaking in a mall without a permit to do so issued by an authorised officer. (our emphasis).

Mr Corneloup was seeking permission to preach about “political matters related to the Christian world views such as creation/evolution, homosexuality, abortion … (and) other Christian teachings”.

The Council’s Manager Customer Service rejected Mr Corneloup’s application and notified him of both this decision and the reasons for the refusal. These included that the Council’s Guidelines relating to activities in the Mall (“the Guidelines”) list “non-permitted uses” as “religious spruikers/hawkers”, and “political spruikers/hawkers”.  The Manager Customer Service took the view that the Guidelines operated to prohibit preaching and public speaking about religious matters in the Council’s Malls and alone justified a decision to refuse Mr Corneloup a permit.

Mr Corneloup challenged the Council’s decision including because he asserted that:

  • it was based on the Guidelines that are inconsistent with the By-law; and
  • the Manager Customer Service inflexibly applied the Guidelines and took into account an irrelevant consideration, namely that preaching and public speaking were prohibited in the Malls.

Mr Corneloup’s lawyers also argued that the Manager Customer Service was not authorised to make the decision because she was not an authorised officer and the By-law expressly required a decision to permit preaching or public speaking to be made by an authorised officer.

The Court agreed with Mr Corneloup’s position that the prohibition against religious and political spruiking in the Guidelines was inconsistent with the By-law because clause 12 of the By-law (as above) expressly envisages that preaching can lawfully occur in the Malls where a permit is obtained.  The Court also found that:

  • the Manager Customer Service was not an ‘authorised person’ as defined by the By-law and, therefore, was not authorised to determine Mr Corneloup’s application; and
  • even if the Manager Customer Service was authorised for this purpose, the prohibition against religious and political spruiking in the Guidelines (upon which the Manager Customer Service based her decision) was an irrelevant consideration that further impugned the refusal.

For these reasons, the Court determined that the Council decision was invalid and ordered that it be quashed. The Court directed the Council to reconsider and determine Mr Corneloup’s application according to the law and to pay Mr Corneloup’s costs.

This case reinforces that the role of the decision-maker is critical in determining the validity of a council decision. It is essential to ensure that council officers who are charged with decision-making responsibilities (including those officers responsible for issuing permits under council by-laws) are properly authorised under statute or by the Council to exercise their decision-making powers. Decision-makers must also ensure their decisions are not tainted by irrelevant considerations.

Finally, the case is also a timely reminder regarding the role and application of council policies. It is important to recall that the role of a council policy is to guide decision-making only and it must not be inflexibly applied. Decisions based on a policy (such as the Guidelines) that purports to restrict the exercise of a discretion conferred by legislation or which is inconsistent with legislation, will not withstand legal scrutiny and must be avoided. It is always necessary for a decision-maker to have regard to and evaluate the circumstances and merits of a particular matter arising for decision and to depart from an applicable policy position where the circumstances warrant that occurring.

Please contact Cimon Burke at cburke@kelledyjones.com.au or on 8113 7105 if you have any questions in relation to the above.