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Gelber, Katharine --- "Political Speech Practice in Australia: A Study in Local Government Powers" [2005] AUJlHRights 7; (2005) 11(1) Australian Journal of Human Rights 7


Political speech practice in Australia: a study in local government powers

Katharine Gelber*

This paper seeks to remedy in part the lack of empirical studies on practices of political speech in Australia by investigating local governments’ powers and perceptions of their role in regulating practices of political speech. It reports on the results of an empirical study conducted in 2003–04 of local government (that is, council) regulation of political speech within the public space constituted by pedestrian malls. Regulatory provisions are considered in the context of attitudes towards, and experiences of, practices of political speech within these arenas. I argue that local governments possess wide ranging powers to regulate political speech in pedestrian malls, but further and more importantly that those powers are mediated via their inconsistent and at times arbitrary application, combined with a cultural hostility to political speech. We therefore see a precarious level of protection of opportunities for political communication, as well as an important politico-cultural component in determining the fate of political speech in Australia. I conclude by outlining an alternative ‘enabling principle’ against which local governments may reconsider and reconfigure their regulatory practices in relation to this important political freedom.

Introduction

Why does the City of Sydney prohibit the pursuit of ‘any ... calling’ or ‘any ... act which may cause inconvenience ... to others’ in Martin Place? What does this tell us about how councils perceive their role in regulating public behaviour? Do these kinds of provisions render public activities overly vulnerable to council mediation?

Free speech1 is an area of research of direct relevance to democratic governance, yet it is also an area in which Australian scholarship is relatively limited. In Australia, the theme of freedom of political communication has risen in prominence since an implied freedom of political communication derived from the constitutional framework began to be developed by the High Court in 1992.2 Since that time, freedom of political speech has tended to be examined from legal perspectives, including the limits and implications of the High Court doctrine (Chesterman 2000a; 2000b); the relationship between the constitutional freedom and the common law (Stone 1998); the viability of deducing a limited freedom of political communication from the Constitution (see, for example, Aroney 1998); and whether the High Court overstepped the mark in deducing the existence of the implied limitation (see, for example, Campbell 1994; Coper 1994). One area that remains under-explored is the way in which the notion of political speech plays out in terms of government policies towards the preservation of, or non-interference in, practices of political speech freedoms.

This article seeks to remedy that gap in part, by investigating local governments’ perceptions of their role in permitting or restricting this important political freedom. Specifically, the article reports on the parameters within which political speech can be engaged in the public space constituted by pedestrian malls in Australia and regulated by local government. This investigation presupposes several things. The first is that freedom of speech is, indeed, important. An enormous range of scholarly literature exists arguing this point (for example, Schauer 1982; Barendt 1987; Post 2000; Dworkin 1977: 269–73; Smolla 1992). It is important to recognise the underlying presumption of this article that free speech is worth protecting, and that the arguments justifying this are not all or always liberal or libertarian in character.3 The second presumption is that it makes sense to speak of ‘political speech’. I am researching elsewhere the viability of this category of speech, but for the purposes of the argument here it is sufficient to acknowledge that the idea of ‘political speech’ is widely used and that its use in the context of this study is defined below. A correlative presumption related to both of these is that political speech is regarded as especially deserving of protection in free speech literature due to its importance to the democratic deliberation of public affairs (Barendt 1987: 146).

In Australia, political speech is regarded as important but is not absolute. The implied constitutional freedom is viewed as an implication from the form of representative and responsible government established by the Constitution and operates as a freedom from government restraint, rather than a right conferred on individuals (Patapan 2000: 51–9; Williams 2002: 165–97; Stone 1998: 2001; and Gelber 2003: 23–32). It is limited to ‘political communication’, usually understood as discussions relating to matters that might have a bearing on federal politics, although the exact parameters of this term remain contested (see Chesterman 2000b), and it includes non-verbal expression.4 However, an expression that constitutes political communication is not automatically protected. Governmental restrictions are permitted where they occur as a result of a law that is appropriately adapted to achieving another legitimate government end (Gelber 2003: 31, 44). Political speech is therefore vulnerable to incursion and it is important to try to uncover the ways in which this might occur.

Empirical observations of political speech practices are also important because, as Rosenberg and Williams point out, they lend weight to an understanding that practices of free speech take place in contexts that are more complex than those suggested by simplistic free speech versus regulation binary choices (Rosenberg and Williams 1997: 459). In other words, even where overt regulation does not exist, this does not mean that speech is necessarily free, but rather that it is moderated and limited by other forces.5 This study seeks to uncover the interaction between regulations and politico-cultural attitudes towards political speech, which, taken together, provide a snapshot of the fortunes of freedom of political speech at a local government level.

The article proceeds as follows. I first consider why pedestrian malls might be an important arena within which to consider the question of political speech practice. The bulk of the article is then concerned with reporting on empirical data derived from a study conducted in 2003–04 of local government (council) regulation of political speech within pedestrian malls. Local government is a powerful yet often overlooked level of government within the Australian polity.6 The research identified local laws, by-laws, regulations, development control plans and policy documents with clauses relating to ‘political speech’ within pedestrian malls. Results from these data are then considered in the context of practices of political speech within the same arenas.

I argue that local governments possess wide-ranging powers to regulate political speech in pedestrian malls.7 Further, the ways in which those powers mediate practices of political speech vary considerably between and even within local government areas. Perhaps even more importantly, the ways in which councils mediate practices of political speech depend in large part on the individual discretion of the person with whom someone wishing to engage in political speech comes into contact. Inconsistency in policy is compounded by individual discretion in the administration of relevant policy and an apparent lack of awareness of the importance of political speech. We therefore see both a precarious level of protection of opportunities for political communication, as well as an important politico-cultural component in determining the fate of political speech in Australia. In a political culture devoid of an express constitutional or statutory free speech protection, this is of concern. I conclude by outlining an alternative, enabling framework against which local governments may begin to reconsider their regulatory practices in relation to freedom of political speech.

What’s so special about pedestrian malls?

To what extent is it true that, ‘for the most part, the free speech tradition can be understood as protection of the street corner speaker’ (Fiss 1996: 12)? Owen Fiss speaks here of a tradition derived in large part from the US First Amendment experience, but there is arguably a broader resonance in his claim. That is that the ideal of free speech developed in the context of broader liberal arguments about minimisation of state regulation and maximisation of individual freedom. In this context, the ideal type of speech deserving of protection from regulation is that of a person standing on a soap box, or handing out leaflets, demanding something or other in a public place from the community of which he or she is a member or from the political planners and policy makers who regulate it. Although Fiss recognises that in contemporary societies the street corner has become a marginalised place of political (inter)action, in favour of other forums such as media and television, nevertheless the idea remains embedded in liberal-democratic consciousness that a lone figure agitating on a street corner is the exemplary and quintessential political activist.

