• Any

Evans v State of New South Wales[2008]FCAFC 130

ADMINISTRATIVE LAW–declarations – delegated legislation – whether ultra vires –approach to construction – Act and Regulationproviding for control ofconduct of public in connection with major public event – potentialrestriction on protest activities– construction of regulation makingpower – presumption against interference with fundamental rights andfreedoms –part Regulation beyond power



CONSTITUTIONAL LAW– validity of State statute – whether impermissible burden onimplied freedom of political communication – priorquestion ofconstruction of Act and validity of Regulation made under it –undesirability of deciding unnecessary constitutionalquestion



HUMANRIGHTS– freedom of speech – freedom of religion



REMEDIES– declarations – discretion



STATUTORY INTERPRETATION – construction –presumption against interference with fundamental common law rights and freedoms– principle oflegality – freedom of speech – freedom ofreligion



WORDS AND PHRASES– "distribute", "conduct","annoyance", "inconvenience".













WorldYouth Day Act 2006(NSW)s 58

Judiciary Act 1903 (Cth)s39B



World Youth Day Regulations 2008cl 4, cl 7











RACHEL EVANS and AMBER PIKE v STATEOF NEW SOUTH WALES

NSD 1018 OF 2008



FRENCH, BRANSON ANDSTONE JJ

15 JULY 2008

SYDNEY

THE COURT ORDERS THAT:

1.It be hereby declared that Clause 7(1)(b) of theWorld Youth DayRegulation 2008 is invalid, as beyond the regulation making power conferredbys 58 of theWorld Youth Day Act 2006(NSW), to the extent thatit purports to empower an authorised person to direct a person within a WorldYouth Day declared area to ceaseengaging in conduct that causes annoyance toparticipants in a World Youth Day event.

2.The application be otherwise dismissed.

3.The Respondent pay one third of the Applicants’ costs of theapplication provided that either party may apply by writtensubmission, filedand served on or before 29 July 2008, to vary this costsorder.





Note:Settlement and entry of orders is dealt with in Order 36of theFederal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1World Youth Day is a major annual gathering of young members of theCatholic Church. It was established by Pope John Paul II in1986. Every two orthree years World Youth Day is taken to an international host city and comprisesa week long series of eventsattended by the Pope and a large number of youngpeople from around the world. The numbers can run into the hundreds ofthousands. In 2008 World Youth Day is being held in Sydney and runs from todayto 20 July 2008.

2Religious beliefs and doctrines frequently attract public debate andsometimes have political consequences reflected in governmentlaws and policies.World Youth Day has attracted the attention of an organisation known as the Noto Pope Coalition (the Coalition). It is an unincorporated association ofpersons and groups which are opposed to the teachings of the Catholic Church onsexuality,contraception and reproductive rights.

3Members of the Coalition see World Youth Day events as appropriate venuesfor protests and other activities intended to mobilisecommunity support for,amongst other things, changes to certain Federal and State laws. The two womenwho have brought these proceedingsare student activists associated with theCoalition. They intend,during the World Youth Day celebrations, tocommunicate to the participants and the community generally their views aboutsexual tolerance,contraception and reproductive freedom and to provide to them,and to members of the public items including t-shirts, leaflets, flyers,stickers, condoms and coat-hangers. The coat-hangers are intended to symbolisethe death of women from "backyard" abortions.

4The applicants are concerned that theWorld Youth Day Act 2006(NSW) (the WYD Act) and theWorld Youth Day Regulation 2008 (theRegulation) will prevent them from carrying out their planned activities. TheAct has established a World Youth Day CoordinationAuthority (the Authority)with a range of functions and powers. Under s 46 of the Act persons areprohibited from selling or distributingprescribed articles in areas controlledby the Authority between 1 July 2008 and 31 July 2008. The applicants say thatthis willprevent them from distributing the things they want to distribute inorder to try to get their message across to the public. Theyclaim that theirintended message ultimately relates to Federal Government laws and practices andthat the section which would prohibitthem from distributing what they want todistribute infringes their implied freedom of political communication under theCommonwealthConstitution.

5The applicants also say that their implied freedom was impermissiblyinfringed by the Regulation. One clause of that Regulation,cl 4, prescribesvarious items which cannot be sold or distributed without the approval of theAuthority. Another clause, cl 7,gives police officers and authorised personsthe power to direct people in World Youth Day declared areas to cease engagingin conductthat causes annoyance or inconvenience to participants in a WorldYouth Day event. The applicants also say that both cll 4 and 7are beyond thescope of the Act and therefore invalid.

6For the reasons which we now publish, we are of the opinion that the listof prescribed items subject to control as to their saleand distribution iswithin the authority conferred by the Act. We are also of the opinion that mostof the items that the applicantswish to distribute are not covered by the listof prescribed items. The provisions relating to the control of sale anddistributionof prescribed items do not have the effect of preventing theapplicants from doing the things that they want to do. No questionof theinfringement of the implied freedom of political communication therefore arisesin relation tos 46 or cl 4 of the Regulation.

7The position is different in relation to that part of the Regulation whichwould empower an authorised person to direct peopleto cease engaging in conductthat causes annoyance to participants in a World Youth Day event. In soconcluding, we have interpretedthe WYD Act on the presumption that it was notthe intention of Parliament that regulations would be made under the Actpreventingor interfering with the exercise of the fundamental freedom of freespeech. We have applied a principle of interpretation in favourof that freedomwhich has been accepted by the Courts of this country since federation and whichhas its roots deep in the commonlaw inherited from the United Kingdom at thetime of colonisation. Clause 7 is invalid to the extent that it seeks toprevent merelyannoying conduct. Moreover its scope is uncertain. The otherelements of cl 7 seek to prevent risks to public safety, inconvenienceto WorldYouth Day participants and disruption of World Youth Day events. The applicantschallenge to these provisions of the Regulationfail. They do not infringe theimplied freedom of political communication because they are directed not tocommunication, but topublic safety and interference with the rights andfreedoms of others.

8In reaching these conclusions we accept and recognise the importance ofthe freedom of people to adhere to the religion of theirchoice and the beliefsof their choice and to manifest their religion or beliefs in worship,observance, practice and teaching.

9The application succeeds to the limited extent that the part of cl 7relating to annoyance to participants is declared invalid. The remainder of theRegulation and the WYD Act stand.

