law
16 Jul 2008
How Annoying?
Who advised the NSW Government that it would get away with a law against "annoyance"? Even first year law students are scratching their heads
The judicial slap administered yesterday by the full Federal Court to the NSW Government's attempts to regulate the behaviour of protesters during the World Youth Day celebrations, exposes both strengths and weaknesses in our laws dealing with freedom of speech and fundamental rights generally.What the court did was to rule invalid part of a Regulation made by NSW Deputy Premier John Watkins, under which a police officer, a State Emergency Service member or even a Rural Fire Service officer "may direct a person within a World Youth Day declared area to cease engaging in conduct that ... causes annoyance or inconvenience ... to participants in a World Youth Day event".
It was only the "annoyance" part of the provision that the Judges saw as a problem.
Technically, the protesters' application succeeded on just one of three points and therefore the Court ordered the State Government to reimburse them only a third of their legal costs. However, it is very doubtful that this decision will be seen as anything other than a win for free speech, and a loss for the Government which could have been avoided.
In coming to its decision the court noted that "annoyance" is not defined in the Regulation, and, as the Judges said in their joint judgment, the Macquarie Dictionary defines "annoy" as "To disturb in a way that is displeasing, troubling or slightly irritating" (my italics).
The Court went on to say:
"There is no objective criterion to assist ... in deciding whether to issue a direction ... There may be circumstances in which it would be difficult if not impossible for a person to whom a direction is given to know whether his or her conduct was such as to authorise the giving of the direction."
The Court concluded that "annoyance" may extend to:
"... expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive... Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power... Moreover, there is no intelligible boundary within which the [provision] can be read down to save it as a valid expression of the regulating power."
Surprisingly, the principle underlying this decision is not the right of freedom of expression "concerning matters of government or politics", which in 1992 the High Court of Australia identified as implied in the Federal Constitution and which conservatives like to criticise.
The Court neatly avoided basing its decision on that principle, probably because it remains controversial and might provoke an appeal. The Judges preferred to say that to effectively restrict fundamental rights including free speech, laws must be very clearly expressed, a less controversial proposition. This was so because:
"Fundamental rights cannot be overridden by general or ambiguous words ... there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
Thanks to Peter Broelman
One puzzling aspect of the matter is the source of the advice - which the Government must have received - that it had power to make the Regulation. On that, the usual suspects are running for cover. The police and the Catholic Church claim they did not ask for it, but if it was initiated by Government lawyers, they certainly got the Regulation terribly wrong.
First year law students with a smattering of knowledge of fundamental principle are scratching their heads as to who advised Watkins that such a wide law could survive a challenge.
A strange aspect of the decision yesterday was the way in which the Court dealt with the challenge to another clause in the same Regulation which says a person must not "sell or distribute" various items within a WYD "controlled area". The idea was to give the Catholics the exclusive right to sell the items, to defray the enormous cost of the whole event.
Such items include food, drink, religious items, jewellery, giftware, stationery, textiles, coins, postage stamps, and "items of apparel, including headwear, (for example, t-shirts, jumpers, jackets, pants, pyjamas, singlets, tank tops, shorts, wet weather jackets, caps, visors and hats)".
One of the protesters' arguments here was that this would prevent distribution of t-shirts with political slogans printed on them, thereby restricting free speech.
The court said none of the items the protesters wanted to distribute were covered by the clause. Huh? What about the t-shirts? This is what the Judges said:
"Similar reasoning applies to t-shirts. Although they are mentioned in cl 4(c) as included in the class of ‘items of apparel', t-shirts bearing slogans of the type that the applicants propose to distribute do not, in our view, fall within this class [and their distribution is therefore not prohibited]."
Here at last is new law. A t-shirt is not a t-shirt. You work it out!
One conclusion is that the judges were aware these laws apply for a month only and bent over backwards to validate them, being prepared to allow our pollies some discretion. However, the smell of the "annoyance" offence, was too much - this was a corpse that just had to be buried.
