Rachel Evans and Amber Pike are annoying people. Or, at least, they are worried that they may annoy some people in the next couple of days. They’re right to worry. They plan to speak to (and debate and leaflet and t-shirt and megaphone(!)) people about such thrilling topics as the Pope and his teachings on sexuality; same-sex marriage; abortion in Australia and abroad; Australia’s role in World Youth Day; and anti-gay education. Doubtless, lots of participants in World Youth Day have similar plans to talk to everyone about these exact same topics and will be similarly annoying.
But Evans and Pike differ from the World Youth in at least two ways: First, they’ll be handing out condoms; indeed, Pike will wear (a ‘giant’) one. Second, they – but not the participants – risk being dealt with under this clause of the World Youth Day Regulation 2008:
7(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that:… (b) causes annoyance or inconvenience to participants in a World Youth Day Event…
[T]he 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.
Unlike a declaration of inconsistent interpretation under the Charter, this particular declaration has legal effect; no-one can now require Pike and Evans to stop doing something just because they are annoying (although Pike and Evans will still have to watch out for other restrictions, like threatening someone’s safety or ‘inconveniencing’ a World Youth, not to mention regular criminal law.) This result was reached by ordinary statutory construction, albeit informed by the Constitution’s freedom of political communication.
Depending on what they think of the (pretty unpopular) regulation in question, opponents of human rights statutes will argue that this case is either an example of the dangers of such statutes or proof of why they are unnecessary. They may well be right, of course. But the case wouldn’t necessarily have been the same if the regulation in question was a Victorian regulation and hence subject to the Charter. Victoria has some annoying laws too. Here are some similarities and differences about the case would have been resolved if clause 7 had been passed south of the Murray:
First, one oddity of the case is that it was decided in the Federal Court, despite the balance of the issues being concerned with statutory interpretation of state laws. The case could go to the Feds because Evans and Pike relied in part on the federal constitution; that’s enough to give the Feds ‘accrued’ jurisdiction over the state matters too. There was nothing to stop Evans and Pike raising exactly the same arguments in the NSW Supreme Court; that they didn’t speaks loudly of their relative faith in Michael Black’s mob, compared to Jim Spigelman’s, when it comes to judging the NSW government. (I assume that they share my preference, as between Spigelman and French, who was one of the judges in this case, as to who should be our next Chief.) Victorians would have a similar choice open to them in a case involving political communication (and, given the Victorian Supreme Court’s lousy record this year on free speech, perhaps they’d make the same choice. That would allow the Federal Court to apply the Charter too (except, most likely, the ability to make a declaration of inconsistent interpretation.))
Second, in terms of actual human rights under consideration, the FCA was limited to considering the ‘political’ communication by Evans and Pike – as that’s the only free speech right in our Constitution – whereas a court that was applying the Charter could consider communication of any sort, including (say) the communication of contrary religious beliefs. The FCA did consider the potentially competing right of the World Youth to freedom of religion, but had to rely on s. 116 of the Constitution (which doesn’t apply to the NSW parliament) and Article 18 of the ICCPR (which has not been domestically incorporated in NSW.) By contrast, a Charter court could simply have relied on the relevant Charter right:
14(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.
A further contrast: while the FCA did state its concern that clause 7’s ban on annoying was so vague that it will chill even non-annoying conduct, it had to shoehorn this analysis into the High Court’s freedom of communication jurisprudence; a Charter court could simply ask the question of whether this ban was precise enough to be a ‘lawful restriction’ as required by Charter s. 15(3) or a ‘law’ as required by Charter s. 7(2).
Third, just as in a Charter case, a lot of the reasoning by the Federal Court was about interpretation. The FCA painstakingly interpreted another clause that worried Evans and Pike, which defined ‘prescribed articles’ that fell within a ban on unapproved sales and distributions to the World Youth: ‘food’, ‘religious items’, ‘apparel’, clothing ‘accessories’, ‘giftware’ and ‘stationery’. The Court relied on various dictionaries (including Encarta), not to mention the King James Bible, to conclude that these bans neither cover feeding a hungry pilgrim nor handing him or her condoms, badges, stickers (“I know condoms save lives – Is that annoying?”, “I know Gays are great – Is that annoying?” Yes, a little…) and leaflets.
But some of their interpretations were pretty strained. Leaflets, we are told, aren’t stationery and badges aren’t giftware when they bear political slogans. Fair enough, I suppose. But:
Although they are mentioned in cl 4(c) as 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.