In elucidating this idea, Fiss discusses how the street corner can be analogised to other similar public forums in contemporary society, including bus terminals, airports, post offices and shopping malls (above: 50). He then demonstrates how US Supreme Court First Amendment jurisprudence has, despite early indications that it would protect such public arenas for political activities, moved increasingly since the 1970s towards upholding regulations and policies that impinge seriously on freedom of speech in these kinds of places (above: 51–63). Sunstein agrees that although the US Supreme Court has tended to maintain public access to streets and parks,8 other areas not normally considered by tradition or practice to be public spaces — including government property — may be closed off (Sunstein 1995: 101–2). This means that ‘new’ public spaces, such as airports, often do not qualify as public spaces where speech may be free. Sunstein criticises this approach as anachronistic, arguing that technological and urban changes have extended the areas that ought now to be considered freely accessible public space.

In Australia in the latter part of the 20th century, pedestrian malls began to be created — usually out of previously existing public roads. Their origin lies therefore in public, as opposed to private, space. Typically, a pedestrian mall was created by closing a road, paving it over, prohibiting normal vehicular traffic and providing seating and other public amenities. In converting these roads into pedestrian focused public space, they have become sites of multiple and contested purpose, including the commercial activities of the retail shops that line them and the unstructured recreational pursuits of (often, but not exclusively, young) people who populate them day and night.

This produces disagreements over whose use and access should be granted priority. Where a pedestrian mall is regarded as primarily commercially oriented, privatised space, then the kinds of regulations outlined by Fiss as applying in shopping malls9 and airports in the US would be expected to be applicable. However, Mattson argues that in the US some citizens have challenged the idea that even shopping malls are private commercial space and have ‘decided to treat it as public space’10 (Mattson 1999: 135). Where a pedestrian mall is regarded primarily as open, public space, it is analogous to a street corner. Indeed, it could be perceived as a site even more conducive to the typical street corner activities of political activists than streets themselves, since the footpath on a typical street is relatively narrow and pedestrian traffic (and possibly public safety) thereby more easily impeded. A pedestrian mall is designed for pedestrian traffic, and arguably therefore is the perfect ‘street corner’ for contemporary conditions.11

For the purposes of this study, a pedestrian mall is defined as a former road that has been transformed into an open air mall, thereby excluding normal vehicular traffic in favour of pedestrians and open public space. This is differentiated from shopping malls, which are defined here as enclosed buildings built for the primary purpose of facilitating commercial transactions and which are typically privately owned and managed. Regulations within shopping malls have not been considered here for this reason and also because it is not possible to obtain comprehensive information on the governance of such spaces. The outdoor, public street origin and nature of pedestrian malls in Australia renders them arguably more susceptible to a study of the protection of freedom of political speech than a purpose-built, commercially oriented, indoor, enclosed shopping mall.

Pedestrian malls: a national study

Limitations of the study

It is impossible to detail every kind of federal, State/Territory and local government law, by-law and regulation that might conceivably impact on freedom of political speech in pedestrian malls. A wide variety of laws regulates public behaviour and assists in the maintenance of public order, often in ways that are difficult to assess quantitatively. For example, an important recent High Court free speech case, Coleman v Power, turned on the validity of a section of the Vagrants, Gaming and Other Offences Act 1931 (Qld). Moreover, some aspects of political speech freedoms are protected (or limited) in each State and Territory by laws relating to public assembly,12 which either enable or restrict the holding of political protests subject to certain conditions — including applying for a permit. These laws tend to cover organised, larger scale demonstrations and political protests. By contrast, the regulations reported on in this paper mediate opportunities for more spontaneous, less organised and smaller scale types of political speech activities, because these are the activities captured within local government jurisdictions. The States’ local government Acts grant the power to local governments to enact by-laws (also called local laws) and implement regulations for the management of their local government area (except in the ACT, where no local governments exist). These statutes tend to be of a general character13 and thus are not specifically relevant to the research reported on in this article.

In this study, I have researched the extent and manner of local governments’ regulation and mediation of ‘political speech’ in pedestrian malls. ‘Political speech’ was defined and identified by including, where relevant, any specific mention of ‘political speech’ or election campaigning. Where the by-laws or regulations did not specify either of these two categories, specification of rules for, or limitations on, public speaking,14 the handing out of pamphlets/leaflets or the setting up of impromptu and small scale campaigning/political stalls (as opposed to commercial stalls for the selling of wares) were identified. The traditions of public speaking, handing out pamphlets and setting up stalls common to politically communicative activities in pedestrian malls mean that these regulations could potentially be used to regulate political speech.

Despite definitional difficulties, jurisdictional limitations and regulatory complexities, the results of the study are informative and perhaps surprising. Some indicative quantitative results will be provided to give a sense of the number of pedestrian malls studied and the kinds of regulations in existence. However, the appropriate framework for overall consideration of the results is qualitative. These results tell us something about the kinds of regulations put in place and still in operation in pedestrian malls at the time the study was conducted, and the ways in which political speech practice is mediated by them. Since the findings are differentiated between malls, valid implications cannot be drawn from statistical or numerical results. Rather, closer examination of those malls which provided evidence of particularly interesting or challenging modes of regulation of political speech gives some indication as to the framework within which political speech is practiced in Australia, and attitudes towards this important political freedom.

Method

A national audit was conducted of by-laws regulating pedestrian malls, a population of 105 malls. A breakdown of the total number of pedestrian malls studied by State and Territory appears in Table 1.15

Table 1: number of pedestrian malls studied

State or Territory No of malls

ACT 6

NSW 40

NT 6

Queensland 12

SA 3

Tasmania 5

Victoria 25

WA 8

Total 105

Hard copy versions of regulations were publicly available in relation to 72 of the malls. A further 33 were not governed by publicly available regulations, but in many of these instances personal communications by telephone with representatives of the relevant councils provided further relevant evidence that has been included in the reported results. Where regulations do not exist, this does not imply a generous policy in the sense of permitting a great degree of licence in political speech activities allowed within the pedestrian mall. Sometimes this was the case and a local government authority said it did not possess regulations because, for example, ‘we like to be pretty free and liberal’ (Bankstown City Council (NSW) 2004, pers. comm., April) or ‘we wouldn’t see that [kind of political speech activity] as a big issue’ (Sydney City Council 2005, pers. comm., April). However, some other councils, despite the lack of written regulations, nevertheless required people to apply in writing for permission to undertake political speech activities. For example, Liverpool City Council (NSW) required people wishing to hand out political leaflets in a mall (the hypothetical example discussed by telephone was Greenpeace) to write requesting permission. This permission would normally be granted subject to conditions, including not harassing members of the public. The Council also stated, when considering the example of politicians wishing to speak in the mall prior to an election, that requests for public speaking on political issues would be deliberated by council management and would not generally be allowed (Liverpool City Council 2004, pers. comm., 27 October).

In several instances, the regulation of pedestrian malls has been transferred into the operations of opaque and unaccountable bodies and no regulations are obtainable. This has occurred in relation to the regulation of Charlestown Mall in Lake Macquarie (NSW), which has been transferred to LJ Hooker, a real estate company; Ashfield Mall in Sydney, which is overseen by a Mall Centre Management and for which no regulations appear to be obtainable; and Norwood Mall in the City of Norwood, Payneham and St Peters (SA), for which regulations are not publicly obtainable. These cases raise serious questions of accountability and transparency in governance. For example, LJ Hooker stated in relation to Charlestown Mall that although permission might be granted for political speech activities subject to the lodging of a written application, it was not possible to divulge the determinants to which such an application might be subjected (LJ Hooker 2004, pers. comm., 27 October).

