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  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 :
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.
Hmm, is this annoying or just funny?