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The effect of the judgment in the Full Federal Court this afternoon striking down part of Clause 7 (1) (b) of the World Youth Day Regulation 2008 [relating to annoying conduct] is that, until it is overturned, while one is allowed to be annoying, one is neither allowed to inconvenience, obstruct or indulge in conduct that puts at risk the “safety of the person or others “ if directed to do so by an authorised person where the others are engaged in a World Youth Day Event (whatever that may be and it is neither defined nor does the Court’s decision give any guidance as to what it might be). The nub of the decision is (paragraph numbering comes from the judgment):

9 The application succeeds to the limited extent that the part of cl 7 relating to annoyance to participants is declared invalid. The remainder of the Regulation and the WYD Act stand.

While I don’t disagree with the effect of the judgment, as far as it goes, it is, as a matter of law, wrong.

First, it proceeds on this basis:

7 … we have interpreted the WYD Act on the presumption that it was not the intention of Parliament that regulations would be made under the Act preventing or interfering with the exercise of the fundamental freedom of free speech.

There is no such freedom known to Australian law. Speech has never been free in Australia or in the Colonies. That is why we have torts like defamation and injurious falsehood. You can’t just say what you like. The “implied freedom of political discourse” is severely limited and in a state of constant flux. This judgment is yet another example of inferior Courts attempting to aggregate to themselves a power of interpretation which resides solely under our Constitution in the High Court. From a practical point of view to suggest that the pack of wankers we have in Macquarie Street didn’t intend to limit free speech is fanciful.

The decision is unanimous and proceeds on the following foundation:

38 The first basis upon which the declarations are sought invokes the jurisdiction of the Court in matters arising under the Constitution and involving its interpretation. There is no contention that the jurisdiction of the Court is not properly invoked. The alternative challenge to the validity of cll 4 and 7 relies upon the contention that they fall outside the regulation making power conferred by the WYD Act. That challenge arises entirely under the law of New South Wales and ordinarily would not be within the jurisdiction of this Court. It is, however, clearly a part of the matter in which the constitutional challenge is brought and so falls within the “accrued jurisdiction” of the Court.

39 Although the constitutional challenge underpinned the primary relief sought in the application, the question whether s 46(3) or cll 4 and 7 in any respect infringe the implied freedom of political communication depends upon their proper construction and, in the case of the Regulation, whether they are valid under the WYD Act. If either of the clauses of the Regulation is not valid because it is not authorised by the WYD Act, then the question of constitutional validity falls away.

40 If on its proper construction a statute does not offend against any constitutional limitation or prohibition it is not ordinarily appropriate for the Court to hypothesise a different construction and then test its constitutionality. If a regulation is found to be invalid as not authorised by the statute under which it is said to be made, then it is not for the Court to hypothesise validity under the statute so that it may test for validity under the Constitution. This approach is consistent with, although not a corollary of, the well-established presumption in favour of the constitutionality of statutes: Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 180 (Isaacs J); Attorney-General (Victoria) v Commonwealth (1945) 71 CLR 237 at 267 (Dixon J); Chung Kim Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 at 14 (Mason CJ).

That analysis is wrong for the following reasons. The Court was being asked to rule on a completely hypothetical case. Australian Courts do not give advisory opinions. Secondly, there being no facts in issue, there was nothing on the case as it had been pleaded to attract either Constitutional power, Federal common law or “accrued jurisdiction”.

The Court then went on to save the “inconvenience principle” on the following reasoning:

84 The term “inconvenience” has a more objective content. The relevant definition in the Shorter Oxford English Dictionary is:

Harm, injury, mischief; misfortune, trouble.

It is used in a transitive sense by reference to the effect of the relevant conduct on participants. The Macquarie Dictionary defines it as:

Arranged or happening in such a way as to be awkward, inopportune, disadvantageous or troublesome.

While the term is broad it does not depend upon the subjective reactions of participants in World Youth Day events to the conduct in question. It requires a judgment by the authorised person of objective inconvenience. Such inconvenience may arise, for example, where protestors by their locations or actions hinder or obstruct the movement of participants or are so loud in their protest as to impair communications between groups of participants and officials. The term “inconvenience” may be criticised as conferring wide powers of uncertain ambit upon authorised persons but it is, in our opinion, a term which can reasonably be construed as limited to matters susceptible of objective judgment. The term does not reach so far as to impair expression of opinions with which people might disagree or which they might find troubling. In our opinion that aspect of cl 7(1)(b) does not spell invalidity.

86 The circumstances in which the Court will grant declaratory relief were enunciated by Lockhart J on behalf of the Full Court, in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406:

1. The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of a legal controversies. The answer to the question must produce some real consequences for the parties.

2. The applicant for declaratory relief will not have sufficient standing if relief is claimed in relation to circumstances that have not occurred and might never happen; or if the Court’s declaration will produce no foreseeable consequence for the parties.

3. The party seeking declaratory relief must have a real interest to raise it.

4. Generally there must be a proper contradictor.

See also: JN Taylor Holdings Ltd (in liq) v Alan Bond (1993) 59 SASR 432.

On that analysis, the Court misapplied the test. Here there was nothing which had “happened”. That becomes clear in the following passage:

87 The question of the discretion to withhold declaratory relief in these proceedings now only arises in relation to cl 7(b) and then only in so far as that clause relates to conduct which causes annoyance to participants in World Youth Day events. It is not necessary for the purpose of exercising that discretion to grant or withhold relief, in this case, to have a precise catalogue of the conduct in which the applicants intend to engage. It is clear that in various ways they intend to express views likely to be at odds with those of many of the participants. They may do so in a way, or using means, which some participants are likely to find annoying. The wide scope of the Regulation in relation to conduct which causes annoyance is likely to catch at least some of the intended conduct. Moreover, it can be expected to have a chilling effect upon the exercise of their freedom of speech because of the very uncertainty about the degree of its infringement upon that freedom. Importantly, the declaration sought is not about the lawfulness of the future conduct of the applicants in which event a degree of precision in the definition of that conduct would be necessary before such relief could be contemplated. What is sought is a declaration of the invalidity of an aspect of a law of general application. On the principles enunciated by Lockhart J the applicants have established that the discretion to grant the relief should be exercised in their favour. (my emphasis).

In the result, the conclusion was:

88 For the preceding reasons, the Court will make a declaration that cl 7(1)(b) is invalid to the extent to which it is applied to conduct which causes annoyance to participants in World Youth Day events. There is otherwise in cl 7 a substantial measure of protection against disruptive behaviour, behaviour which causes inconvenience to participants and behaviour which may give rise to a risk to public safety. Over and above these provisions the general criminal laws of the State relating to disorderly and offensive conduct and the like are able to be invoked should that be necessary.

89 On the matter of costs the applicants have had mixed fortunes in the result. They have made out their challenge in an area of significance to their intended activities but have failed to make it out in other areas. In our opinion, having regard to the division of issues it is appropriate that we order the State to pay one third of the applicants’ costs of the proceedings. We will however allow both parties liberty to file written submissions within 14 days if either of them should seek a different order as to the costs of the application.

So, by all means go out and be annoying but don’t be inconvenient or obstructive or threaten anyone. The decision is, in my opinion, apellable but we’ll probably never get to that because of the time constraints.

Nevertheless, would you put it past this NSW Government to pass a new Regulation tonight? Her Excellency the Governor is currently the Administrator of the Commonwealth because Who? is on leave. That means the Chief Justice, the well-know freedom-rider and Lieutenant-Governor, is Acting Governor. Wonder if he’s prepared to sign an Executive Council Minute at one minute to midnight.

Watch this space, pilgrims.