Where regulations are obtainable, they are located in highly disparate places. Some are by-laws specific to each mall, such as the Hawkesbury City Council’s (NSW) Windsor Mall Regulations (2002). Some councils utilise a mall related local by-law, such as the Townsville City Council’s (Qld) Local Law No 39: Pedestrian Malls or the Ballarat City Council’s (Vic) Community Local Law No 5. Others are regulated in the context of road by-laws, displaying their origin as vehicular thoroughfares. For example, Elizabeth Street mall is regulated by the Hobart City Council in its Highways By-Law, By-Law 3 of 1997. Finally, some regulations are to be found in general public amenity/public space regulations, such as the Shire of Exmouth’s (WA) Activities on Thoroughfares and Trading in Thoroughfares and Public Places Local Law.

Summary of results

In those regulations that could constrain political speech, typical form-based limitations include the prohibition of, or the imposition of restrictions and permit requirements on, the distribution of pamphlets (or similar written matter), the setting up of temporary stalls, public speaking (also referred to as haranguing, preaching, declaiming or delivering an address), addressing gatherings of people, election campaigning (in relation to local, State or federal government elections or referenda) or, in the most severe cases, ‘any activities’ at all that might convey a message to a bystander or inconvenience other people within the mall. A summary of the number of malls in which these activities are restricted appears in Table 2.

Table 2: form-based regulations

No of regulations Pamphlet Temporary Public Election ‘Any’ activity distribution stall/booth speaking, campaigning addressing public gatherings

Prohibited 11 5 8 3 0

Permit required 26 48 29 6 20

Total 37 53 37 9 20

These figures reveal a large proportion of pedestrian malls in which political speech activities are restricted as a matter of course. Between 37 and 53 malls regulate pamphlet distribution, the use of temporary stalls and public speaking, while a further 20 regulate any activity at all that could be considered political speech. Thus, between 57 (54 per cent) and 73 (69.5 per cent) malls regulate or prohibit political speech freedoms as a normal part of their regulatory frameworks.

Permits

Typically, individuals wishing to undertake these activities are required to lodge a written request for a permit, usually accompanied by a small fee. However, some councils also require the securing of public liability insurance in amounts of up to $10 million. Requests for permits are required to be lodged between 48 hours (the City of Newcastle (NSW))16 and seven days (Kempsey Shire Council (NSW))17 before an event is to take place. Councils have the power to refuse a request for a permit, and the grounds on which a refusal can be made are typically not specified in the regulations, or are vague. For example, Brisbane City Council can refuse an application for a permit in its discretion18 and Townsville City Council (Qld) may grant or refuse a permit or subject a permit to ‘such conditions as the Council shall think fit’19 and the by-laws place no obligation on the council to provide reasons for its decision, nor is it required to conform to specified guidelines or standards in making its determination. Lack of specificity regarding the grounds upon which a council may refuse an application featured regularly in the regulations, occurring for example in relation to Palmerston City Council (NT),20 Tennant Creek Town Council (NT),21 Brisbane City Council,22 Ipswich City Council (Qld),23 Ballarat City Council (Vic)24 and Nillumbik Shire Council (Vic).25

The requirement to obtain a permit in advance of engaging in political speech activities could be seen as amounting to ‘prior restraint’ on political speech. Rather than allowing individuals to speak and then dealing with the consequences after the fact, these regulations tend to promote the idea that individuals wishing to engage in political speech activities must plan to do so in advance. This arguably limits opportunities for spontaneous responses to topical events, and could be construed as inconsistent with a premise of free speech doctrine against prior restraint (Dworkin 1992: 55). However, it has also been argued that hostility to prior restraint is a phenomenon particularly suited to the constitutional jurisprudence of the US and that in other contexts, such as in Britain, one can perceive that a differentiation between prior restraint and ex post facto regulation is not always of practical significance. This is because prior restraint is not always in and of itself a worse infringement of free speech than ex post facto regulation (Barendt 1987: 114 and ff). Indeed, a regulatory environment that kicks in prior to a speech event might even be capable of ensuring that once permission to speak is obtained, a person’s right to speak is guaranteed and is virtually unassailable (all other things remaining the same). Nevertheless, in this instance it can be argued that the regulatory environment impedes opportunities for, and thus simultaneously reveals a prejudice on the part of local governments against, spontaneous political speech activities. This is important in the context of further evidence revealed below regarding local governments’ attitudes towards political speech activities.

Regulatory and cultural hostility to political speech

Typical regulatory frameworks include the Brisbane City Council, which administers Queen Street, Chinatown and Brunswick Street Malls and requires individuals to obtain a permit to distribute ‘any written matter whatsoever’; to ‘preach, declaim, harangue or deliver an address of any kind’; to set up a stall; or to hold a public meeting. The Gold Coast City Council (Qld) requires a permit for stalls, public demonstrations or a public address.26 Ipswich City Council (Qld) requires a permit for stalls or to take part in any public demonstration or address, or to use anything in conjunction with such activities.27 The Launceston City Council (Tas) requires a permit to hold a stall, distribute any written material, engage in public speaking or organise a public assembly. Anything that will ‘obstruct, hinder or annoy any member of the public’ is prohibited.28 In conversation, the Council stated that it would not permit political activities, because they ‘create conflict and we can’t allow that in the mall’ (Launceston City Council 2004, pers. comm., April). These comments also reveal an operative presumption that political speech is inherently offensive, inconvenient or disturbing to members of the public who would prefer to be left in peace and quiet, an assumption that could not possibly be correct given the huge range of expressive activity captured by the conception. Undoubtedly, some expressions considered political might be offensive, inconvenient or disturbing to others, but this does not mean that all political expression is, or that a presumption ought to operate that all of it is, or that an automatic regulatory response to political speech ought to be to foreclose opportunities to engage in it, even where and when it might be offensive or disturbing to others. This is especially the case if the presumption outlined above that political speech is of particular importance and deserves particular protection is to be maintained.

Council officers when contacted during the study often expressed comments reflecting an ungenerous attitude towards political speech freedoms. For example, Wollongong City Council (NSW), which administers Crown Street Mall, stated that they ‘don’t want people doing those kinds of things, that’s going too far for us’. The Council cited as an example that they had previously prevented activists from handing out condoms to passers-by on World Aids Day (Wollongong City Council 2004, pers. comm., 28 October). Liverpool City Council (NSW), which manages Macquarie Mall, stated that if individuals wished to hand out leaflets they could request permission — which would likely be granted, subject to limitations such as passers-by not being harassed. However, requests for public speaking are usually declined and the example provided was a request by politicians to speak prior to a recent State election, which had been declined by the general manager of the Council. This Council said that it tended to allow community-type events, ‘but not political ones’ (Liverpool City Council 2004, pers. comm., 27 October). Whitehorse City Council (Vic) advised in relation to Box Hill Mall that they ‘discourage political use of the mall’, although they ‘can’t stop people handing out brochures’ (Whitehorse City Council 2005, pers. comm., February). This attitude is interesting because it appears to contradict the explicit regulatory provisions in the relevant local law,29 which allow individuals to apply for a permit to conduct a stall or distribute ‘any printed material’.