APPLICATION TO THE COURT

10By an application dated 7 July 2008 the applicants claimed the followingrelief:

1.A declaration that subsection 46(3) of theWorld Youth Day Act 2006(NSW) ("theAct") is invalid and of no effect as it impermissibly burdensthe implied freedom of communication on matters of government or politicsarising under the CommonwealthConstitution.

2.A declaration that clause 4 of theWorld Youth Day Regulation 2008(NSW) as amended ("the Regulation") is invalid and of no effect as it:

(a)impermissibly burdens the implied freedom of communication on matters ofgovernment or politics arising under the CommonwealthConstitution; and/or

(b)is ultra vires theAct.

3.A declaration that clause 7 of the Regulation is invalid and of no effect asit:

(a)impermissibly burdens the implied freedom of communication on matters ofgovernment or politics arising under the CommonwealthConstitution; and/or

(b)is ultra vires theAct.

JURISDICTION

11The jurisdiction of the Federal Court to hear and determine theapplication derives principally froms 39B(1A) of theJudiciary Act 1903(Cth).Section 39B(1A) relevantly places within the original jurisdictionof the Federal Court "any matter ... arising under theConstitution, orinvolving its interpretation" (s 39B(1A)(b)). In this provision the term"matter" takes its constitutional meaning whichinvolves the existence of acontroversy as to some immediate right, duty or liability to be established bythe determination of theCourt:Truth About Motorways Pty Limited v MacquarieInfrastructure Investment Management Limited[2000] HCA 11;(2000) 200 CLR 591 per GaudronJ at [43].

12The applicants also placed reliance ons 32 of theFederal Courtof Australia Act 1976(Cth) and the Court’s "accrued" jurisdiction.Section 32(1) of theFederal Court of Australia Act 1976 (Cth)provides:

13It is not necessary in this case to give consideration to the extent, ifany, to whichs 32(1) expands the jurisdiction of the Court, or to thenature and extent of the Court’s "accrued" jurisdiction. As French J,withwhom Beaumont and Finkelstein JJ agreed, observed inJohnson TilesPty Ltd v Esso Australia Pty Ltd[2000] FCA 1572;(2000) 104 FCR 564 at[85]:

URGENCY AND IMPORTANCE

14This matter was prepared for hearing, and heard and determined, as amatter of urgency. As mentioned above, the application wasfiled and served on7 July 2008. Notices as required bys 78B of theJudiciary Act werealso served on the Attorneys General of the Commonwealth and the States on thatday. The main World Youth Day events are scheduledto commence during theafternoon of 15 July 2008. The parties cooperated with the Court in adhering toa tight timetable for thepreparation of the matter for final hearing on 11 July2008.

15The Acting Chief Justice considered that the matter was of sufficientimportance to justify a direction that the original jurisdictionof the Court inthe matter be exercised by a Full Court (see s 20(1A) of the Federal CourtAct). In exercising the discretion to so direct his Honour additionally tookinto account that appellate review of the first instancejudgment of the Courtmight not be a practical possibility because of the short period of time between11 July 2008 and the commencementof the main World Youth Day events.

STATUTORY PROVISIONS

16The long title of the WYDAct is:

17The Authority is constituted as a corporation by s 5 of the WYDAct.Section 12(1) of the WYDAct provides that the principal function of theAuthority is:

18Section 12(2) identifies additional functions of the Authority but noneof these functions is suggested to have any present relevance.Section 12(6)gives the Authority "such other functions as are conferred or imposed on it byor under this or any otherAct".

19Section 3 of the WYDAct is a definition section. It provides thatWorld Youth Day event means any event determined by the Authority to bean event associated with World Youth Day 2008. It appears that, as at the dateof the institution of this proceeding, the Authority may not have determined anyevent to be a World Youth Day event. During thecourse of the hearing seniorcounsel for the State of New South Wales (the State), Mr Sexton SC SG, handed tothe Court a documentdated 10 July 2008 by which the Chief Executive Officer ofthe Authority, acting in the name of and on behalf of the Authority (sees 8(2) of the WYDAct), purported to determine a significant number of"events" specified in a schedule. To illustrate the way in which the Authorityhas purported to determine certain events to be World Youth Day events, we notethat the first three "events" specified in the scheduleare identified in thefollowing way:

20There appears to be no requirement to publish a list of the eventsdetermined to be World Youth Day events. There is also noexplicit power givento the Authority to make such a determination although, presumably, such a powermay be implied from the definitionand the scheme of theAct. In any case, theCourt did not hear submissions as to the validity of the purported determinationof World Youth Day events. Nothingin these reasons for judgment should beunderstood as implying that the Court holds a view, one way or the other, as tothe validityof the purported determination.

21Section 3A gives meaning to the statutory expressionWorld Youth Daydeclared area. It relevantly provides:

(1)For the purposes of thisAct, aWorld Youth Day declared areais any area that is designated to be a World Youth Day declared area by an orderunder this section.

(2)The Minister may, by order published in the Gazette, designate any area thatthe Minister determines is required for hostinga World Youth Day event, or forthe provision of services in relation to a World Youth Day event, to be adeclared area for the period(if any) specified in the order.

Note: The Minister may amend or repeal an order made under this section. Seesection 43 of theInterpretation Act 1987.

(3)An area is a declared area for the purposes of thisAct only for:

(a)the period specified in the order, or

(b)if no period is specified in the order-the World Youth Day period or, if theWorld Youth Day period has already commenced, theremainder of that period.

(4)An order under this section may be made before or during the World Youth Dayperiod.

22Three categories of areas have been designatedto be World Youth Day declared areas. The first category is event sites. Thereare many designated sites including Darling Harbour, the Domain, CentennialPark, Royal Botanic Gardens, the University of Sydney,Art Gallery of New SouthWales, Sydney Harbour Bridge and the Sydney Opera House. The second category ofareas is described as "Accommodationand Catechesis sites". There areapproximately 600 designated sites in this category, nearly all being eitherschools or churches. The third category of areas are described as "Transportsites". The designated transport sites are mainly railway stations. Theyinclude stations in the Sydney central business district such as Central RailwayStation, Town Hall Railway Station and Wynyard RailwayStation and also outersuburban railway stations including Campbelltown Railway Station, CabramattaRailway Station and BlacktownRailway Station.

23Section 3B of the WYDAct gives meaning to the statutory expressionWorld Youth Day period. For the purpose of the WYDAct that expressionmeans the period commencing on 1 July 2008 and ending on 31 July 2008 or suchlater date as may be prescribed byregulations. The Court’s attention wasnot drawn to any regulation extending the World Youth Day period.

