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."
Let’s not get too excited by this proposition, however. What it means is that if the Government had intended to override free speech with these laws it could have – just by using clear words.
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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