Some councils prohibit the distribution of pamphlets and/or political speaking outright. For example, Hawkesbury City Council (NSW), which administers Windsor Mall, requires a permit to be obtained at least 14 days in advance for ‘any activity in the mall’. This Council requires all entertainment and displays to be ‘acceptable to current community standards’, giving the Council permission to refuse applications it considers ‘unsuitable’. Its guidelines state that ‘no pedestrian is to be harassed by advertising, religious, political or commercial messages — either written or spoken or electronic messages’.30 Darwin City Council’s procedures for applying for a permit to distribute handbills and posters expressly prohibit their distribution in the mall.31

In 20 of the malls studied (19 per cent), any activity to be undertaken in the mall required a permit. In Rundle Mall in Adelaide, a permit is required to ‘distribute anything to any bystander, passer-by or other person’, or to ‘convey any advertising, religious or other message to any bystander, passer-by or other person’.32 Wyong Shire Council, which administers the Entrance Town Centre (NSW), stated by telephone that such activities previously were not permitted at all, but they are developing a new policy to allow for applications for permits (Wyong Shire Council 2004, pers. comm., 23 November). Cairns City Council (Qld) expressly prohibits ‘touting for ... support in any election or referendum’ in a mall.33

Some regulations specifically mention the term ‘political’ in their regulations, although this occurs in a small number of cases. Those already discussed in which the mention of ‘political’ speech activities is particularly restrictive are Windsor Mall, Hawkesbury (NSW); Macquarie Mall, Liverpool (NSW); and Crown Street Mall, Wollongong (NSW). A further four regulations are similarly restrictive. The first of these is a regulation by Hobart City Council (Tas) of Elizabeth Street Mall, which provides that ‘a person must not conduct, take part in or attend a meeting to discuss, protest or speak on any political matters or issues in a Mall’.34 A ‘meeting’ (presumably one that does not fit the description of a ‘political’ one) is only permitted with a permit.35 The second is Greater Shepparton City Council’s (Vic) regulation of Maude Street Mall, which specifies that its local law applies to ‘all activities of a religious, charitable, education, political, social and recreational nature’ and requires that people obtain a permit to take part in any public demonstration or address, utilise a temporary stall or distribute any handbills.36 The third concerns Gold Reef Mall, Northern Grampians (Vic), which requires a permit for a demonstration or meeting or gathering on a road, or for the distribution of ‘any handbill, pamphlet, political leaflet, paper or like material’ or to ‘preach, declaim, harangue or deliver an address’.37 The fourth is a regulation for Hunter Mall in Newcastle (NSW), which requires individuals to obtain a permit to conduct public meetings, gatherings, addresses or ‘political promotions’ at least 48 hours in advance.38

Atypical enabling provisions

By contrast, a small number of other councils encourage the use of the mall as public, political space. For example, Canterbury City Council (NSW), which administers Anzac Mall in Campsie, requires a permit to hold a temporary stall but notes that one will only be provided to bona fide political or community organisations. The Council also regularly organises political speech activities in the mall, citing examples such as International Women’s Day, Seniors Week and NAIDOC (National Aboriginal and Islander Day Observance Committee) Week.39

In some malls in which the regulations specifically mention the term ‘political’, the express provisions are designed to facilitate some forms of political speech, particularly speech relating to election campaigning. Examples that favour some forms of political speech include Anzac Mall, Campsie (NSW), in which activities are granted approval only if conducted by ‘bona fide charities, religious groups, political parties and community organisations’;40 Church Street Mall, Parramatta (NSW), which expressly provides for the handing out of flyers by political groups, the holding of indigenous ceremonies and other ‘political’ activities with a permit;41 and Cronulla Plaza, managed by Sutherland Shire Council (NSW), the use of which by ‘political parties’ is expressly provided for in separate Conditions of Use. These conditions allow for the handing out of pamphlets and leaflets, asking distributors to exercise discretion to help prevent litter problems.42

Exemptions for elections/referenda

Some local governments expressly exempt election and referenda-related activities from their otherwise restrictive regulatory frameworks, in a (perhaps unconscious) embodiment of the premise that political speech is especially important to democratic deliberation, and that speech that directly impacts upon voters’ choices in an election or referendum is probably the clearest example of political communication that ought to be protected by the implied freedom. For example, in Ballarat (Vic), a requirement to obtain a permit to distribute handbills on roads is exempted for electoral material on polling days, although delivering a public address is not exempted from the permit requirement.43 In John Street Mall in Salisbury (SA), a permit is ordinarily required to ‘preach or harangue’ or ‘convey any advertising, religious or other message’ to any person. However, ‘any message or material conveyed for the purpose of a Local, State or Federal election’ is exempted.44 Johnstone Shire Council’s (Qld) administration of Cancutter Court requires a permit to be obtained for a stall or booth, but exempts from this requirement stalls or booths for ‘political purposes’ or used in connection with an election.45 In Townsville City Council’s (Qld) regulations relating to two malls, a booth to be used for the purposes of election campaigning is exempted from the normal requirement for a permit to ‘take part in any public demonstration or public address’.46 The exemption for election campaigning is important, since recently in the High Court, when special leave was refused regarding an appeal against a conviction under Townsville’s provisions that had been upheld in the Queensland Supreme Court,47 it was argued by Gaudron J that this exemption rendered Townsville City Council’s regulations consistent with the implied constitutional freedom of political communication (Gelber 2003: 36). This is an example of a restriction on political communication remaining constitutionally valid in the context of the implied constitutional freedom.

Implications

There are several interesting implications to be drawn from these results. These will be outlined below as:

• the extent and types of council powers to regulate political speech;

• arbitrariness and a lack of consistency in knowledge of the regulatory framework and its application to incidences of political speech; and

• dissonance between the practices of local governments in their responses to instances of political speech and their powers derived from regulatory frameworks.

I will deal with each of these issues in turn.

The extent and types of council powers

Local governments clearly have a wide discretion to initiate and maintain regulatory frameworks that interfere with and restrict political speech activities in many ways. In most malls in Australia, councils have considerable powers to limit, restrict or prohibit political speech activities. The mechanisms used to achieve this are wide ranging and diverse.

First, the regulations tend to favour restriction rather than freedom. Between half and two-thirds of all malls are governed by regulations restricting political speech.

Second, the regulations often specifically restrict political speech types of activities, such as distributing handbills, holding stalls and engaging in verbal political expression.

Third, the conditions under which permits are granted tend to be less than transparent. Councils seem to have very wide ranging powers to refuse permits, on often unspecified or broad grounds as cited in relation to numerous local governments above.