So what is the solution to bad legislation infringing fundamental rights, however unintended? A statutory Charter of Rights would not be a panacea, it is true. It would not stop bad legislation being introduced but it would flag for parliamentarians and the public that the Executive was proposing something extraordinary or dangerous, by setting benchmarks for good law.
Its existence would promote a culture of respect for fundamental rights, not only within the parliaments, but within law enforcement bodies and not least, among protestors and prelates.
What about it Morris Iemma and John Watkins? After all, it is in Labor's NSW Platform.
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It’s interesting that the NSW Attorney-General, who I suspect was complicit in this ham-fisted attempt to suppress free speech, has become a latter-day opponent of NSW legislating for any human rights charter.
By this latest folly they have only reinforced the arguments for our need to have such a human rights framework at a state as well as a federal level - if one had existed perhaps their own advisers might have recognized it just wasn’t going to fly !!
I lost all faith in the mongrel state government after their handling of peaceful protests during APEC. That was real police state stuff. I wonder what happened to all their reinforced white painted buses that were to whisk away annoying protesters? They were planning for 200 or so people to be dragged away and incarcerated, and I bet they were secretly upset that they couldn’t use the water cannon.
What do we do with this state government? I agree with most people in NSW that we have to not only get rid of them but punish them brutally for their hubris, their arrogance, their stupidity. But do we do that by voting for a government that will do the same stuff shamelessly while the media applaud? The Sydney Morning Herald barracked for what it called fiscal responsibility until readers started complaining about crappy infrastructure. Then it started screaming about state government incompetence. How tragic it is that our press can be so totally irresponsible while upbraiding our politicians for irresponsibility? The Herald wants the state government to spend nothing, to borrow nothing, to hand over all capital projects to the private sector, then it turns on them on the basis that they’ve failed to properly maintain and extend state infrastructure. We don’t just need a new state government, we also need a new newspaper and, especially, a new newspaper editor. Alan Oakley is a vulgar opportunist who’s been put in charge of an important institution, setting out to make a profit for Fairfax and a whacking great salary for himself without caring about the reputation of his masthead. I don’t read the Herald any more. My wife buys it for the crosswords. Every time I see the word: ‘REVEALED" on the front page, and that’s four or five times a week, I lament the demise of a once-good newspaper. "REVEALED" is tabloid stuff, especially when it’s used so cavalierly as to be invalid in most instances. Let’s vote against this revolting government by voting for the minor parties. Send a message to Macquarie Street: "A pox on both your houses."
Remember there was ASKIN, because we were askin for it,
Then we WRANN head long into it.
But along came UNSWORTH and we got our bum’s worth.
After that GREINER came along and we got just that,greinered.
CARR brought us bigger and more powerful SUV’s and AWD’s,
Now there’s the dIlEMMA, part of the wall to wall unanimous state labor and federal labor juggernaut.
How can we ever be free of it.
If the choice is between X words in the SMH or Sudoku in the Oz.
May as well just crucify me and stick me up next to Jesus on Friday.
So now that being annoying is’nt a crime:
"Al-ways look on -the- bright- side- of life la la, la la la la la la….."
Apologies to Monty Python, "life of Bryan"
Oli
Why does the NSW govt want to look religious? I’d always presumed given how much Carr/Iemma are detested, the only reason the NSW Liberals haven’t had a chance in hell is because of the hideous influence the bible bashing numpty element amongst them wields.
Iemma feels his best bet is to get some of that numpty gloss??
Kirk: a serious question though it sounds daffy. If the Federal Court was happy with the "inconvenience" bit of the legislation is there any reason why someone couldn’t sue on the basis of the inconvenience suffered by non-catholic Sydney residents as a result of the World Youth Day? Does "inconvenience" only get defined in one direction, the government-approved one, or can it cut both ways? Why should the catholic church get to inconvenience all of us while we may be locked up for inconveniencing a few of them?
You guessed it Peterbest - it is "inconvenience to participants in a World Youth Day event"
It therefore applies only one way!
Kirk McKenzie
…..unless "participant" was given a wide meaning… which is not impossible when I think about it.
KMcK