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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-14 Daily Xml
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RUNDLE MALL

Adjourned debate on motion of Hon. S.G. Wade:

That by-law No. 6 of the Corporation of the City of Adelaide concerning Rundle Mall, made on 10 February 2011 and laid on the table of this council on 22 February 2011, be disallowed.

(Continued from 29 July 2011.)

The Hon. A. BRESSINGTON (20:10): I rise to indicate my support for the Hon. Stephen Wade's motion to disallow the by-law of the Adelaide City Council concerning Rundle Mall. The by-law seeks to prohibit a range of activities and require permits for a range of others.

Controversially, the by-laws again attempt to regulate and foreseeably ban preaching in Rundle Mall. This, on my reading of the Supreme Court judgement in the matter of the Corporation of the City of Adelaide versus Corneloup & Ors (2011), would again cut across our freedom of religion and infringe our recognised freedom of political speech implied in the constitution.

Although I can understand why the council is determined to regulate the preaching of some individuals, who through their own actions are at times their own worst enemy, I am genuinely uncomfortable with singling out preaching. For this reason, I support the disallowance.

The Hon. CARMEL ZOLLO (20:11): I rise to indicate the government's response. The government does not support this motion. The Local Government Act 1999 and the City of Adelaide Act 1998 set up a scheme under which the City of Adelaide has responsibility for administering activities within its area.

This by-law does not prohibit preaching or political speech. The by-law merely gives the council a discretion to attach conditions to a permit granted if a person or group wishes to preach in a particular area of the mall. These conditions are intended to minimise any disturbance or impact on people going about their normal, lawful business and to minimise the exposure that ratepayers might have to any financial risk.

I am advised that the council is apparently undertaking a review of this by-law, in conjunction with a review of its other by-laws, to ensure its lawfulness. This follows recent judicial attention on the subject of preaching. That being the case, the government believes that it is inappropriate for this chamber to move such a motion.

The Hon. S.G. WADE (20:13): I would like to sum up and, in doing so, express my amazement at the government's response. To make sure that my comments can be seen in context, I remind the council of the two quite distinct objections I have to this by-law—and when I say, 'I have', it is the opposition that has given me the authority to move this motion. We object to the by-law on two grounds. First of all, it discriminates against religious communication by requiring preachers to seek a permit when other communicators are not required to seek a permit. Secondly, it provides for broad, subjective offences in terms of offending and annoying people in the mall.

I can assume only that the Hon. Carmel Zollo has come to this chamber with a speech that was prepared at the end of July, pre the Supreme Court judgement in the Corneloup case, which was tabled on 10 August. Otherwise, how can one construe that the government would think that the Supreme Court would tolerate the permit provision in relation to religious communication? It has already severed or read down an analogous by-law that was put before the court at the end of last year. The court struck out the word 'preach'; it was by-law No. 4, in relation to roads. This council should have every expectation that the court would do exactly the same with by-law No. 6.

The Attorney-General, presumably, is considering whether or not the government will join the Adelaide City Council and whether they will jointly go to the High Court to appeal against the Corneloup case. If the Attorney-General is pinning his hopes on the fact that, somehow, we can retrieve the opportunity to do permits for religious preaching, I think he needs to read the judgement again.

It is very clear from the judgement of Justice Kourakis that the court is very committed and, I should say, is supported by Chief Justice Doyle and a brother judge. It is a very clear case that the implied constitutional protection of political communication is taken by the courts to also cover religious communication with political aspects. I can assure hopeful members of the government that you can be assured that every religious sermon delivered in Rundle Mall will now have some aspect of political contribution to make sure that it attaches the constitutional protection.

I think it is a naive assertion from the government that we should not interfere in a council by-law which clearly breaches a constitutional protection provided by the government, and is, I believe, religiously discriminatory. If it applies to all political communication, then why does it mention preaching? Why does it not talk about the public address or communication of general ideas? I am very disappointed. For a government which prides itself on respecting the Christian heritage within our community to come up with a pathetic argument such as the Hon. Carmel Zollo was forced to deliver today is very disappointing.

I can only conclude by saying I appreciate the contributions of members to the debate and I thank them for that. I appreciate the indications of support from a number of members. I would indicate that I do not support the perspective of the Hon. Kelly Vincent. She said that she would not be supporting the disallowance on the basis of assurances from the Adelaide City Council on the way that the by-law will be implemented. I respect her position not to support my disallowance, but I do not believe that we should rely on an assurance from the council that it would not apply the by-law unfairly. It applies to preaching; it does not apply to other communication; it is inherently unfair.

I think it is important for us to acknowledge the need for the council to revise the by-law and ensure that a new by-law or by-laws put in place a robust and effective regime which respects the rights of South Australians to religious and political communication and the rights of South Australians to use Rundle Mall as a family retail and recreation precinct. The fact that the government does not even realise what the problem is is an extremely distressing thought. After all, Rundle Mall is a key state asset, our largest retail precinct. We need to respect the investment of businesses large and small, in terms of capital, time and effort. I am very disturbed about reports of businesses losing thousands of dollars as business tries to deal with disorderly preaching and related protests.

Today I met with representatives of the Rundle Mall Management Authority to talk about how we can move forward and I appreciate the optimal response is likely to be an interaction of state law and council by-laws and a blend of police enforcement and council officer enforcement. I am very concerned about the conflict in the mall between the street preachers and the Love not Hate group. I think there is a real risk of violence. Freedom of speech is not the right to drown out other people exercising that right. Not only that, but the behaviour undermines the amenity of the mall, the operation of businesses in the mall and public safety.

There needs to be active cooperation between the police and the council to maintain public order. Having discussed the issues with stakeholders and particularly with members of the authority today, I am convinced that we need to have a cooperative approach to address this issue. I believe the council needs to come back with strengthened by-laws as soon as possible. It is not acceptable for the council to wait the year or two that it will take for any High Court appeal to be resolved before police and council officers are given appropriate tools to manage the mall.

We also need to make sure that state law in relation to assault and trespass are appropriately applied. I urge the council to make a clear statement about our commitment to religious freedom and for respect for constitutional rights, and in that context to support this disallowance motion so the council can get in and start making good law.

Motion carried.

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