24Section 46 of the WYDAct is concerned with the sale and distribution ofarticles in certain public places. It relevantly provides:

(1)For the purposes of this section, anAuthority controlled areais any of the following areas:

(a)the area comprising, or comprising and adjacent to, a transport facility orinterchange or a World Youth Day venue or facility,being an area that isspecified or described in an order of the Minister published in the Gazette,

(b)a public place, or any part of a public place, that is within 500 metres ofa transport facility or interchange or a World YouthDay venue or facility,being a public place, or part of a public place, that is shown on a map referredto in an order of the Ministerpublished in the Gazette.

...

(3)A person must not sell or distribute a prescribed article during the salescontrol period in an Authority controlled area withoutthe approval of theAuthority.

(4)An authorised officer may give a direction to a person who sells ordistributes any prescribed article during the sales controlperiod in anAuthority controlled area without the approval of the Authority to remove thearticle, and any other prescribed articleswithin the person’s possessionor under the person’s control, from the area immediately or by such othertime as maybe directed.

(5)A person must not fail or refuse to comply with a direction given to theperson by an authorised officer under subsection (4).

Maximum penalty: $5,000.

(a)approvals under this section, including:

(i)applications for approval, and

(ii)application fees, and

(iii)determination of applications, and

(iv)appeals against determinations of applications, and

(b)the making and determination of appeals under subsection (8).

"authorised officer" means a person authorised in writing by theAuthority for the purposes of this section.

"prescribed article" means an article of a class prescribed by theregulations as being a prescribed article for the purposes of this section.

"sales control period" means the period from 1 July 2008 to 31July 2008, inclusive, or such other period as may be prescribed by theregulations for thepurposes of this section (being a period that does not beginbefore 1 June 2008 or end after 31 December 2008).

sell includes any of the following:

(a)sell by wholesale, retail, auction or tender,

(b)hire,

(c)barter or exchange,

(d)supply for profit,

(e)offer for sale or hire, receive for sale or hire, have in possession forsale or hire or expose or exhibit for sale or hire,

(f)conduct negotiations for sale or hire,

(g)consign or deliver for sale or hire,

(h)solicit for sale or hire,

(i)cause or permit anything referred to above,

and includes to sell from a standing vehicle or any article.

25Section 58(1) of the WYDAct gives the Governor the conventional power tomake regulations, not inconsistent with theAct, for or with respect to anymatter that by theAct is required or permitted to be prescribed or that isnecessary or convenient to be prescribed for carrying out or giving effect totheAct.Section 58(2) specifically authorises the making of regulations for orwith respect to "regulating the use by the public of, and the conduct ofthepublic on, World Youth Day venues and facilities". The expressionWorldYouth Day venue or facility includes a World Youth Day declared area(s 3 of the WYDAct).

26Clause 4 of the Regulation prescribes the following classes of articlesfor the purpose of s 46(10) of the WYDAct:

(a)items of food and drink,

(b)religious items (for example, rosary beads, candles, candle holders, prayertokens and prayer cards),

(c)items of apparel, including headwear, (for example, t-shirts, jumpers,jackets, pants, pyjamas, singlets, tank tops, shorts,wet weather jackets, caps,visors and hats),

(d)clothing accessories (for example, scarves, bandannas, socks, shoes andthongs),

(e)jewellery,

(f)giftware (for example, key rings, lapel pins, zipper pulls, magnets,removable tattoos, button badges, wristbands, mobile phoneaccessories, computeraccessories, sunglasses, stickers and photo frames),

(g)hardgoods (for example, bottles, mugs, plates, spoons, ceramics andumbrellas),

(h)stationery,

(i)textiles (for example, beach towels and tea towels),

(j)philatelic and numismatic articles (for example, coins, postage stamps,envelopes and first day covers).

27Clause 7 of the Regulation is concerned with the conduct of members ofthe public on World Youth Day declared areas. It provides:

(1)An authorised person may direct a person within a World Youth Day declaredarea 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 Dayevent, or

(c)obstructs a World Youth Day event.

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

Maximum penalty: 50 penalty units.

(3)A person is not guilty of an offence under this clause unless it isestablished that the authorised person warned the personthat a failure tocomply with the direction is an offence.

(a)a police officer, or

(b)a member of an SES unit (within the meaning of theState EmergencyService Act 1989 ) or a member of the NSW Rural Fire Service, but only ifthe member is authorised by the Authority in writing for the purposes ofthisclause.

THE APPLICANTS’ PROPOSED CONDUCT

28The evidence of the applicants about their respective plans tocommunicate with participants in World Youth Day events and withthe publicgenerally during the World Youth Day period was not challenged. It wasrelevantly to the effect set out below.

29Ms Evans is a spokesperson for the Coalition. She is also Secretary ofCommunity Action Against Homophobia, an incorporated communitygroup thatcampaigns on issues such as the Federal same-sex marriage ban and civilunions.

30Ms Pike is part of the Coalition and a member of Resistance, a socialistyouth organisation which seeks to raise public awarenessof issues such assexism, racism, and homophobia. One of the objectives of Resistance is topersuade political parties at both Federaland State level to adopt policypositions that reflect the organisation’s views and, where appropriate, tolegislate to implementthose policy positions.

31Each of the applicants proposes to take part in rallies and protestsorganised by the Coalition during July 2008.

32In particular Ms Evans proposes on 19 July 2008, while in Moore Parkon the Pilgrim Walking Route, to:

(a)wear a t-shirt bearing the slogan "The Pope was Wrong – Put aCondom On!";

(b)hand out condoms and stickers bearing slogans;

(c)hand out flyers and leaflets urging public support for same-sex marriagerights and same-sex couples in Australia and dealingwith the matters identifiedin (d) below;

(d)speak to, and engage in discussion with, participants in the PilgrimageWalk to Randwick about matters including the following:

i.the teaching of the Pope and the Catholic Church on homosexuality, same-sexmarriages, contraception, abortion and use of condomsto prevent HIV;

ii.legal discrimination against same-sex couples in Australia in respect ofmarriage and superannuation entitlements;

iii.the role of developed countries such as Australia and the United States inpreventing foreign aid from being used to provideaccess to abortion indeveloping countries;

iv.the criminalisation of abortion in Australian States and Territories;

v.the fact that the Federal and State governments are hosting and funding thePope’s visit and World Youth Day 2008; and

vi.the importance of ensuring that education curricula do not discriminate ongrounds of homosexuality.