Huh? If a t-shirt with a slogan isn’t a t-shirt, then what is it? Apparently, ‘symbolic’ coat hangers aren’t apparel ‘accessories’ either. On the other hand, candles distributed ‘to raise awareness about the fact that same-sex marriage, abortion, birth control and homosexuality are not obstacles to world peace’ may still be ‘religious items’. Evans and Pike will have to risk a future prosecution on that one! I suspect that Charter s. 32 might have given a court in Victoria a simpler option – which the Federal Court baulked at, despite the suggestion of the NSW government – of holding that the ban on ‘distributing’ was limited to commercial conduct. The Court relied on a much wider interpretation derived from the bible (loaves and fishes and all that)!
The crucial finding in the case that led to the declaration of invalidity was that the Federal Court felt unable to construe ‘annoy’ in a way that didn’t breach Evans’s and Pike’s freedom of communication:
The principal issue in relation to cl 7(1) is its application under cl 7(1)(b) to conduct that “causes annoyance … to participants in a World Youth Day event”. The term “annoy” as defined in the Shorter Oxford English Dictionary relevantly means: To affect so as to ruffle, trouble, vex. Annoyance has a corresponding meaning. The Macquarie Dictionary defines “annoy” as: To disturb in a way that is displeasing, troubling or slightly irritating.
Conduct which may attract a direction under cl 7(1)(b) is conduct which “causes annoyance … to participants in a World Youth Day event”. That is to say it is conduct which actually results in its observers being ruffled, troubled, vexed, disturbed, displeased or slightly irritated. These are responses which depend very much on the individuals concerned. Some may find protests of the kind which are proposed by the applicants mildly amusing. Others may be practising Catholics or Christians who agree with some of the protestors’ points and are not troubled by them. There may be others who find the protests irritating and who are, in the relevant sense, annoyed by them. Annoyance to “participants” within the meaning of the Regulation may be annoyance to many or a few. There is no objective criterion to assist the judgment of “an authorised person” in deciding whether to issue a direction under cl 7. 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. It is little consolation to the person affected by a direction that he or she could argue the point later in a prosecution in a court of law as the State suggested.
In our opinion the conduct regulated by cl 7(1)(b) so far as it relates to “annoyance” may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive in the sense traditionally used in State criminal statutes… Moreover there is no intelligible boundary within which the “causes annoyance” limb of s 7 can be read down to save it as a valid expression of the regulating power.
Here’s where things would really have differed under the Charter. In my view, a court bound by Charter’s interpretation mandate would have felt enabled – indeed obliged – to come up with a gloss on annoy that limited it to more serious annoyances of the ‘fighting words’ sort. (Weirdly, the judgment contains nary a reference to Coleman v Power, the principal High Court authority on the freedom-of-expression-inspired reading down of summary offence provisions like clause 7!) So, if this was a Charter case, then clause 7 wouldn’t have been ruled invalid and, indeed, the World Youth would have been left with a measure of protection from really annoying conduct (and Evans and Pike would have got some useful ground rules out of the court.)
Fourth, whereas the FCA could only approach the case by either re-interpreting or invalidating either the head statute or the regs, a Victorian court would have an additional legal angle: to consider whether the Governor, in making the regs, breached the Charter’s conduct mandate:
38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Charter s. 38 opens up two new questions. One question is whether the making of the regs (including clause 7) was the only reasonable option open to the Governor given the other laws that apply to him (or the government), including the need to give effect to the head statute:
58(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, regulations may be made for or with respect to the following:… (b) regulating the use by the public of, and the conduct of the public on, World Youth Day venues and facilities,
A second, perhaps more pertinent, question is whether or not the Governor (or the government) gave ‘proper consideration’ to free speech rights when the regs, especially clause 7(1)(b), were made. These same questions could also be asked about the Minister’s decision to gazette various matters that affected Pike and Evans, including which areas were covered by the reg 7. Arguably, these sorts of questions are more relevant ones to ask than the more esoteric interpretation and ultra vires questions that the FCA was forced to focus on in this case.
Fifth, and finally, it’s worth wondering whether Victoria would have ever got to this silly point. Even NSW’s government seemed embarrassed by its regs and its defence of them in court was decidedly tepid. The FCA, alive to the politics behind the case, quoted Lord Hoffamn in R v Home Secretary; ex parte Simms  UKHL 33, in a passage that was actually about the Human Rights Act 1998 (UK):
The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because 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.
If the World Youth Day Act 2006 or, more pertinently, the World Youth Day Regulation 2008 had been subject to SARC scrutiny under its Charter term of reference, would clause 7 have ever become law? (I’m not sure why those regulations weren’t the subject of a report by the NSW Parliament’s Legislation Review Committee, which has a similar function to SARC, but operates without the benefit of Statements of Compatibility in relation to bills or Human Rights Certificates in relation to regulations.)