Fourth, and in a related point, this regulation takes place within a context of overt hostility towards political speech activities, expressed both in the regulatory terms already discussed and in cultural attitudes. A further example of regulatory hostility to political speech is that delivering a public address is often placed in the same category as ‘preaching’, ‘haranguing’ or ‘harassing’ others. Examples of hostile cultural attitudes from council officers include Wollongong City Council (NSW) regarding a World AIDS Day event as ‘going too far for us’; Liverpool City Council (NSW), which does not generally allow political events; Cairns City Council (Qld), which prohibits the use of the mall for the touting of votes or support in elections and referenda; and Whitehorse City Council (Vic), which states that they ‘discourage’ political use of the mall.

The most common grounds provided by councils for their level and type of regulation were the maintenance of pedestrian flow, public safety and litter. Yet the results presented here show that many councils see their mandate as moving well beyond these potentially legitimate concerns. Furthermore, in this context it is more than likely that these concerns provide a convenient excuse where and when the council wishes to intervene to restrict political speech that does not impede pedestrian flow, pose a risk to public safety or contribute to litter. Many of the examples cited above would encompass activities that do none of these things, yet such activities remain vulnerable to restriction and prohibition. That councils see the restriction of political speech as their prerogative or their mandate, and as taking precedence over the maintenance of public space conducive to civic engagement via political speech activities, is noteworthy and of concern.

Arbitrariness and lack of consistency

Not infrequently, local government officials appeared to lack knowledge regarding the existence and/or content of their own regulatory frameworks. Sometimes, after hard copy regulations were located, they were found to contradict verbal information received from the council in question. This meant that a significant degree of confusion existed and derived from incomplete and inconsistent levels of knowledge of the regulations among officers of the councils. This is of particular concern in the one-third of malls for which hard copy regulations were unobtainable, as it means that transparency in local government powers to regulate political speech is lacking.

Added to this, often council officers reported a belief that individual discretion (on the part of rangers or of administrative or managerial staff) would be decisive in relation to the regulation of public behaviour in pedestrian malls. This occurred, for example, in relation to Strathfield Square, administered by Strathfield Municipal Council (NSW), which stated that whether or not a few people handing out leaflets would be permitted would be up to the rangers, and the council’s primary concerns are the maintenance of public safety and pedestrian access (Strathfield Municipal Council 2004, pers. comm., 27 October). There is also inconsistency between local governments within the same State, which means that some local governments impose very restrictive requirements while others are liberal in their approach. When as fundamental a freedom as political communication is at stake, arguably this variation is of concern.

A further problem of inconsistency relates to the enforcement of regulatory frameworks. For example, Townsville City Council (Qld), stated in an interview that its application of local laws to the activities of a student activist was intrinsically related to that individual’s personality and actions (Townsville City Council 2003, pers. comm., 3 July). This reveals a tendency to see the regulatory frameworks as granting the power to local governments to intervene against particularly inconvenient members of the public, rather than as powers based on transparent principles in relation to an important freedom.

A combination of a lack of hard copy regulations, a lack of knowledge as to the content of existing regulations, a reliance on individual discretion in decision-making regarding the appropriateness of behaviour in pedestrian malls and an underlying presumption that political speech activities are inherently inconvenient to others appears to render political speech freedoms particularly vulnerable to individual and hence arbitrary control. Regulations are inconsistently worded; inconsistently interpreted; and inconsistently and arbitrarily enforced.

Dissonance between practices and powers

A final issue raised by this study is that of the dissonance between councils’ stated (verbally or in written form) policy and the practice of political speech activities in those malls. Some particularly harsh regulations that have been identified include Macquarie Mall, Liverpool (NSW); Rundle Mall, Adelaide (SA); Hunter Street Mall, Newcastle (NSW); and Crown Street Mall, Wollongong (NSW). These malls are regulated in ways that suggest a restrictive attitude towards political speech activities. Yet in practice, issues of political speech are more contested than the regulations imply.

Organised political activities — the kinds that would normally lend themselves to advance planning and thus ease of notification to council, rather than spontaneous expressions of political speech — do take place regularly in even some of those malls with stringent regulatory frameworks. In October 2004, a Refugee Week Street Festival was held in Macquarie Mall (Liverpool Leader 2004a) and in July 2004 NAIDOC week was celebrated with a procession through the mall followed by an official flag-raising ceremony (Liverpool Leader 2004b). In May 2001, a reconciliation event in Adelaide included an indigenous performance in Rundle Mall (Wordley 2001). Newcastle’s Hunter Mall has been the venue for an Animal Liberation stall to collect signatures on a petition (Corbett 2003), a day promoting People with a DisAbility (Newcastle Herald 2002); and an International Women’s Day march (Newcastle Herald 2001). In Wollongong’s Crown Street Mall, a debate was held in the amphitheatre section regarding same-sex marriage (Field 2004a); NAIDOC celebrations were held (Field 2004b); a World Environment Day rally heard speakers discuss climate change and the logging of old growth forests (Levy 2004); and activities were organised around Refugee Week (Illawarra Mercury 2003).

Some other, more spontaneous, events have also figured in media coverage. For example, in February 2005 the newly appointed federal Opposition leader, Kim Beazley, conducted a meet-and-greet in Liverpool’s Macquarie Mall (NSW) with the local ALP candidate in the Werriwa by-election, Chris Hayes (Liverpool Leader 2005). Yet in relation to this same mall, council officers advised that requests for public speaking by politicians prior to elections are normally declined. The reasons why a request for public speaking would be declined, yet this meet-and-greet could take place, are unclear as there is not a great deal of differentiation to be made between a meet-and-greet and public speaking prior to an election. In Wollongong’s Crown Street Mall, in relation to which council officers expressed hostility to political activities, cleaners held a rally to protest job cut threats (McInerney 2004a) and federal election candidates held a walk through (McInerney 2004b).

Rundle Mall in Adelaide (in which a permit is normally required to distribute any material or convey any message to any person) has been the subject of numerous disputes concerning political speech freedoms. For example, a public campaign was waged in February 2005 to waive the $20 fee for a permit for a pensioner who had pushed a Bible-laden trolley through the mall and handed out free Bibles for a decade. The Adelaide City Council had threatened to evict the pensioner for distributing material without a permit, and the dispute was eventually resolved when the Council agreed to issue a permit without charge (Cox 2005a; Cox 2005b). Also in Rundle Mall, in 2000 a protest against consumerism in the mall was shut down because the organisers had not obtained a permit. Less than a dozen people participated in the protest (Adelaide Advertiser 2000). Newcastle’s Hunter Mall has been the venue for protests against bank closures (Newcastle Herald 2000) and the closure of a midwife service (Barnier 1999). In Brisbane’s Queen Street Mall, a busking permit granted to an indigenous busker named Burragubba McAvoy was revoked after he sang traditional songs that were held not to be covered by his busker’s licence. After a sit-in by the busker, the permit was reinstated (Heywood 2004). Significant disputes over political speech freedoms in Elizabeth Street Mall, Hobart and Flinders Mall, Townsville have already been reported elsewhere (Gelber 2003: 35–41). Thus, in practice, some political speech events are clearly taking place. Dissonance between results from the regulatory frameworks and political speech practices lends further weight to the argument that political speech freedoms are arbitrarily and inconsistently protected in the public space constituted by pedestrian malls, and that restriction often results from hostile attitudes towards particular political speech events on the part of individual council officers.