33Ms Pike proposes on19 July 2008, while at Central Railway Station on the Pilgrim Waling Route,to:

(a)wear a giant condom costume and hand out condoms to people in thearea;

(b)speak through a mega-phone and hand out leaflets to communicate her viewson sexual health, contraception, abortion, homophobia,same-sex marriage, thefunding of World Youth Day events and attacks on civil liberties;

(c)hand out candles to raise public awareness of the fact that same-sexmarriage, abortion, birth control and homosexuality are notobstacles to worldpeace;

(d)hand out stickers bearing slogans.

34Ms Pike also proposes to engage in the conduct outlined above (except, itseems, the wearing of the giant condom costume) lateron 19 July 2008 at MoorePark.

35The above statements of intended conduct on the part of the applicantsare confined to conduct pleaded in their amended statementof claim whichdefines their case in that respect. The Court directed that the case proceed onthe pleadings and the applicants’case will be confined to theirpleadings. We accept the pleaded intention as far as it is consistent with theaffidavit evidence. To the extent that any affidavit material goes further, wedisregard it as outside the pleaded case.

THE ISSUES FOR DETERMINATION

36The issues for determination in these proceedings are:

1.Whether s 46(3) of the WYDAct, read with cl 4 of the Regulation,impermissibly burdens the implied freedom of political communication under theConstitution of the Commonwealth.

2.Whether cl 4 of the Regulation is within the scope of the power conferredby the WYDAct to prescribe items for the purposes ofs 46(3).

3.Whether items of a kind that the applicants propose to distribute arewithin a valid prohibition effected by cl 4 of the Regulation.

4.Whether cl 7 of the Regulation impermissibly burdens the implied freedomof political communication.

5.Whether cl 7 of the Regulation is within the regulation making powerconferred by s 58 of the WYDAct.

THE APPROACH TO RESOLVING CONSTITUTIONAL VALIDITY

37The applicants seek declarations of the invalidity ofs 46(3) and cll 4and 7 of the Regulation as infringing the implied freedom of politicalcommunication. In the alternative, they seek declarationsthat cll 4 and 7 ofthe Regulation are outside statutory power.

38The first basis upon which the declarations are sought invokes thejurisdiction of the Court in matters arising under theConstitution andinvolving its interpretation. There is no contention that the jurisdiction ofthe Court is not properly invoked. The alternativechallenge to the validity ofcll 4 and 7 relies upon the contention that they fall outside the regulationmaking power conferredby the WYDAct. That challenge arises entirely under thelaw of New South Wales and ordinarily would not be within the jurisdiction ofthis Court. It is, however, clearly a part of the matter in which theconstitutional challenge is brought and so falls within the "accruedjurisdiction"of the Court.

39Although the constitutional challenge underpinned the primary reliefsought in the application, the question whethers 46(3) or cll 4 and 7 in anyrespect infringe the implied freedom of political communication depends upontheir proper construction and,in the case of the Regulation, whether they arevalid under the WYDAct. If either of the clauses of the Regulation is notvalid because it is not authorised by the WYDAct, then the question ofconstitutional validity falls away.

40If on its proper construction a statute does not offend against anyconstitutional limitation or prohibition it is not ordinarilyappropriate forthe Court to hypothesise a different construction and then test itsconstitutionality. If a regulation is foundto be invalid as not authorised bythe statute under which it is said to be made, then it is not for the Court tohypothesise validityunder the statute so that it may test for validity undertheConstitution. This approach is consistent with, although not a corollaryof, the well-established presumption in favour of the constitutionalityofstatutes:Federal Commissioner of Taxation v Munro[1926] HCA 58;(1926) 38 CLR 153 at180 (Isaacs J);Attorney-General (Victoria) v Commonwealth[1945] HCA 30;(1945) 71 CLR237 at 267 (Dixon J);Chung Kim Lim v Minister for Immigration LocalGovernment and Ethnic Affairs[1992] HCA 64;(1992) 176 CLR 1 at 14 (Mason CJ).

THE VALIDITY OF SECTION 46(3) OF THE WYDACT AND CLAUSE 4 OFTHE REGULATION

41As mentioned above the WYDAct has as its stated purpose "to constitute aWorld Youth Day Co-ordination Authority, to confer certain functions on theAuthorityand to provide for the co-operation of other government agencies inthe planning, co-ordination and delivery of government servicesin relation toWorld Youth Day 2008 and related events; and for other purposes". The functionsof the Authority are set out ins 12 of theAct and are in accord with thefunctions described in the long title.

42Section 58(1) provides, among other things, for the making of regulations"not inconsistent with thisAct" for or with respect to any matter that isrequired or permitted to be prescribed.Section 46(3) of theAct provides:

43A "prescribed article" is defined ins 46(10) as "an article of aclass prescribed by the regulations as being a prescribed article for thepurposes of this section". The articlesthat have been prescribed by theAuthority are listed in the impugned cl 4 of the Regulation, which is set outabove. The "salescontrol period" is the period from 1 July 2008 to 31 July2008, as well as any other period between 1 June 2008 and 31 December 2008thatis prescribed by regulations. A person who fails to comply with an authorisedofficer’s direction to remove a prescribedarticle from the Authoritycontrolled area, is liable to have the article seized by the officer andforfeited to the Crown. Thedefinition of Authority controlled area is found ins 46(1).

44In its written submissions the State of New South Wales (the State)argued that "distribute" ins 46 should be read in the context of theobject of the section, which is to regulate and control who or what may engagein commerce inrelation to World Youth Day events. For that reason the Statesubmitted that "distribute" means distributed in the course of commerce. We donot accept this submission.

45The extended definition of "sale" ins 46(1) which includes not onlya completed sale but also preliminary, subsequent and ancillary aspects of sale,is so comprehensive it suggeststhat by adding the word "distribute" ins 46(3), Parliament intended the section to apply to the non-commercialgiving of a prescribed article. The ordinary meaning of distributedoes notinclude any connotation of a commercial transaction. It is commonly used tomean: to deal out, to spread, to scatter, orto disburse through a space or overan area: The Macquarie Dictionary, 2nd Revised Edition. The New Shorter OxfordEnglish Dictionarygives as examples "Pray distribute my kindest regards amongall friends" and "She distributed memorandum pads, pencils, ashtrays".

46The non-commercial element of the meaning of "distribute" has a longhistory, as is evident in the King James Bible, first publishedin 1611. In itsaccount of the miracle of the loaves and fishes, the gospel of John, 6:11, says"And Jesus took the loaves; andwhen he had given thanks, hedistributedto the disciples, and the disciples to them that were set down; and likewise ofthe fishes as much as they would". Inour opinion, "distribute" ins 46(3) doesnot mean distributed in the course of commerce.

