Evans v New South Wales

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FEDERAL COURT OF AUSTRALIA

Evans v State of New South Wales [2008] FCAFC 130

ADMINISTRATIVE LAW – declarations – delegated legislation – whether ultra vires – approach to construction – Act and Regulation providing for control of conduct of public in connection with major public event – potential restriction on protest activities – construction of regulation making power – presumption against interference with fundamental rights and freedoms – part Regulation beyond power

CONSTITUTIONAL LAW – validity of State statute – whether impermissible burden on implied freedom of political communication – prior question of construction of Act and validity of Regulation made under it – undesirability of deciding unnecessary constitutional question

HUMAN RIGHTS  – freedom of speech – freedom of religion

REMEDIES  – declarations – discretion

STATUTORY INTERPRETATION  – construction – presumption against interference with fundamental common law rights and freedoms – principle of legality – freedom of speech – freedom of religion  

WORDS AND PHRASES – “distribute”, “conduct”, “annoyance”, “inconvenience”.

World Youth Day Act 2006 (NSW) s 58
Judiciary Act 1903 (Cth) s 39B

World Youth Day Regulations 2008 cl 4, cl 7

RACHEL EVANS and AMBER PIKE v STATE OF NEW SOUTH WALES

NSD 1018 OF 2008

FRENCH, BRANSON AND STONE JJ
15 JULY 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1018 OF 2008

BETWEEN:

RACHEL EVANS
First Applicant

AMBER PIKE
Second Applicant

AND:

STATE OF NEW SOUTH WALES
Respondent

JUDGES:

FRENCH, BRANSON AND STONE JJ

DATE OF ORDER:

15 JULY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.It be hereby declared that Clause 7(1)(b) of the World Youth Day Regulation 2008 is invalid, as beyond the regulation making power conferred by s 58 of the World Youth Day Act 2006 (NSW), to the extent that it purports to empower an authorised person to direct a person within a World Youth Day declared area to cease engaging in conduct that causes annoyance to participants in a World Youth Day event.

2.        The application be otherwise dismissed.

3.The Respondent pay one third of the Applicants’ costs of the application provided that either party may apply by written submission, filed and served on or before 29 July 2008, to vary this costs order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1018 OF 2008

BETWEEN:

RACHEL EVANS
First Applicant

AMBER PIKE
Second Applicant

AND:

STATE OF NEW SOUTH WALES
Respondent

JUDGES:

FRENCH, BRANSON AND STONE JJ

DATE:

15 JULY 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

  1. World Youth Day is a major annual gathering of young members of the Catholic Church.  It was established by Pope John Paul II in 1986.  Every two or three years World Youth Day is taken to an international host city and comprises a week long series of events attended by the Pope and a large number of young people from around the…

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Details
Case
[2008] FCAFC 130
Decision Date

CaseChat Overview and Summary

The matter before the court involved a challenge to the validity of a regulation under the World Youth Day Act 2006 (NSW). The applicants, who intended to engage in various forms of protest during World Youth Day events, sought a declaration that certain provisions of the World Youth Day Regulation 2008 were invalid. Specifically, the applicants argued that Clause 7(1)(b) of the Regulation, which empowered authorised persons to direct individuals to cease conduct that caused annoyance to participants in World Youth Day events, was beyond the regulation-making power conferred by the Act and therefore invalid.

The court had to determine whether the discretion to withhold declaratory relief should be exercised in favour of the applicants. The applicants sought a declaration of invalidity of Clause 7(1)(b), which pertained to conduct causing annoyance, rather than a ruling on the lawfulness of their intended future conduct. The court considered the broad scope of the regulation and its potential chilling effect on the applicants' freedom of speech. Given the uncertainty about the degree of infringement on freedom of speech and the wide scope of the regulation, the court found that the applicants had established that the discretion should be exercised in their favour.

The court declared Clause 7(1)(b) of the World Youth Day Regulation 2008 invalid to the extent it applied to conduct causing annoyance to participants in World Youth Day events. The court dismissed the application in all other respects and ordered the State to pay one-third of the applicants' costs of the proceedings. The order allowed either party to apply for a variation of the costs order within 14 days. The decision recognised the applicants' right to protest while balancing the need to protect participants in World Youth Day events from disruptive conduct.

Orders

Orders of the court

1. It be hereby declared that Clause 7(1)(b) of the World Youth Day Regulation 2008 is invalid, as beyond the regulation making power conferred by s 58 of the World Youth Day Act 2006 (NSW), to the extent that it purports to empower an authorised person to direct a person within a World Youth Day declared area to cease engaging in conduct that causes annoyance to participants in a World Youth Day event.

2. The application be otherwise dismissed.

3. The Respondent pay one third of the Applicants’ costs of the application provided that either party may apply by written submission, filed and served on or before 29 July 2008, to vary this costs order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH, BRANSON AND STONE JJ
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. CONCLUSION 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. 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.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH, BRANSON AND STONE JJ

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