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Published online by Cambridge University Press: 24 January 2025
This note will look at the litigation that arose in the lead-up to World Youth Day held in Sydney in July 2008. In Part II, the events that gave rise to Evans v New South Wales will be outlined and the reasons of the Full Court of the Federal Court for its decision briefly explained. The consequences of the Court applying the principle of legality in Evans — which lay at the heart of its reasoning and decision — will be explored in Part III. First, I will consider how it impacted upon the argument made by the applicants that the relevant legislation was invalid for infringing the implied freedom of political communication guaranteed by the Australian Constitution. And second, I will discuss whether the decision in Evans highlights a lacuna in the legal protection of freedom of expression in Australia — as some commentators have suggested — and whether a statutory charter of rights would remedy this. And finally, in Part IV, I will make some observations about the principle of legality and the judicial protection of rights more generally. Taken together, these observations lead me to conclude that the judicial role in the protection of rights in Australia may be best served through the application of the principle of legality rather than an interpretive obligation under a statutory charter of rights.
My thanks are due to Claudia Geiringer and the anonymous referee for providing valuable comments and suggestions on an earlier draft of this note.
1 (2008) 168 FCR 576 ('Evans’).
2 Ibid 578.
3 Ibid 579.
4 Section 46(1) defined an Authority controlled area as any of the following areas: (a) the area comprising, or comprising and adjacent to, a transport facility or interchange or a World Youth Day venue or facility, being an area that is specified 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 of a transport facility or interchange or a World Youth Day venue or facility, being a public place, or part of a public place, that is shown on a map referred to in an order of the Minister published in the Gazette.
5 I will refer to it as the ‘implied freedom’ for the remainder of the note.
6 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
7 Evans (2008) 168 FCR 576, 581.
8 Ibid citing with approval this passage from Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564, 597 (French J with whom Beaumont and Finkelstein JJ agreed).
9 See Evans (2008) 250 ALR 33, 55–6.
10 Evans (2008) 168 FCR 576, 580.
11 See above n 4.
12 Section 46(10) ‘In this section: “authorised officer” means a person authorised in writing by the Authority for the purposes of this section.'
13 Evans (2008) 168 FCR 576, 588.
14 Ibid.
15 Ibid 589.
16 Ibid.
17 Ibid 589–90.
18 Ibid 590.
19 Ibid.
20 Ibid.
21 Ibid 589.
22 Ibid 590.
23 (1997) 189 CLR 520, 560.
24 Evans (2008) 168 FCR 576, 585.
25 Ibid 593 citing Coco v The Queen (1994) 179 CLR 427, 437
26 Ibid 592–3.
27 Ibid 594.
28 Ibid 596. On the basis of this discussion in the Evans decision, Kevin Boreham has suggested that freedom of religious belief and expression is now a fundamental right recognised by the common law — see ‘International Law as an Influence on the Development of the Common Law: Evans v New South Wales’ (2008) 19 Public Law Review 271.
29 Evans (2008) 168 FCR 576, 597.
30 Ibid.
31 Ibid.
32 Ibid.
33 Ibid 598.
34 Ibid. In this regard the Court noted at 598 that ‘[t]he wide scope of the Regulation in relation to conduct which causes annoyance is likely to catch at least some of the intended conduct. Moreover, it can 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.'
35 Ibid 587.
36 Ibid.
37 See Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 186 (Latham CJ).
38 Evans (2008) 168 FCR 576, 587.
39 Ibid 591.
40 Ibid 590.
41 Ibid 590–1.
42 Ibid 591 (emphasis added).
43 (1996) 68 FCR 406, 414 cited in Evans (2008) 168 FCR 576, 598.
44 Evans (2008) 168 FCR 576, 598 (emphasis added).
45 I acknowledge that I have taken this terminology — ‘the Ashwander principle’ — from Frederick, Schauer, ‘Ashwander Revisited’ (1995) Supreme Court Review 71, 74Google Scholar.
46 This is also the orthodox interpretive approach in American law — see Ashwander v Tennessee Valley Authority 297 US 288, 347–8 (1936) (Brandeis J); Edward J DeBartolo Corp v Florida Gulf Coast Building and Construction Trades Council 485 US 568 (1988). In some respects this makes good practical sense as the frequency of the United States Constitution (particularly its Bill of Rights) potentially intersecting with State and federal statutes is likely to be far greater than in the Australian constitutional context. It may also be politically and institutionally prudent for American courts to employ this interpretive approach wherever possible considering the robust and ongoing debate about the democratic legitimacy of judicial review.
47 Schauer, above n 45, 87–8 (footnote omitted).
48 Ibid 74 (footnote omitted). Schauer also notes at 89 that the upshot of applying the Ashwander principle is that constitutional adjudication is in fact undertaken ‘without the necessity of the full statement of reasons supporting the constitutional decision.'
49 (2004) 220 CLR 1, 75–7 (Gummow and Hayne JJ), 96–9 (Kirby J).
50 Ibid 74–9 (Gummow and Hayne JJ), 98–9 (Kirby J).
51 Ibid 77–9 (Gummow and Hayne JJ), 99 (Kirby J). In this regard their interpretive approach was ‘reinforced’ by principles of the implied freedom.