47It follows from the above that, in our view, the validity of cl 4 cannotsuccessfully be challenged on the grounds that it isnot authorised bys 46(3). We do not accept the applicants’ submission that "there issimply no warrant in theAct to justify the prescription by regulation ofarticles such as food and drink, candles, stickers and hard goods". There isnothingin the definition of "prescribed article" that would exclude sucharticles from the ambit of regulation unders 46. The only other subclauseofs 46 that deals with regulation iss 46(9), which ensures that theregulation making power extends to the giving of approval under the section, andprovides for conditionsof that approval and procedural matters such asapplication fees etc. There is nothing ins 46(9) to limit the power of theAuthority to prescribe articles unders 46(10).

48As is clear from our discussion below of cl 7, we accept the generalprinciple that a regulation should not be interpreted asconferring powers thatare repugnant to fundamental rights and freedoms at common law in the absence ofclear authority from theParliament. The applicants submitted that the"excessive reach" of cl 4 falls foul of this principle and observed, in theirwrittensubmissions:

49The concept of "distributing food and drink to the pilgrims" involves anelement of forethought and system which is at odds withthe notion of "aspontaneous charitable act". In our view, the prohibition on the distributionof food and drink would not prohibitthe giving of food or water to a pilgrim indistress. Distributing food and drink has the connotation of sharing between anumberof people and would not apply to relieving the distress of an individualor individuals.

50The applicants further claimed that the excessiveness of cl 4 is furtherillustrated by its operation in respect of their proposedactivities. Theproposed conduct of the applicants as pleaded is set out in detail earlier inthese reasons. In summary, the amendedStatement of Claim asserts that on 19July 2008 the first applicant proposes, while in Moore Park on the PilgrimWalking Route,to hand out condoms as well as flyers and leaflets containinginformation in relation to certain "political matters". The secondapplicantproposes on the same day, in both Central Railway Station and Moore Park or thePilgrim Walking Route, to hand out candles,condoms, stickers containingpolitical slogans and leaflets containing information in relation to certain"political matters". BothCentral Railway Station and Moore Park are WorldYouth Day declared areas under theAct.

51Both applicants gave examples of the slogans that will appear on stickersand badges that they propose to distribute. They includethe following:

•I know condoms save lives - Is that annoying?

•I am not a Catholic! - Is that annoying?

•I know Gays are great - Is that annoying?

•I had premarital sex! Is that annoying?

•I don't believe Mary was a virgin! Is that annoying?

•I don't believe the Pope is infallible! Is that annoying?

•I have a condom on me! Is that annoying?

•I am gay! Is that annoying?

52Theapplicants claimed that "the imposition of a regime which requires [them] toobtain prior permission from the Authority todistribute articles such ascondoms, candles, stickers and leaflets is unjustifiably excessive and cannot besupported by the natureand scope of any relevant provision in theAct".

53In our view none of the classes of prescribed articles would includecondoms. Indeed the New South Wales Solicitor General notonly conceded as muchbut made a positive submission to that effect. Similarly, symbolic coat-hangerssuch as the applicants proposeto distribute do not fall within any of theclasses prescribed. We are also of the opinion that leaflets and flyers whichthe applicantsintend to distribute do not fall within any class of prescribedarticle. The applicants submitted that they might be regarded as"stationery"and therefore come within category (h). We do not accept this submission. Paperon which the leaflets and flyers areprinted may have been "stationery", butonce printed it does not fall within that category.

54The position is more complex in relation to stickers and button badges,both of which are specifically mentioned as examples of"giftware". Interestingly, the term "giftware" is not defined in either the Oxford EnglishDictionary or the Macquarie Dictionary. There is, however, a definition in theEncarta Dictionary (online dictionary), which defines "giftware" as either"goods suitableas gifts" or "goods that are marketed for buying as gifts forother people, e.g. china and crystal". The Macquarie Dictionary describes"wares" as "articles of merchandise or manufacture, or goods". Compound nounsthat include "ware" are not uncommon. They generallydescribe a subcategory ofmerchandise based on the use to which the articles are put, eg kitchenware,houseware; or their composition,eg glassware, silverware. By analogy,"giftware" refers to articles of merchandise that are used as gifts.

55In the case of wares that are classified by use, the classification isneither precise nor exclusive but refers to a common use. Not every item thatmight be used in a kitchen would be classified as kitchenware. Even more sowith giftware. There is almostno article of merchandise that could not begiven as a gift and yet the description "giftware" is not so comprehensive. Whetheran item should be classified as giftware may depend on context. Thismuch can be seen in cl 4(1)(f) where the examples given inbrackets arecomparatively small items that, in the context of theWorld Youth Day Act andRegulations, might serve as souvenirs of the event and appropriate gifts forthose who have an interest in the event. The samecould not be said of thebutton badges and stickers that the applicants propose to distribute. While wedo not deny that such itemsmight be bought and sold or that they might in somecircumstances make appropriate gifts, we do not accept that they fall withinthecategory of "giftware" in cl 4(1).

56Similar reasoning applies to t-shirts. Although they are mentioned in cl4(c) as included in the class of "items of apparel",t-shirts bearing slogans ofthe type that the applicants propose to distribute do not, in our view, fallwithin this class.

57In summary, in relation to the condoms, coat-hangers, t-shirts, leaflets,flyers, button badges and stickers that the applicantwishes to distribute, theargument that the reach of cl 4 is excessive fails because the clause does notcover the items in thosecategories which the applicants wish to distribute. The question whether the reach of cl 4 may be excessive in other respects isnotbefore the Court.

58The second applicant said in her affidavit that she proposes todistribute candles "to raise awareness about the fact that same-sexmarriage,abortion, birth control and homosexuality are not obstacles to world peace". Candles are mentioned in cl 4(1)(b) as fallingwithin the class of "religiousitems". There is no doubt that candles are commonly used as religious items, asfor example theyare burned in churches. Equally clearly candles may be used asentirely secular items, for example to light a dinner table. Candlesare alsocommonly used as symbols of peace. It may be that they derive this symbolismfrom their association with religion. Therewas little argument and no evidencegiven on these matters at the hearing. It is not possible for us to express anopinion as towhich candles would be prohibited as religious items and whichwould not. The issue could only be resolved in the context of a particularprosecution brought following a failure to comply with the regulation.

