Malcolm Brown, smh
July 15, 2008 - 3:51PM
Two Sydney activists have won a Federal Court challenge to special World Youth Day laws that carry $5500 fines for annoying pilgrims.
The NoToPope Coalition scored the victory when the Federal Court ruled that legislation that would have prevented its members from handing out leaflets and other items was invalid in law.
The court, comprising Justices French, Branson and Stone, said that part of the World Youth Day Act, passed by the NSW Parliament to keep order during the World Youth Day events, "should not be interpreted as conferring powers that are repugnant to fundamental rights and freedoms at common law in the absence of clear authority from Parliament".
The judges noted that Rachel Evans, a university student who had challenged the legislation, proposed to hand out condoms and flyers containing information in relation to certain "political matters" on the Pilgrim Walking Route at Moore Park on Saturday.
On the same day, Amber Pike, who had joined Ms Evans in the action, proposed to hand out condoms, candles, stickers contianing political slogans and polititical leaflets at Central Station and Moore Park.
The judges said that, in their view, none of the items the activists proposed to distribute were proscribed articles within the meaning of the act. Nor were "symbolic coat-hangers" they planned to hand out to draw attention to the backyard abortion problem.
Annoyance clause invalid
The judges said that the interpretation of clause 7.1 of the act, which allowed regulation of conduct deemed to be a cause of "annoyance", was invalid because it "affects freedom of speech in a way that, in our opinion, is not supported by the statutory powers".
There was "no intelligible boundary" on what "causes annoyance".
The regulation relating to annoyance "could be expected to have a chilling effect upon the exercise of their freedom of speech because of the very uncertainty about the degree of its infringement upon that freedom", they said.
Another part of the same clause, which dealt with causing "inconvenience", had a more "objective content" and could draw on individual judgment.
It gave protection against disruptive behaviour, which caused inconvenience to participants, and behaviour that might give rise to a risk of public safety.
They added: "Over and above these provisions the general criminal laws of the state relating to disorderly and offensive conduct and the like are able to be invoked should that be necessary."
Outside the court, Ms Evans said the result was "a major victory for the protest movement".
She said: "We now have a lot more confidence to go to the streets to campaign against the condemnation of condoms, homosexuality and abortion.
"We can hand out what we want to hand out," she said. "We can wear our [No to the Pope] T-shirts now and they cannot be deemed to be annoying.
"We don't want to inconvenience anyone. We want to talk to them about the Pope's position on these matters."
Stephen Blanks, secretary of the NSW Council for Civil Liberties, who accompanied Ms Evans from the court, said the judgment illustrated that the Government did not intend to give the minister power to make regulations about that type of conduct. But what was really needed was a Bill of Rights, which would enshrine principles such as freedom of speech.
Ms Evans then walked away and handed a packet of condoms to a passing pilgrim, who took one look and dropped it on the footpath.
The Catholic Church declined to comment on the Federal Court ruling but World Youth Day co-ordinator Bishop Anthony Fisher earlier downplayed the likelihood of protest.
The church had backed the anti-annoyance regulations, but denied it had pushed or requested any special powers.
Bishop Fisher said at a media briefing before the judgment: ''I think myself this week ... even people who have been a bit cranky with World Youth Day or have their own other issues, whatever they are, will be swept along by the beauty and joy of these young people and they'll just want to be part of that.
''I suspect we won't have much in the way of protest but such protests as there are I'm very hopeful will be peaceful and respectful and there will not be the need for police interventions or big laws."
The Greens MP, Sylvia Hale, welcomed the court's decision.
"The striking down of the regulation demonstrates that the Governmentis both incompetent and obsessed with expanding police powers at theexpense of the rights of its citizens," she said.
"It is fortunate that the Federal Court has acted to uphold the basicrights of the citizens of NSW against the incompetence and excess ofthis State Government," she said.
NSW Police Commissioner Andrew Scipione said the decision would have no impact on policing of World Youth Day events.
He said police had sufficient powers to ensure the safety of pilgrims during the celebrations, which officially began today.
"We respect the court's ruling,'' Mr Scipione said. "Effectively the court has upheld all the regulations apart from the phrase 'causes annoyance'.
"The ruling will not impact on the way police play their part in this festive event.''
Time of celebration
Mr Scipione said WYD was a time of celebration, and would not be policed in the same way as last year's APEC summit of world leaders in Sydney.
"We have said many times that this is not APEC,'' he said. "Police understand there will be protests, people have a democratic right to do that.
"But with that right comes a responsibility to act within the law. I hope those who do protest are mindful that this state is playing host to thousands of guests who have come here in a very positive and festive frame of mind.''- with Linda Morris, Jano Gibson, and AAP