Right to annoy

By Legal Eagle

Two protesters have successfully challenged a New South Wales law that prevents people from “annoying” World Youth Day participants. What a farcical law! But it does really exist. Clause 7 of the World Youth Day Regulations 2008 (NSW) provides that:

(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that: 

(a) is a risk to the safety of the person or others, or 

(b) causes annoyance or inconvenience to participants in a World Youth Day event, or 

(c) obstructs a World Youth Day event.

(2) A person must not, without reasonable excuse, fail to comply with a direction given to the person under subclause (1). 

Maximum penalty: 50 penalty units. [emphasis added]

The protesters, Amber Pike and Rachel Evans, had formed a NoToPope group which proposed to hand out condoms and protest against the Catholic Church’s attitude to abortion, contraception and homosexuality. Naturally, such conduct risked contravening Clause 7(1)(b) of the Regulations above. 

In Evans v State of New South Wales [2008] FCAFC 130, the Federal Court declared that Clause 7(1)(b) was invalid to the extent to which it applied to conduct which may cause annoyance to participants in World Youth Day events. The Court found that it should not construe legislation in a way which interfered with fundamental common law rights, including the right to freedom of speech. The Court said that annoyance was a subjective concept, and very much depended on the individual concerned. It concluded at [83]:

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. Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed. 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.

However, “inconvenience” was capable of an objective definition, and that remained in the statute as a legitimate limitation on freedom of speech.

Sounds like an eminently sensible decision by the Federal Court to me. Charterblog has a great analysis of how the likely outcome of a similar case would differ in Victoria (where we have a Charter of Human Rights). Charterblog decides that perhaps the Charter would only rule out moderate to mildly annoying conduct, but that the presence of the Charter might prevent such stupid legislation being enacted in the first place.

For other blawg analyses, see Armagnac’d and WSJ Law Blog (yup, this issue made it to the US).

Update

Hmm, is this annoying or just funny?

(Via Armagnac’d)

22 Comments

  1. Posted July 16, 2008 at 8:43 pm | Permalink

    It’s strange that they chose such a subjective word as “annoy.” I had assumed that the word was given a more precise definition somewhere else in the regulations, but it appears not.

  2. conrad
    Posted July 17, 2008 at 6:52 am | Permalink

    The really strange thing about that legislation (not that strange things arn’t expected from Iemma), is actually how unnecessary it was — I wonder what they actually expected the protestors to do apart from have a civil protest? It’s not like there was a high risk of chaos or violence that you get from other protests, and nor was there any indication of it.

  3. pete m
    Posted July 17, 2008 at 7:02 am | Permalink

    bizarre law, rightly quashed.

    next they will outlaw emotions like hate …

  4. Posted July 17, 2008 at 10:21 am | Permalink

    Could we say that Iemma bent over even further than the priests wanted him to?

  5. conrad
    Posted July 17, 2008 at 6:49 pm | Permalink

    I’m not sure that Nanny State is the best description — that implies the government actually wants to help people. Laws against peaceful protests are better described as Stalin-State or Mao-State.

    More disturbing is how little Australians mind — they obviously haven’t been to such countries to see the consequences.

  6. Posted July 17, 2008 at 6:55 pm | Permalink

    Outstanding!
    .
    Five and half grand for saying put a condom on!!! Jay-sus! Iemma should be flogged.
    .
    I have a feeling that protesting might be coming in for a rough ride. In times like these it also becomes vital and relevant.
    .
    With that in mind it’s time for them to get decent haircuts. 🙂

  7. Posted July 17, 2008 at 7:02 pm | Permalink

    BTW – I only meant that protesting only really becomes vital when there’s a clampdown on it. I didn’t mean to suggest that they’re gonna be getting interesting any time soon. It’ll be business as usual I’m sure….

    Whaddywe want
    No more violence or destruction
    Whendowewannit?
    By 12 noon tomorrow or we’ll blow up parliament

  8. John Hasenkam
    Posted July 18, 2008 at 12:29 am | Permalink

    Now just imagine if “anti annoyance” legisation was introduced for the web. Every blog and discussion group would have to be shut down overnight.

  9. conrad
    Posted July 18, 2008 at 6:12 am | Permalink

    Yes, your Vietnam story reminds me of working in China and HK. To me the interesting effect is actually how long people stay “programmed” for (i.e., won’t say anything about anything). I was always surprised how many years the mainland students living in HK would take before they’d actually say anything about anything even mildly controversial (like “look there is one of those Falun-Gong groups that are protesting again in HK”, or “who are those Taiwanese groups that appear now and then”, let alone “I wonder why we call ourselves communits anymore”). Generally it took more than a decade and often never (the older mainlanders oddly enough took less time — but some of them still hate the government from the Tiananmen square massacre). The consequences are obvious, in that problems simply fester forever and never get fixed, since no-one ever says anything until its really too late (SARS being an obvious example — but its basically an endemic problems which leads to corruption and nepotism everywhere).

  10. Posted July 18, 2008 at 10:33 am | Permalink

    Update; floodgates opened!
    http://armagnacd.blogspot.com/2008/07/legal-loophole-exploited.html

  11. Jacques Chester
    Posted July 18, 2008 at 1:38 pm | Permalink

    That photo’s been doing the rounds for a few weeks. Still hilarious though! 🙂

  12. Posted July 18, 2008 at 3:55 pm | Permalink

    Jacques,
    Not even in Oz – check out the parking sign. Sorry to be a killjoy.

  13. Posted July 18, 2008 at 4:40 pm | Permalink

    The parking permit signs has text starting with Gjal…, so I would guess Denmark.

  14. Posted July 18, 2008 at 5:16 pm | Permalink

    Denmark’s a Lutheran country, and Lutherans don’t wear ‘fancy’ vestments like that. If we could get a decent enough resolution version to look at the car numberplates, then we may have a chance of figuring it out.

  15. Posted July 18, 2008 at 7:02 pm | Permalink

    Good sleuthing there 🙂

2 Trackbacks

  1. […] interest from afar, noting both the Pope’s clear humanity and dignity and the state’s heavy-handed state responses to protest. I think Heath G over at Catallaxy is right when he argues that the various state […]

  2. […] and ‘insult’ and ‘humiliation’. Laws like this don’t work well, and sometimes courts strike them down, as happened when — during protests over Pope Benedict’s visit and World Youth Day in […]

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