59The validity ofs 46(3) cannot be determined by considering its operationin isolation from the range of prescribed articles to which it applies. Thequestionof an impermissible burden on the implied freedom of politicalcommunication cannot arise from a consideration of the subsectiontaken byitself. Read together with cl 4 of the Regulation for the reasons which we haveoutlined above, it does not impact on theproposed conduct of the applicants inany way that would constitute a burden on their implied freedom of politicalcommunication. That is sufficient to dispose of the constitutional challenge tos 46(3) within the framework of the case presented to the Court.

THE VALIDITY OF CLAUSE 7 OF THE REGULATION

60In determining whether cl 7 is within the regulation making powerconferred by the WYDAct it is necessary to consider the proper construction ofthe section conferring that power in light of the scope and objects of thatAct.Clause 7 is then to be examined to determine whether, on its properconstruction, it falls within the statutory authority. Thesetwo processes areinterdependent. They are not at large but shaped by the issues fordetermination by the Court.

61As earlier noteds 58(1) confers on the Governor a wide power to makeregulations "... for or with respect to any matter that by thisAct is requiredor permitted to be prescribed or that is necessary or convenient to beprescribed for carrying out or giving effect tothisAct".Section 58(2) beginswith the words "In particular, regulations may be made for or with respect tothe following ...", referring to a list of topicsthen set out. It wassubmitted for the applicants thats 58(2) defined the matters upon whichregulations can be made unders 58(1). We do not accept that submission.Section 58(1) is the grant of a general power to make regulations confined bythe words of that subsection.Section 58(2) puts certain topics beyond doubt asfalling within that general power. It does not limit the general power to thelisted topics. Such a limitation would result ins 58(1) being largelyredundant.Sections 58(1) and58(2) are to be read together determining thescope of the power they confer.

62That is not to exclude the possibility thats 58(1) would be construed aslimited, in its application to the topics listed ins 58(2), by any limitationor qualification arising out of the definition of those topics. For example,ins 58(2)(b) which was relied upon to support cl 7, the regulation making powerrelates to the conduct of the public on "World Youth Day venuesand facilities".Although it is not an issue in this case it is arguable thats 58(1), in itsapplication to regulation of "conduct of the public" might be constrained by thegeographical limits indicated ins 58(2)(b).

63The first limb ofs 58(1) picks up, as subjects of the power which itconfers, matters which by other provisions of theAct are "required or permittedto be prescribed". Examples of those provisions includess 3B,15A,45(4) and46(3). There is no specific prescription mentioned in the WYDAct which wouldsupport cl 7 under this limb ofs 58(1).

64The second limb ofs 58(1) is the class of regulation "necessary orconvenient ... for carrying out or giving effect to thisAct". This requiresthat there be some rational relationship between the regulation and the powers,obligations and liabilities createdby theAct. A regulation could also bejustified, under this general head of power, if it could be shown to have arational relationship withan object or purpose of the WYDAct. Thatrequirement applies to the exercise of the regulation making power with respectto matters listed ins 58(2). A regulation could not be made under thatsubsection that was not necessary or convenient to be prescribed for carryingout or givingeffect to the WYDAct. To accept that constraint is, in practicalterms, to do little more than meet the requirements applicable to the exerciseof anydiscretionary power conferred by a statute namely that it fall within thescope and objects of theAct:Water Conservation and Irrigation Commission(NSW) v Browning[1947] HCA 21;(1947) 74 CLR 492 at 505 (Dixon J).

65The State in its written submissions relied upons 58(2)(b) as the topicof the regulation making power which supports cl 7. It is necessary thereforeto construes 58(2)(b) in order to determine whether cl 7 of the Regulationfalls within it. The authority given bys 58(1) read withs 58(2)(b)relevantly authorises the making of regulations with respect to:

A World Youth Day venue or facility unders 3 covers a World Youth Daydeclared area and any other venue or facility required for hosting a World YouthDay event. By virtue ofs 3A a World Youth Day declared area is any area thatis designated to be a World Youth Day declared area by an order under thatsection. Critical to the scope of the relevant aspect of the regulatoryauthority conferred bys 58(2)(b) is the width of the term "regulating ... theconduct of the public". Its width turns on the nature of the conduct that maybe regulated.

66There is no definition of "conduct" in theAct. In some statutes thatword is given a very expansive meaning including doing or refusing to do any act(s 4(2)Trade Practices Act 1976 (Cth)). The applicable ordinary Englishmeaning in the definition of conduct as a noun in the New Shorter Oxford EnglishDictionaryis:

The term is wide enough, in its ordinary meaning, to encompass any observableact that a human being can do. It may therefore includephysical actions suchas running or walking. It extends to various forms of communication includingspeaking, singing, shouting,holding up placards, distributing pamphlets orstickers or other objects to make a point or wearing some form of apparel whichconveysa message by bearing some form of writing or which otherwise conveyssome sort of message.

67Unconstrained by any limiting principle of construction, the powerconferred by s 58(2)(b), taken in isolation, couldbe used to make aregulation enjoining silence at World Youth Day venues and facilities ormandating prayer. However there are constraints.It is difficult to see how sucha wide application of the words in s 58(2)(b) would be consistent with therequirement in s 58(1)that the regulations be "necessary or convenient ... forcarrying out or giving effect to this Act" or within the scope and objectsofthe Act. In this case however there is an important principle independent ofsuch constraints, which limits the power to regulateconduct.

68The term "regulating ... the conduct of the public" is capable of a rangeof constructions from the regulation of any conceivableconduct to theregulation of conduct relevant to the events on World Youth Day. It mayencompass acts and some or all forms of speechand communication. There areconstructional choices open. It is an important principle that Acts beconstrued, where constructionalchoices are open, so as not to encroach uponcommon law rights and freedoms. That principle dates back to the statement inPotter v Minahan[1908] HCA 63;(1908) 7 CLR 277 in which O’Connor J, quoting fromthe fourth edition of Maxwell PB,On the Interpretation of Statutes(Sweet & Maxwell, London, 1905) (at 304):

See alsoBropho v State of Western Australia[1990] HCA 24;(1990) 171 CLR 1 at 18andCoco v R (1994) 179 CLR 427. In the latter case the High Court said(at 437):

69There has been some discussion whether "fundamental principles"constitute a reliable criterion for a principle favouring onestatutoryconstruction over another. McHugh J, who joined in the joint judgment inCoco 179 CLR 427 from which the above quoted passage is taken, observedinMalika Holdings Pty Ltd v Stretton[2001] HCA 14;(2001) 204 CLR 290 (at [28]):

