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Charities & Not-For-Profits Law in Australia

Freedom of Speech on the Doorstep of the Church?

Posted in General, Liability & Risk

York CathedralIn late 2013, the Supreme Court of Queensland refused an application instigated by a parishioner of a Methodist Church in Queensland, who sought orders to allow him to freely pass into the Church to distribute flyers he had made.  The facts of the case are straight forward:

What happened?

  • Mr Gallagher, who had been a member of the congregation of a Methodist Church in Queensland, became increasingly upset at the theology proffered by his church.
  • Mr Gallagher created “warning pamphlets” and during Sunday service, placed them in the pigeon holes (located inside the Church) of some of the members.
  • One of the respondents (who included the pastor and members of the Board of that Church) asked Mr Gallagher to leave, but he refused and only left after the police were called.
  • The following day, the respondents sent a letter to Mr Gallagher stating that the Board was unable to allow him to enter onto the Church property without express permission.
  • Mr Gallagher complied with their letter but felt that the respondents’ actions were unjust and contrary to his entitlement to freedom of speech. He commenced action against the Church in the Supreme Court of Queensland.

Court’s Judgement

The Court’s judgement was concise and uncontroversial.  The Court held that:

  1. It was up to the Church’s discretion to allow or refuse any person licence onto their property.  Mr Gallagher had no “right” to be on Church property, but simply had implied permission of the Church to be there.  This permission was revoked by the letter sent to him by the Church.
  2. While Mr Gallagher is entitled to express his views, this does not equate to a right to enter someone else’s property and distribute pamphlets there.  The Court held that this was not a “freedom of speech” issue, but a question of whether Mr Gallagher can enter someone else’s property and distribute pamphlets without the owner’s permission.  The answer is no, he cannot do that.

The Court held that there was not a serious question to be tried and hence dismissed Mr Gallagher’s application.

Take Home Lesson

This case is a timely reminder that an organisation (whether it be a religious organisation or not) that opens its doors to the public is not, by implication, granting guests any legal interest to the property.  Guests who are invited onto private property must leave if the owner of the property (or authorised agents of the owner) declares that such guests are not to remain on the property.

The Church in this case took the prudent and sensible step to formally notify Mr Gallagher in writing that he was not to return to the Church unless he complied with the conditions of the letter.  While it was not strictly necessary, it helped to demonstrate the Church’s intentions to bar Mr Gallagher from returning to the Church’s property without supervision.

From a risk management perspective, it would be prudent for organisations that allow members of the public to enter their premises to have policies enacted to guide staff in dealing with situations where a guest refuses to leave the premises or where they cause nuisance to others.