An enabling principle

Opportunities for exercising political speech freedoms in pedestrian malls appear to be at risk in Australia from a complex combination of factors. Political communication is both limited and enabled by regulations and within the context of varying politico-cultural attitudes within local governments. Currently, these limitations and enablements are highly disparate, inconsistent and often difficult to ascertain. Taken together, this implies a lack of civic culture within local government entities regarding the importance of political deliberation, and a preparedness to act to limit political speech freedoms. In a culture devoid of an express statutory or constitutional free speech protection, this appears to render a particularly important political freedom vulnerable to restriction, limitation or prohibition.

An alternative would be for local governments to recognise both their considerable power to regulate free speech within their jurisdictions, and the particular importance of freedom of political communication. This would almost certainly be undertaken at a local government level, rather than through State Government legislation, since it is at the local government level that attitudes towards freedom of political communication appear to be particularly hostile. A shift in local Government regulation, in the form of adoption of a relatively uniform by-law and procedures, could lead to the generation of greater consistency in policy, and also to a shift in attitudes towards freedom of political speech such that local governments see their primary role as enablement rather than restriction. Thus, councils could see their role as enabling, rather than restricting, political speech freedoms.

This suggestion need not be as utopian as it sounds. There is no reason, for example, why councils could not begin their regulatory frameworks with the normative assumption that political speech should be permitted. This idea could be embodied in relevant by-laws and/or in other council policy documents. In particular, the existing exemptions for political speech in relation to elections and referenda that exist in some councils should be standardised to all local government entities, since these expressions take place at the core of what can be considered political communication. From this starting point the relevant question to be asked would be, ‘when might other political speech activities be regulated or prohibited for good reason?’. A transparent process for making this decision, and specified criteria for limitation or prohibition, could be developed and included either in a general by-law relating to the use of public space or in a mall-specific by-law, or could be taken out of the realm of by-laws altogether and published in a local government policy document. In procedural terms, this would mean that individuals wishing to undertake political speech activities would first be able to work from an assumption that it was likely their activities would be permitted, and would second be able to view a publicly available set of criteria against which they could assess whether their activities would be likely to be restricted and also could be made aware of any conditions that might apply to these activities.

The relevant criteria against which questions of limitation or prohibition could be considered emerge, not surprisingly, from the analysis conducted here. The most obvious ones include pedestrian flow, public safety and litter. However, even these considerations would require some specificity, since differences of opinion commonly arise over what constitutes a threat to pedestrian flow or public safety — especially in the context of many councils currently expressing such hostility to political speech that they would be likely to consider any political speech a risk. Therefore, it would be important that the criteria give consideration to the size and nature of the political speech activity, including the number of people undertaking the political speech (with a presumption that a lone individual or small groups typically do not impede pedestrian flow or interfere with public safety). Similarly, the use of one or two folding tables would not generally be regarded as an impediment to public safety as long as the tables were not placed in the middle of a narrow thoroughfare but were instead positioned in an open space where they would not impede pedestrian movement. In relation to litter, it would be conducive to enabling political speech if the distribution of handbills was generally permitted, subject to the distributor being required to check the area for litter before departing and to collect any discarded handbills.

It is also likely that within this type of framework, one of the reasons cited above by councils for not permitting political speech activities would be unjustifiable. This is the idea that political speech is inherently discomforting or offensive and that this is a ground for its restriction. Given the importance of political speech to public deliberation, simply making someone feel uncomfortable would not be a sufficient ground for restricting such an important political freedom. It could even be recognised that the purpose of some political speech is to make people feel uncomfortable and that this can be constructive. Clearly, councils and police would still have common harassment and offensive public behaviour provisions at their disposal that could be brought to bear should an event become too heated or abusive. The point is that ordinary provisions could be brought to bear in these instances. Councils do not require specific provisions implying that political speech involves inconveniencing or harassing others, empowering councils to restrict or limit it accordingly.

Operating within a presumption that political speech is a public good, the conclusions drawn from these considerations should be quite different from those that are currently being drawn. A policy of this nature would solidify and render transparent the kinds of assessments to which political speech activities ought to be subject. It would also overcome the inconsistencies and vulnerabilities identified in the existing regulatory framework.

This kind of policy would also be likely to conform with the spirit and parameters of the constitutional implied freedom of political communication. I have not examined whether the councils’ existing regulatory frameworks could be considered constitutionally valid. It is likely a number would, given the experience in Townsville (cited above) and in other jurisdictions (Gelber 2003). However, the operation of an enabling principle such as I suggest could improve the fortunes of political speech. This regime would still permit local governments to limit political speech where this occurs as a corollary to the pursuit of another legitimate government end (such as pedestrian flow or public safety), but it would operate as a restraint on local government powers to do this. It therefore would maximise opportunities for political speech while not rendering councils impotent to respond to real risks to the public, which are a legitimate focus of their regulatory activities. Since the constitutional freedom operates as a restraint on government, this kind of policy would embody and elucidate the form this restraint might take at local government level.

The policy could be thought of as an enabling principle governing political speech. Should such a policy shift occur, the fortunes of political speech activities would be likely to benefit significantly. Should such a shift not occur, this most fundamental of freedoms is likely to remain in a somewhat precarious position at a local government level.

* University of New South Wales. I obtained approval from the Ethics Committee, UNSW, to conduct this study (Project No 02356) and ethical protocols were observed. I wish to thank Marina Carman and Jeni Whalan for research assistance, as well as Tony Burke and the journal’s anonymous reviewers for extremely helpful comments.

1 The terms ‘speech’, ‘expression’ and ‘communication’ will be used interchangeably here and include communicatively expressive activity, not only in verbal form.

2 The two landmark cases that outlined the freedom were Nationwide News Pty Ltd v Wills and Australian Capital Television v Commonwealth. A later unanimous judgment in Lange v Australian Broadcasting Corporation clarified the freedom.

3 In particular, I have elsewhere drawn on Martha Nussbam’s theories of Aristotelian social democracy to justify the importance of free speech (Gelber 2002: 38–47).

4 Levy v Victoria.

5 Cass Sunstein and Stanley Fish also make the point (albeit in different ways) that ‘free speech’ is itself a product of regulation and is not actually ‘free’ from regulation. Sunstein argues that claims of neutrality in policy making may mask existing, but not so-named, ‘regulation’ (Sunstein 1995: 251). The institutions, structures and social context within which policy is developed are already human made, and result from pre-existing regulations and policies. ‘Non-intervention’ and ‘neutrality’, therefore, in practice often mask existing interventions and partialities (above: 29–31). Fish argues that what are often perceived as truisms are in fact historically and circumstantially contingent (Fish 1994: vii).

6 The Australian Constitution establishes the Commonwealth/federal level of government and protects the States’ role. Local governments do not feature in the Australian Constitution, and are instead created by State Government legislation.

7 Of course, it must be noted that the limitation of this study to local government regulatory frameworks limits the conclusions that can be drawn from it. Conclusions drawn from this study must be handled with the appropriate caution that applies to a study of only one subsection of a complex menagerie of potential regulatory influences on a phenomenon as diverse as political speech.