And further (at [29]):

70Finn J, writing extra-curially, after referring to this passage observedthat a like rule of construction had been adopted anddemonstrated remarkablestaying power in United States jurisdictions but had been the object of a greatdeal of criticism in moderntimes. His Honour observed, with respect, rightly:

While acknowledging the validity of that caution we observe that thelegislature, through the expert parliamentary counsel who preparedraftlegislation, may be taken to be aware of the principle of construction inPotter[1908] HCA 63;7 CLR 277 and later authorities such asBropho[1990] HCA 24;171 CLR 1andCoco 179 CLR 427, and the need for clear words to be used before longestablished (if not "fundamental") rights and freedoms are takenaway. Theprinciple was recently restated by the Full Court inMinister for Immigrationand Citizenship v Haneef[2007] FCAFC 203;(2007) 243 ALR 606;163 FCR 414. In one sense ithas a constitutional dimension.

71As McHugh J said inTheophanous v Herald and Weekly Times Ltd[1994] HCA 46;(1994) 182 CLR 104 (at 196):

In Australia, the exercise of legislative power, whether primary ordelegated, takes place, as it does in England, in the constitutionalsetting of"a liberal democracy founded on the traditions and principles of the commonlaw":R v Secretary of State for Home Department; Ex parte Pierson[1998]AC 538 at 587. Sir John Latham, a former Chief Justice of Australia, writingextra-curially in 1960 in the Law Quarterly Review, said:

InWik v State of Queensland[1996] HCA 40;(1996) 141 ALR 129 at 230Gummow Jreferred to the common law as "... the ultimate constitutional foundation inAustralia".

72Whatever debate there may be about particular rights there is littlescope, even in contemporary society, for disputing that personalliberty,including freedom of speech, is regarded as fundamental subject to reasonableregulation for the purposes of an orderedsociety. The freedoms associated withpersonal liberty are not residual, ie what is left beyond the boundaries oflegal regulation. InHaneef[2007] FCAFC 203;163 FCR 414 the Court quoted with approvalthe observation that:

This approach to construction has been described in the United Kingdom as a"principle of legality" explained by Lord Hoffman inR v Secretary of Statefor the Home Department; Ex parte Simms[1999] UKHL 33;[2000] 2 AC 115 (at 131):

73InElectrolux Home Products Pty Ltd v Australian Workers Union[2004] HCA 40;(2004) 221 CLR 309, Gleeson CJ referred toCoco179 CLR 427 and citedLord Steyn’s judgment inR v Home Secretary; Ex parte Pierson[1997] UKHL 37;[1998] AC 539 at 587, in which his Lordship described the presumption againstthe infringement of fundamental rights and freedoms as an aspectof theprinciple of legality governing the relationship between parliament, theexecutive and the courts. Gleeson CJ said of it(at 329):

74Freedom of speech and of the press has long enjoyed special recognitionat common law. Blackstone described it as "essentialto the nature of a freeState":Commentaries on the Laws of England, Vol 4 at151-152. In 1891Lord Coleridge said:

75There is a particular rule of the common law which gives effect to thevalue of freedom of speech by preventing local authoritiesand publicauthorities from suing for defamation:Derbyshire County Council v TimesNewspapers Ltd[1992] UKHL 6;[1993] AC 534. In that case the House of Lords said itwould be contrary to the public interest to allow a local authority to sue"because to admitsuch action would place an undesirable fetter on freedom ofspeech" (at 549). The same principle was applied by the New South WalesCourtof Appeal inBallina Shire Council v Ringland(1994) 33 NSWLR 680. Inboth the House of Lords and the New South Wales Court of Appeal reference wasalso made to international conventions on humanrights to which the UnitedKingdom and Australia respectively are parties which involve the protection offreedom of speech.

76In its 1988 decision inDavis v Commonwealth[1988] HCA 63;(1988) 166 CLR 79,the High Court applied a principle supporting freedom of expression to theprocess of constitutional characterisation of a Commonwealthlaw. TheAustralian Bicentennial Act 1980(Cth) reserved to the AustralianBicentennial Authority the right to use or licence words such as "bicentenary","bicentennial", "200years", "Australia", "Sydney", "Melbourne", "founding","First Settlement", and others in conjunction with the figures "1788, 1988or88". Articles or goods which bore any of those combinations without the consentof the Authority would be forfeited to the Commonwealth. Some aspects of theseprovisions were struck down. In their joint judgment Mason CJ, Deane andGaudron JJ (Wilson, Dawson and TooheyJJ agreeing) said (at 100):

77Brennan J in a separate judgment in the same case said (at 116):

78The present case is not about characterisation of a law for the purposeof assessing its validity under theConstitution of the Commonwealth. Thejudgments inDavis[1988] HCA 63;166 CLR 79 however support the general propositionthat freedom of expression in Australia is a powerful consideration favouringrestraint inthe construction of broad statutory power when the terms in whichthat power is conferred so allow.

79In the context of World Youth Day it is necessary to acknowledge thatanother important freedom generally accepted in Australiansociety is freedom ofreligious belief and expression.Section 116 of theConstitution bars theCommonwealth from making any law prohibiting the free exercise of any religion. This freedom is recognised in the UniversalDeclaration of Human Rights and inthe International Covenant on Civil and Political Rights which, in Art 18,provides:

1.Everyone shall have the right to freedom of thought, conscience and religion.This right shall include freedom to have or to adopta religion or belief of hischoice, and freedom, either individually or in community with others and inpublic or private, to manifesthis religion or belief in worship, observance,practice and teaching.

2.No one shall be subject to coercion which would impair his freedom to have orto adopt a religion or belief of his choice.

3.Freedom to manifest one’s religion or belief may be subject only tosuch limitations as are prescribed by law and are necessaryto protect publicsafety, order, health or morals or the fundamental rights and freedoms ofothers.

80It is not necessary for present purposes todefine comprehensively the limits of the classes of regulations that may or maynotbe made under the head of power ins 58(2)(b). No doubt conduct couldvalidly be regulated which involves disruption of, or interference with, thefree expression of religiousbeliefs by participants in WYD events. Clause7(1)(c) relating to obstruction of WYD events is properly directed to such ends.Norcould there be any complaint, in terms of its reach, against cl 7(1)(a)concerning conduct that is a risk to the safety of a personwithin a World YouthDay declared area or others.

