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Analysis of Evans v State of NSW

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.


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Great Theatre

I often sit in on murder trials and love seeing a good barrister tear witnesses apart.

Umpteen years ago I got caught up in case when I lived in Portobello Road in London. My wife was arrested when she went to the aid of a French clown who was busking – she was charged with hindering police when all she did was open a police van door (the poor little children watching the clown perform were in tears as he was dragged away).

But when the barrister got stuck into the police who had told so many fibs it was pure joy to see him lead them down paths on a seemingly unimportant ways and then strike as they contradicted their evidence.

Needless to say the awful magistrate still convicted both the clown and my wife – they appealed and the Knighstbridge Court threw the case out and for good measure the wife got costs and 60 pounds in expenses (twice my weekly wage) so we immediately popped over to Harrods to celebrate with something expensive from the Food Hall.

Bigger than Ben Hur

It will get much more interesting though when Anthony Foster lands in Sydney tomorrow and has a massive press pack to greet him.

His story of what happened to his little girls made me weep, because there are probably millions more such little girls out there who suffered at the hands of bastards like Kevin O'Connell who seems to have dropped dead and saved some of them from his filth.

In the meantime some of the so-called pilgrims have been writing on war graves and memorials - just imagine the outrage if muslims had done it.

Could be an interesting week all in all - three of the pilgrims are in Villawood concentration camp already while thousands were denied entry in case they dared to seek protection. 


And I need to read this about six times for it to sink in. Thank God for barristers who can interpret these things at first reading (although I believe Duncan is assisted by Claude).

The manner in which this law was introduced was the most frightening aspect – and more so because after nearly a month of screeching about the infamous Iguana table seating drama, Opposition leader Barry O'Farrell was completely silent about it. Which means we now have a government and it's alternative ready to trash our rights and introduce such loosely worded laws at any time they feel necessary and at midnight if need be.

We saw with the APEC laws how ludicrous and self pereptuating this rubbish becomes. Police hyped up for no good reason – little old ladies being refused access to David Jones (a major sin), a father tackled in front of his son and a foreign news photographer thrown to the ground and her sad predicament as she wet herself in fright (who wouldn't ?) televised to the world.

And all shown how farcical it was by a bunch of ABC comedians.

Surely current laws already protect visitors such as those here for WYD from harassment and as if anyone was ever going to anything more harmful than hand out condoms! And from some of the reactions those who were successful today in court, received when they the proceeded to hand out said condoms – Catholic youth is quite capable of speaking up for themselves (while others discreetly pocketed the trophies).

Miracles do happen

Someone with a nice word to say about  barristers, Michael de Angelos?  I'm almost lost for words.

Well, not quite, there was another point I wanted to make.

"For who would bear the whips and scorns of time/The oppressor's wrong, the proud man's contumley ,/The pangs of despis'd love, the law's delay..."

Hamlet III i

Much as we get criticised, here was a Constitutional case, potentially involving all of the Attorneys-General  for the States and the Commonwealth, two Senior Counsel, three junior counsel, four solicitors, reams of submissions, three senior judges, prepared, heard, argued and judged in a week - all with no call-out fee.  Try and get a plumber to do that.

something similar

Duncan, sometime in the eighties my trading partner and I went to a four day seminar in Chicago.

To be certain we had funds to trade, etc we transferred $20,000 through the Commonwealth Bank.

Arrived in Chicago, no funds.

(The bank explained that they had transferred them to New York, and defended their position by insisting that New York was after all in the US!)

We turned up at the seminar venue and explained that we had no money. ‘You are booked in, come on in.’

It wasn’t until the late afternoon of the third day that they asked if we had had any luck tracing our funds.

Try your luck with that in Sydney!

Reminds me of a lower form of life

Peter Hindrup, when I was a young solicitor my firm banked with the NAB. I was constantly getting into trouble with the book-keeper for over-drawing the trust account. Apart from the odd arithmetical error from time to time, the biggest problem was that we acted as city agent for lots of country firms and the Bank kept putting the funds that were telegraphically transferred for settlement of conveyancing transactions into the office account rather than the trust account. Made a huge difference to the interest on the overdraft though.

The story's bouncing everywhere


Young Catholics attending World Youth Day celebrations in Sydney may find themselves swamped with offers of free condoms after legislation giving police the power to arrest anyone who "annoys" pilgrims was overturned by a court.

Activists opposed to the church's stance on contraception and abortion successfully appealed the laws, passed by the New South Wales government.

Members of the NoToPope coalition argued in a federal court challenge on Tuesday that the anti-annoyance regulations, which carry fines of $5,500, were invalid and contrary to civil liberties.

Three judges agreed, saying the measures designed to help police keep order during the six-day festivities "should not be interpreted as conferring powers that are repugnant to fundamental rights and freedoms".


The Federal Court of Australia overturned police powers to fine protesters more than $5,000 if they annoy Catholic pilgrims during Pope Benedict XVI's visit to Sydney, ruling they undermine freedom of speech.

Activists won't be allowed to disrupt the World Youth Day celebrations, however, and can still be fined if they ``inconvenience'' participants in the five-day event. The New South Wales state government, which introduced the regulations, said it accepted the ruling and supported the right to peaceful protest.

The NotoPope Coalition, which is protesting the pope's stance on homosexuality, birth control and abortion, welcomed the decision. ``It is a major victory for the protest movement,'' spokeswoman Rachel Evans, who brought the legal challenge, said outside the court. ``We are emboldened by the court's decision.''

Times Online UK

Immediately after the victory, Rachel Evans, one of two ‘No To Pope’ protesters who took the case to court, started handing out condoms to pilgrims. One threw them on the ground and some were affronted, but Ms Evans said several took them.

“We’re not seeking to annoy or inconvenience anyone,” she said, wearing a T-shirt declaring ‘The Pope is wrong, put a condom on’. “We welcome the Catholic youth. We’re going to talk to them about how we oppose the conservative contraception policy of the Pope.

Plenty more here.

Watching indeed

I need to read this a couple more times to make sense of it, but it looks like enough of a win to make the authorities more careful in the exercise of their powers.

Who am I kidding?  I heard of first-hand and personally witnessed the NSW Police's application of APEC laws in areas where such application was not legal, from the commands to break banner-poles to arresting people outside of restricted areas, and have no doubt that authorities will again shoot first and ask questions later.  Scipione will praise and defend his minions.  Same shit, different day.

Hopefully  today's legal definition, as incorrect as it might be, might provoke a strenous definition of the abilities to silence protest.  If a midnight correction is made to the laws, protesters can be sure that they're going to be trodden on.

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