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
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.
Indeed: badly drafted, I think. It was passed in a hurry in a Government Gazette rather than normal processes…really dodgy.
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.
bizarre law, rightly quashed.
next they will outlaw emotions like hate …
It’s another example of the Nanny State SL was talking about in a previous post.
Outlawing violent protests is one thing, but outlawing annoying protests essentially ensures that all protests are outlawed.
It just seemed totally unnecessary, and the Catholic Church didn’t even want such a law to be passed. All the stamps of a bizarro Iemma decision.
Could we say that Iemma bent over even further than the priests wanted him to?
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.
Outstanding!
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Five and half grand for saying put a condom on!!! Jay-sus! Iemma should be flogged.
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I have a feeling that protesting might be coming in for a rough ride. In times like these it also becomes vital and relevant.
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With that in mind it’s time for them to get decent haircuts.
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
Conrad, I think Australians take a lot of things for granted. I used to share an office with a girl from our Vietnam branch, and her comments on political protest were a stark reminder to me of how lucky we are.
Adrien, I agree: in times like these, the right to dissent is pivotal. And even the right to annoy.
But I’m sure the protesters will be the same as they’ve always been. From participating in protests as a student, I found that there was a core group of protesters who just protested about anything. It’s when a protest spreads beyond that core group that you know there’s an issue which really touches people.
Now just imagine if “anti annoyance” legisation was introduced for the web. Every blog and discussion group would have to be shut down overnight.
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).
Update; floodgates opened!
http://armagnacd.blogspot.com/2008/07/legal-loophole-exploited.html
That photo’s been doing the rounds for a few weeks. Still hilarious though!
Jacques,
Not even in Oz - check out the parking sign. Sorry to be a killjoy.
Anglicans in the UK? I thought they looked more Anglican than Catholic, but I’m scarcely an expert (only ever attended church when one of my various schools made me do so).
The parking permit signs has text starting with Gjal…, so I would guess Denmark.
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.
Um, I think I’ve found the source - seems to be an Icelandic guy called Karl Gunnarson. There’s a whole series of them.
The dignitaries involved are apparently from the State Church of Iceland
…Thus, nothing to do with WYD. Obviously Iceland doesn’t have an anti-annoyance law!
Good sleuthing there
Ah, I can’t resist a puzzle!
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