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 39BWorld 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 ApplicantAMBER PIKE
Second ApplicantAND:
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 ApplicantAMBER PIKE
Second ApplicantAND:
STATE OF NEW SOUTH WALES
Respondent
JUDGES:
FRENCH, BRANSON AND STONE JJ
DATE:
15 JULY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
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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- Case
- [2008] FCAFC 130
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: FRENCH, BRANSON AND STONE JJ
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