An annoying argument

More bodginess! I’m more than a little baffled by a piece by Williams & McGarrity in Wednesday’s SMH. They argue that Evans v State of NSW [2008] FCFCA 130 shows the need for a federal charter of rights:

The protesters have won this round. Next time they are not likely to be so fortunate. The Federal Court decision illuminates the fragile nature of freedom of speech in Australia. The right deserves better protection than the legal presumption that Parliament does not intend to breach the right unless it sets this out in clear terms. It is long past time that such an important freedom was safeguarded in a national charter of human rights.

Now, there seem to be three things wrong with this argument:

First, we already have ‘better’ protection for free speech in Australia than the common law presumption against infringing rights: the Constitution’s freedom of political communication. True, it wasn’t tested in this case, because the Federal Court felt that they had interpreted away all of Evans’s and Pike’s problems. But, if interpretation wasn’t an option, there’s surely a good chance that the Constitutional remedy would have been available. Aside from the requirement of proving that their communication was ‘political’ – and, really, is there any doubt about that given the desire of Evans and Pike to talk about hotbed issues like same-sex marriage and state funding of religious events? – this Constitutional protection raises issues that are pretty damn similar to those under Charter s. 15(2). The big difference: the Constitution would actually invalidate the regs if they (or their head statute) couldn’t be read down. 

And that’s the second point: if, as would seem safe to assume, Williams & McGarrity are talking about a statutory charter that preserves parliamentary sovereignty, then such a statute wouldnt ‘safeguard’ freedom of speech any more than the common law interpretative rule that the Feds applied. If the Victorian parliament wanted to enact a clause 7-like law against annoying people (and, indeed, they have) then they can do so in clear terms (or, if they were really keen, they could use the override declaration.) Either way, our Charter won’t stop them. And that’s precisely how it’s meant to work. True, if they didn’t use an override, then they might face a dreaded declaration of inconsistent interpretation (but probably not in the Federal Court) but Williams’ & McGarrity’s point – that parliament could go ahead if it wanted to – still stands in Victoria.

Finally, I’m also a little baffled at the claim that a ‘national’ charter could solve the problem in NSW. That could only happen if the Commonwealth parliament tried to use its external affairs power (or whatever other constitutional head of power was handy) to override contrary state laws. Is such a proposal seriously on the table federally?

Now, as I argued earlier, a Charter might have changed the result in NSW, but not in the way that Williams & McGarrity described. Possibly, a parliamentary dialogue process – especially a requirement for human rights certificates for regs – might have drawn earlier attention to the dreaded clause 7. Also, the Federal Court might – when bound by an interpretation mandate – have been able to re-interpret words like ‘annoyance’, ‘inconvenience’ and ‘distribute’ so that they posed a narrower and more certain restraint on freedom of speech (while also ensuring a better measure of protection for the WYD folks’ freedom of religion.) It’s those narrower, gentler influences that are at stake in a debate about a Charter-like statute federally and in NSW. These broader calls for ‘better’ protection are, I think, just playing into the hands of the scaremongers.

2 thoughts on “An annoying argument

  1. Generally agree with your thrust, but unsure whether your first point re the implied right really holds up.

    You say, “But, if interpretation wasn’t an option, there’s surely a good chance that the Constitutional remedy would have been available.”

    Putting to one side the question of whether Pike’s and Evans’ proposed speech fell within the first limb of Lange (didn’t they just wanna have fun in condom costumes, not critique state policies?), the High Court in Coleman muddied the waters on how the second limb is to be applied. Remember, in Coleman the High Court gave a fair bit of leeway to a public order provision (for various reasons). Would another court do likewise, assuming the NSW Parliament could find a happier expression than “annoy”?

  2. re: 1st limb: Their evidence of their intentions in the FCA (perhaps poltiicised up on legal advice) was that they wanted to discuss all manner of political issues and hand out leaflets and t-shirts with political slogans, including ones that critiqued the very law they were challenging. At least as political as Coleman’s missive.

    re: 2nd limb: If there was a happier expression than ‘annoy’ – say of the fighting words genre – then a court probably would knock back the challenge. But Williams and McGarrity seem to argue that just fixing up the head statute would mean that the current clause 7 could be validly re-enacted.

    Of course, none of these things can be predicted with any certainty. And I doubt that Pike and Evans would win on the constitutional point before the current High Court (or even Spigelman’s) but that’d be a problem under a charter too.

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