Tuesday, 15 July 2008
From a contributor:
So I was walking down Martin Place at 5pm on Monday night. A group of about 10-15 pilgrims were having their photos taken. Most were standing or sitting on top of the military memorial, happily shouting out and whooping it up. Normally I would politely ask people doing this to step off the memorial out of respect for the people it commemorates (soldiers who died in their service to the country).
But I didn’t, because I was worried I might be accused of “annoying” them and getting arrested.
Is this a chilling effect or what?
The relevant rule is in the World Youth Day Regulation 2008, specifically reg 7(1)(b):
7 Control of conduct within World Youth Day declared areas
(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.
(3) A person is not guilty of an offence under this clause unless it is established that the authorised person warned the person that a failure to comply with the direction is an offence.
(4) In this clause, authorised person means:
- (a) a police officer, or
- (b) a member of an SES unit (within the meaning of the State Emergency Service Act 1989) or a member of the NSW Rural Fire Service, but only if the member is authorised by the Authority in writing for the purposes of this clause.
So even assuming that the conduct can be classed as “annoying”, it first looks like they need to be “participants in a World Youth Day event”. This is defined in the principal act (World Youth Day Act 2006) as follows: “World Youth Day event means any event determined by the Authority to be an event associated with World Youth Day 2008.” A private lark looks like it might not qualify.
Next, you need to be directed to “cease” engaging in the conduct, by a police officer or authorised member, and they must “warn[ ]” you “that a failure to comply with the direction is an offence”.
Finally, you have to “fail to comply with” that direction “without reasonable excuse”. If you’ve already said your piece and moved on, then this might not apply.
But, once the section bites, it can bite hard: the maximum penalty is 50 penalty units, which is $5,500. (Note that a lower penalty may be awarded.)
To give some context, this is the same maximum penalty as:
- * impersonating, or falsely representing to be an authorised building inspector: sec 86 of the Building Professionals Act 2005
- * a casino operating free liquor as an inducement to gamble in the casino: reg 23, Casino Control Regulation 2001
- * advertising that you are a chiropractor when you are not registered: sec 7, Chiropractors Act 2001
- * failing to notify the Commissioner of Police in writing within 14 days if your genuine or legitimate reason for owning a firearm is no longer valid: reg 14, Firearms Regulation 2006
The Full Federal Court has just declared reg 7(1)(b) “invalid to the extent that it seeks to prevent merely annoying conduct”: see Evans v State of New South Wales.
The key passages are:
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.
88 For the preceding reasons, the Court will make a declaration that cl 7(1)(b) is invalid to the extent to which it is applied to conduct which causes annoyance to participants in World Youth Day events. There is otherwise in cl 7 a substantial measure of protection against disruptive behaviour, behaviour which causes inconvenience to participants and behaviour which may give rise to a risk to public safety. 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.
Note that, to the extent the regulation prohibits causing “inconvenience”, it remains valid:
84 … While the term is broad it does not depend upon the subjective reactions of participants in World Youth Day events to the conduct in question. It requires a judgment by the authorised person of objective inconvenience. Such inconvenience may arise, for example, where protestors by their locations or actions hinder or obstruct the movement of participants or are so loud in their protest as to impair communications between groups of participants and officials. The term “inconvenience” may be criticised as conferring wide powers of uncertain ambit upon authorised persons but it is, in our opinion, a term which can reasonably be construed as limited to matters susceptible of objective judgment. The term does not reach so far as to impair expression of opinions with which people might disagree or which they might find troubling. In our opinion that aspect of cl 7(1)(b) does not spell invalidity.
3 Responses to “Chilling effects and World Youth Day Laws”
Leave a Reply
Do not post material that is defamatory or obscene, that infringes any third party's copyrights, trademarks or other proprietary rights, or that violates any other right of any other person.
We reserve the right to remove or edit any comment for any reason.
Note: Posting more than two links in a comment may cause it not to appear because it will be submitted for moderation. Also, links in comments will not be counted by Google, so spamming is pointless.