8 Subject to ‘reasonable, content-neutral regulations’, such as those restricting loud noises, or the time, manner or place within which access may be granted.

9 In US literature, ‘pedestrian malls’ can also refer to shopping malls — that is, enclosed purpose-built buildings with controlled heating, light and sound (see, for example, Sandercock 1997, who differentiates between ‘indoor’ and ‘outdoor’ malls).

10 Some State rulings have tended to favour property rights, and others free speech. See Mattson 1999; Cohen 1996; Rybczynski 1995: 209.

11 For further discussion on this point, see Gelber 2003: 32–3.

12 Enabling legislation is found in the Peaceful Assembly Act 1992 (Qld); Human Rights Act 2004 (ACT), s 15: Peaceful assembly and freedom of association; Public Assemblies Act 1972 (SA); and Summary Offences Act 1988 (NSW), s 23: Authorised public assemblies. More restrictive legislation is found in the Unlawful Assemblies and Processions Act 1958 (Vic); Criminal Code (WA), s 62: Unlawful assembly; and Police Act 1892 (WA), s 54A: Disorderly assembly. Specific legislation on freedom of assembly appears to be lacking in the NT and Tasmania.

13 The exceptions to general provisions in local government acts include the Local Government Act 1993 (Qld), Pt 3, s 927, which specifically grants power to local governments to implement by-laws and regulations to promote, develop and maintain pedestrian malls; the Local Government (Queen St Mall) Act 1981 (Qld) and Local Government (Chinatown and the Valley Malls) Act 1984 (Qld), which grant the relevant local governments the power to implement by-laws and regulations in relation to these specified pedestrian malls; and the Local Government Act 1993 (NSW), which specifies (in s 68) the kinds of activities that generally require the approval of the council, including (Pt D) that a person may only ‘deliver a public address or hold a religious service or public meeting’ with the prior approval of council (except where the local policy or regulations allow that prior approval is not needed).

14 Public speaking, for the purposes of this study, does not include ‘spruiking’ (commercial promotion for traders) or ‘busking’ (entertainment/performance for the public). It is possible for there to be some confusion where buskers sing overtly political songs. However, if these activities were designed to be more overtly ‘political’, such as by coinciding with a street protest or the handing out of pamphlets, they would be covered by other non-busking regulations and would therefore still be examinable under the other categories considered. The use of amplification has not been identified as a separate category, since this crosses more clearly into the question of noise concerns and tends to be regulated separately within by-laws. Furthermore, the idea that amplification is a reasonable and legitimate area for government regulation is arguably much more viable (for relatively obvious reasons to do with the enjoyment of public space, especially in terms of time and manner regulations) than in the other forms of political speech under examination.

15 The malls were identified by contacting every local government authority. Identified malls were grouped according to the local government authority responsible for their oversight and by State/Territory. A search was then conducted within each local government area to identify any by-laws or regulations governing political speech activities in the pedestrian malls that the local government authority was responsible for administering. The number of malls overseen by any single local government authority ranged from zero to six. Where no by-laws or regulations covering activities obviously capturable as political speech activities were to be found via searches of publicly available information, the local government was contacted by telephone or email and asked to provide information regarding the existence and nature of by-laws regulating pedestrian malls in its area. Every effort was made to identify malls that accorded with the definition utilised in this study. Since the assessment of the regulations is primarily qualitative, rather than quantitative, any potential inaccuracy in the identification of particular malls is not germane to the argument.

16 Newcastle City Council Hunter Mall Policy 1991, 6.

17 Kempsey Shire Council Clyde Street Mall Policy No M11:14, s 1.

18 Brisbane City Council Chapter 19: Queen Street Mall Ordinances, ss 11, 13, 15; Chinatown and Brunswick Street Mall Ordinances, ss 8, 10, 12.

19 Townsville City Council Local Law No 39: Pedestrian Malls, s 8(4).

20 Palmerston City Council Palmerston (Public Places) By-Laws (November 2002), s 16.

21 Tennant Creek Town Council Tennant Creek (Control of Public Places) By-Laws (March 2003).

22 Brisbane City Council Chapter 19: Queen Street Mall Ordinances, s 15; Chapter 21: Chinatown and Brunswick Street Malls Ordinances, s 12.

23 Ipswich City Council Local Law No 11: Roads and Malls, s 15.

24 Ballarat City Council Community Local Law No 5.

25 Nillumbik Shire Council Amendment (Amenity Local Law No 5) Local Law (2003).

26 Gold Coast City Council Local Law No 11: Roads and Malls, s 47(30).

27 Ipswich City Council Local Law No 32: Pedestrian Malls and Subordinate Local Law No 32: Pedestrian Malls.

28 Launceston City Council Malls By-Law No 12 of 1997, ss 7, 9, 11, 12, 19.

29 Whitehorse City Council Local Law No 8: Amenity and Public Safety, ss 24, 35.

30 Hawkesbury City Council Windsor Mall Regulations (2002).

31 Local Government Act 1993 (NT) and Darwin City Council By-Laws 1994 (By-Laws 5, 14, 15): Application for Permit for Handbills and Posters.

32 Adelaide City Council By-Law No 2: Streets and Public Places, ss 2(3), 2(10).

33 Cairns City Council Local Law No 7: Pedestrian Malls, s 13(3).

34 Hobart City Council Highways By-Law 3 of 1997, s 42.

35 Hobart City Council Highways By-Law 3 of 1997, s 41.

36 Greater Shepparton City Council Maude Street Mall, Local Law No 3.

37 Northern Grampians Shire Council Local Law No 7 (Div 10), 12.28.

38 Newcastle City Council Hunter Mall Policy 1991, s 6.

39 Canterbury City Council Development Control Plan No 44: Activities in Public Places.

40 Canterbury City Council Development Control Plan No 44: Activities in Public Places, s 4.1.

41 Parramatta City Council Church Street Mall Policy, s 4.6.

42 Cronulla Plaza Management Conditions of Use of Cronulla Plaza and Cronulla Rateable Area for External Traders and Political Parties.

43 Ballarat City Council Community Local Law No 5, s 5.5.

44 City of Salisbury By-Law No 3: Roads, ss 2(5), 2(8).

45 Johnstone Shire Council Chapter 39: Roads and Control of Traffic and Obstructions on Roads, Part II: Control of Traffic and Obstruction of Road, s 15.