81The principal issue in relation to cl 7(1) is its application under cl7(1)(b) to conduct that "causes annoyance ... to participantsin a World YouthDay event". The term "annoy" as defined in the Shorter Oxford EnglishDictionary relevantly means:

Annoyance has a corresponding meaning. The Macquarie Dictionary defines"annoy" as:

82Conduct which may attract a direction under cl 7(1)(b) is conduct which"causes annoyance ... to participants in a World YouthDay event". That is tosay it is conduct which actually results in its observers being ruffled,troubled, vexed, disturbed, displeasedor slightly irritated. These areresponses which depend very much on the individuals concerned. Some may findprotests of the kindwhich are proposed by the applicants mildly amusing. Others may be practising Catholics or Christians who agree with some of theprotestors’ points and are not troubled by them. There may be others whofind the protests irritating and who are, in therelevant sense, annoyed bythem. Annoyance to "participants" within the meaning of the Regulation may beannoyance to many or afew. There is no objective criterionto assistthe judgment of "an authorised person" in deciding whether to issue a directionunder cl 7. There may be circumstancesin which it would be difficult if notimpossible for a person to whom a direction is given to know whether his or herconduct wassuch as to authorise the giving of the direction. It is littleconsolation to the person affected by a direction that he or shecould argue thepoint later in a prosecution in a court of law as the State suggested.

83In our opinion the conduct regulated by cl 7(1)(b) so far as it relatesto "annoyance" may extend to expressions of opinion whichneither disrupt norinterfere with the freedoms of others, nor are objectively offensive in thesense traditionally used in Statecriminal statutes. Breach of this provisionas drafted affects freedom of speech in a way that, in our opinion, is notsupportedby the statutory power conferred bys 58 properly construed. Moreoverthere is no intelligible boundary within which the "causes annoyance" limb ofs7 can be read down to save it as a valid expression of the regulating power.

84The term "inconvenience" has a more objective content. The relevantdefinition in the Shorter Oxford English Dictionary is:

It is used in a transitive sense by reference to the effect of the relevantconduct on participants. The Macquarie Dictionary definesit as:

While the term is broad it does not depend upon the subjective reactions ofparticipants in World Youth Day events to the conductin question. It requiresa judgment by the authorised person of objective inconvenience. Suchinconvenience may arise, for example,where protestors by their locations oractions hinder or obstruct the movement of participants or are so loud in theirprotest asto impair communications between groups of participants andofficials. The term "inconvenience" may be criticised as conferringwide powersof uncertain ambit upon authorised persons but it is, in our opinion, a termwhich can reasonably be construed as limitedto matters susceptible of objectivejudgment. The term does not reach so far as to impair expression of opinionswith which peoplemight disagree or which they might find troubling. In ouropinion that aspect of cl 7(1)(b) does not spell invalidity.

DISCRETION TO WITHHOLD DECLARATORY RELIEF

85The applicants seek declaratory relief. The State submitted that, in theexercise of its discretion, the Court should declinethat relief. It did so onthe basis, inter alia, that the precise nature of the conduct in which theapplicants intend to engageis not clear. The Court, it was said, is beingasked to consider the issue raised by the applicants without full or clearfacts. The State formally denied the standing of the applicants to claimdeclaratory relief but subsumed its argument on that questionin its submissionthat the Court should exercise its discretion to withhold the relief sought. Weobserve that as was pointed outinBatemans Bay Local Aboriginal Land Councilv Aboriginal Community Benefit Fund Pty Ltd[1998] HCA 49;(1998) 194 CLR 247 at 262:

We are satisfied that there is a controversy sufficient to constitute amatter for the purposes of Chapter III of theConstitution and the properinvocation of this Court’s jurisdiction.

86The circumstances in which the Court will grant declaratory relief wereenunciated by Lockhart J on behalf of the Full Court,inAussie Airlines PtyLtd v Australian Airlines Ltd(1996) 68 FCR 406:

1.The proceeding must involve the determination of a question that is notabstract or hypothetical. There must be a real questioninvolved, and thedeclaratory relief must be directed to the determination of a legalcontroversies. The answer to the questionmust produce some real consequencesfor the parties.

2.The applicant for declaratory relief will not have sufficient standing ifrelief is claimed in relation to circumstances thathave not occurred and mightnever happen; or if the Court’s declaration will produce no foreseeableconsequence for the parties.

See also:JN Taylor Holdings Ltd (in liq) v Alan Bond(1993) 59 SASR432.

87The question of the discretion to withhold declaratory relief in theseproceedings now only arises in relation to cl 7(b) andthen only in so far asthat clause relates to conduct which causes annoyance to participants in WorldYouth Day events. It is notnecessary for the purpose of exercising thatdiscretion to grant or withhold relief, in this case, to have a precisecatalogue ofthe conduct in which the applicants intend to engage. It is clearthat in various ways they intend to express views likely to beat odds withthose of many of the participants. They may do so in a way, or using means,which some participants are likely to findannoying. The wide scope of theRegulation in relation to conduct which causes annoyance is likely to catch atleast some of theintended conduct. Moreover, it can be expected to have achilling effect upon the exercise of their freedom of speech because ofthe veryuncertainty about the degree of its infringement upon that freedom. Importantly, the declaration sought is not about thelawfulness of the futureconduct of the applicants in which event a degree of precision in the definitionof that conduct would benecessary before such relief could be contemplated. What is sought is a declaration of the invalidity of an aspect of a law ofgeneralapplication. On the principles enunciated by Lockhart J the applicantshave established that the discretion to grant the relief shouldbe exercised intheir favour.

CONCLUSION

88For the preceding reasons, the Court will make a declaration that cl7(1)(b) is invalid to the extent to which it is applied toconduct which causesannoyance to participants in World Youth Day events. There is otherwise in cl 7a substantial measure of protectionagainst disruptive behaviour, behaviourwhich causes inconvenience to participants and behaviour which may give rise toa risk topublic safety. Over and above these provisions the general criminallaws of the State relating to disorderly and offensive conductand the like areable to be invoked should that be necessary.

89On the matter of costs the applicants have had mixed fortunes in theresult. They have made out their challenge in an area ofsignificance to theirintended activities but have failed to make it out in other areas. In ouropinion, having regard to the divisionof issues it is appropriate that we orderthe State to pay one third of the applicants’ costs of the proceedings. We willhowever allow both parties liberty to file written submissions within 14days if either of them should seek a different order asto the costs of theapplication.

Associate:

Dated:15July 2008