46 Townsville City Council Local Law No 39: Pedestrian Malls.

47 Coleman v Sellars.

References

Australian cases

Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177 CLR 106

Coleman v Power [2004] HCA 39; (2004) 209 ALR 182

Coleman v Sellars (unreported, HCA, Gaudron and Gummow JJ, 27 June 2002, B14/2001)

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579

Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1

Australian legislation

Criminal Code (WA)

Human Rights Act 2004 (ACT)

Local Government Act 1993 (NSW)

Local Government Act 1993 (NT)

Local Government Act 1993 (Qld)

Local Government (Chinatown and the Valley Malls) Act 1984 (Qld)

Local Government (Queen St Mall) Act 1981 (Qld)

Peaceful Assembly Act 1992 (Qld)

Police Act 1892 (WA)

Public Assemblies Act 1972 (SA)

Summary Offences Act 1988 (NSW)

Unlawful Assemblies and Processions Act 1958 (Vic)

Vagrants, Gaming and Other Offences Act 1931 (Qld)

Australian local government by-laws, regulations and policies

Adelaide City Council By-Law No 2: Streets and Public Places

Ballarat City Council Community Local Law No 5

Brisbane City Council Chapter 19: Queen Street Mall Ordinances

Brisbane City Council Chapter 21: Chinatown and Brunswick Street Mall Ordinances

Cairns City Council Local Law No 7: Pedestrian Malls

Canterbury City Council Development Control Plan No 44: Activities in Public Places

City of Salisbury By-Law No 3: Roads

Cronulla Plaza Management Conditions of Use of Cronulla Plaza and Cronulla Rateable Area for External Traders and Political Parties

Darwin City Council By-Laws 1994 (By-Laws 5, 14, 15): Application for Permit for Handbills and Posters

Gold Coast City Council Local Law No 11: Roads and Malls

Greater Shepparton City Council Maude Street Mall, Local Law No 3

Hawkesbury City Council Windsor Mall Regulations (2002)

Hobart City Council Highways By-Law 3 of 1997

Ipswich City Council Local law No 11: Roads and Malls

Ipswich City Council Local Law No 32: Pedestrian Malls

Ipswich City Council Subordinate Local Law No 32: Pedestrian Malls

Johnstone Shire Council Chapter 39: Roads and Control of Traffic and Obstructions on Roads, Part II: Control of Traffic and Obstruction of Road

Kempsey Shire Council Clyde Street Mall Policy No M11:14

Launceston City Council Malls By-Law No 12 of 1997

Newcastle City Council Hunter Mall Policy 1991

Nillumbik Shire Council Amendment (Amenity Local Law No 5) Local Law (2003)

Northern Grampians Shire Council Local Law No 7 (Div 10)

Palmerston City Council Palmerston (Public Places) By-Laws (November 2002)

Parramatta City Council Church Street Mall Policy

Shire of Exmouth Activities on Thoroughfares and Trading in Thoroughfares and Public Places Local Law

Tennant Creek Town Council Tennant Creek (Control of Public Places) By-Laws (March 2003)

Townsville City Council Local Law No 39: Pedestrian Malls

Whitehorse City Council Local Law No 8: Amenity and Public Safety

Books and articles

Adelaide Advertiser (2000) ‘Council outlaws protest’ 25 November p 7

Aroney N (1998) Freedom of Speech in the Constitution Centre for Independent Studies, St Leonards, NSW

Barendt E (1987) Freedom of Speech (2nd ed) Clarendon Press, Oxford

Barnier L (1999) ‘Rally calls for choice’ Newcastle Herald 4 December p 23

Campbell T D (1994) ‘Democracy, human rights and positive law’ 16(2) Sydney Law Review pp 195–212

Chesterman M (2000a) Freedom of Speech in Australian Law Ashgate, Aldershot

Chesterman M (2000b) ‘When is a communication political?’ 14(2) Legislative Studies pp 5–23

Cohen L (1996) ‘From town centre to shopping centre: the reconfiguration of community marketplaces in post-war America’ 101 American Historical Review pp 1068–71

Coper M (1994) ‘The High Court and free speech: visions of democracy or delusions of grandeur?’ 16(2) Sydney Law Review pp 185–94

Corbett J (2003) ‘Dog stew and catlets’ Newcastle Herald 7 March p 8

Cox N (2005a) ‘I’m a lawgiver, not a lawbreaker: Bible man to fight eviction’ Sunday Mail 13 February p 27

Cox N (2005b) ‘New Bible belting council commandment a farce, says “preacher”’ Sunday Mail 27 February pp 1, 24

Dworkin R (1977) Taking Rights Seriously Duckworth, London

Dworkin R (1992) ‘The coming battles over free speech’ New York Review of Books 11 June pp 55–64

Field A (2004a) ‘Family values debate gets ugly’ Illawarra Mercury 25 September p 7

Field A (2004b) ‘NAIDOC empowers the people’ Illawarra Mercury 6 July p 10

Fish S (1994) There’s No Such Thing as Free Speech: And It’s a Good Thing Too Oxford University Press, New York

Fiss O (1996) Liberalism Divided Westview Press, Boulder, Colorado

Gelber K (2002) Speaking Back: The Free Speech Versus Hate Speech Debate John Benjamins, Amsterdam

Gelber K (2003) ‘Pedestrian malls, local government and free speech policy in Australia’ 22(2) Policy and Society: Journal of Public, Foreign and Global Policy pp 22–49

Heywood L (2004) ‘Busker, council reach accord on music’ Courier-Mail 2 March p 9

Illawarra Mercury (2003) ‘Refugee Week’ 27 October p 4

Levy M (2004) ‘Woodchippers under fire’ Illawarra Mercury 7 June p 8

Liverpool Leader (2004a) ‘A welcoming zone’ 6 October p 2

Liverpool Leader (2004b) ‘Children as city’s future’ 14 July p 16

Liverpool Leader (2005) ‘Family man chosen to stand for Labor’ 2 February p 11

Mattson K (1999) ‘Reclaiming and remaking public space: towards an architecture for American democracy’ 88(2) National Civic Review pp 133–44

McInerney P (2004a) ‘SCLC to fight for cleaners’ Illawarra Mercury 5 August p 18

McInerney P (2004b) ‘Garrett rocks the mall’ Illawarra Mercury 30 June p 6

Newcastle Herald (2000) ‘Big banks target of protest’ 13 October p 7

Newcastle Herald (2001) ‘Women’s Day draws crowd’ 12 March p 14

Newcastle Herald (2002) ‘Day of fun for disabled’ 4 December p 19

Patapan H (2000) Judging Democracy: The New Politics of the High Court of Australia Cambridge University Press, Cambridge

Post R (2000) ‘Reconciling theory and doctrine in First Amendment jurisprudence’ 88 California Law Review pp 2353–74

Rosenberg G N and Williams J (1997) ‘Do not go gently into that good right: the First Amendment in the High Court of Australia’ The Supreme Court Review pp 439–95

Rybczynski W (1995) City Life Scribner, New York

Sandercock L (1997) ‘From Main Street to fortress: the future of malls as public spaces — OR — shut up and shop’ 9 Just Policy pp 27–34

Schauer F (1982) Free Speech: A Philosophical Enquiry Cambridge University Press, Cambridge

Smolla R (1992) Free Speech in an Open Society Alfred A Knopf Inc, New York

Stone A (1998) ‘Freedom of political communication, the Constitution and the common law’ 26 Federal Law Review pp 219–57

Stone A (2001) ‘Rights, personal rights and freedoms: the nature of the freedom of political communication’ 25(2) Melbourne University Law Review pp 374–418

Sunstein C (1995) Democracy and the Problem of Free Speech (2nd ed) The Free Press, New York

Williams G (2002) Human Rights Under the Australian Constitution (2nd ed) Oxford University Press, South Melbourne

Wordley B (2001) ‘All smiles as world tunes in’ Adelaide Advertiser 28 May p 6

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