52 However, it must be noted that, notwithstanding the problematic nature and scope of the World Youth Day legislative regime that remained on the statute book after Evans, it became a dead issue when the Act (and its accompanying regulations) were automatically repealed on January 1, 2009: World Youth Day Act 2006 (NSW) s 62.
53 See Evans (2008) 168 FCR 576, 590–1.
54 Schauer, above n 45, 87.
55 See for example Street v Queensland Bar Association (1989) 168 CLR 461; Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480, 509 (Mason CJ, Brennan, Deane and Gaudron JJ); Cheng v The Queen (2000) 203 CLR 248, 277–8 (Gaudron J). But see Sweedman v Transport Accident Commission (2006) 226 CLR 362 where the High Court appears to have retreated to the more formal and narrow construction of s 117 of the Constitution that was categorically rejected in Street.
56 George Williams and Nicola McGarrity, ‘A Victory Only Until the Next Time', The Sydney Morning Herald (Sydney), 16 July 2008 <http://www.smh.com.au/articles/2008/07/15/1215887626477.html> at 2 August 2009.
57 Ibid.
58 Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).
59 Williams and McGarrity, above n 56.
60 This assumption can reasonably be made considering the strong and consistent case that George Williams has made for the adoption of statutory bills of rights at both the State and federal level — see for example George, Williams, A Charter of Rights for Australia (3rd ed, 2007)Google Scholar; George, Williams, ‘The Victorian Charter of Human Rights and Responsibilities: Origins and Scope’ (2006) 30 Melbourne University Law Review 880Google Scholar.
61 See for example the freedom of expression right in s 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic): (1) Every person has the right to hold an opinion without interference. (2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether — (a) orally; or (b) in writing; or (c) in print; or (d) by way of art; or (e) in another medium chosen by him or her. (3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary — (a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality.
62 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32; see also Human Rights Act 2004 (ACT) ss 30 and 31.
63 See Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36; see also Human Rights Act 2004 (ACT) s 32.
64 See generally Carolyn, Evans and Simon, Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (2008) 135–6Google Scholar.
65 Chief JusticeJames, Spigelman, ‘The Application of Quasi-Constitutional Laws’ in Statutory Interpretation and Human Rights (2008) 51, 65Google Scholar.
66 Chief JusticeMurray, Gleeson, ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’ (2009) 20 Public Law Review 26, 33Google Scholar.
67 In doing so, the core interpretive obligation in s 32 of the Victorian Charter would be discharged.
68 Evans (2008) 168 FCR 576, 579.
69 Ibid 597.
70 Whilst it is true that in cases like Evans a statutory bill of rights or the application of the principle of legality would produce the same judicial outcome, under the former there are mechanisms that provide for pre-legislative rights scrutiny as well; for example, a rights compatibility statement must be prepared by the relevant member who proposes to introduce a Bill into the Parliament: Charter of Human Rights and Responsibilities Act 2006 (Vic) s 28; see also Human Rights Act 2004 (ACT) s 37. This form of additional parliamentary rights scrutiny may well provide for more meaningful protection of charter rights (including freedom of expression) than would otherwise occur under the common law.
71 See Evans (2008) 168 FCR 576, 593–5.
72 For example, it is not a fundamental right at common law to be free from discrimination on the grounds of gender, race or religion. However, the right to legal equality is enshrined in the statutory bills of rights operating in the ACT and Victoria: see generally Chief JusticeJames, Spigelman, ‘The Common Law Bill of Rights’ in Statutory Interpretation and Human Rights (2008) 1Google Scholar.
73 Ibid 65.
74 Williams and McGarrity, above n 56.
75 Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309, 329.
76 Williams and McGarrity, above n 56.
77 Ibid (emphasis added).
78 Evans (2008) 168 FCR 576, 594 quoting Lord Hoffman in R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131 (emphasis added).
79 This has for example always been the course of action in response to a judicial declaration of rights incompatibility in the United Kingdom — see Francesca, Klug and Keir, Starmer, ‘Standing Back From the Human Rights Act: How Effective is it Five Years On?’ (2005) Public Law 716, 721Google Scholar.
80 Though Parliament cannot be legally forced to amend their legislation under a statutory bill of rights, it has been argued that as a political matter, Parliament has little choice but to amend its legislation to comply with a judicial rights assessment rather than engage in the ‘institutional dialogue’ said to be a hallmark and strength of statutory bills of rights: see James, Allan, ‘The Victorian Charter of Human Rights and Responsibilities: Exegesis and Criticism’ (2006) 30 Melbourne University Law Review 906, 912–16Google Scholar.
81 I use here the language of bills of rights critics: see for example Jeremy, Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346, 1353Google Scholar; James, Allan, ‘Portia, Bassanio or Dick the Butcher? Constraining Judges in the Twenty-First Century’ (2006) 17 King's College Law Journal 1Google Scholar.
82 On the rich common law heritage of the principle of legality see Chief JusticeJames, Spigelman, ‘Principle of Legality and the Clear Statement Principle’ (2005) 79 Australian Law Journal 769Google Scholar.
83 See generally Spigelman, above n 65.
84 Ibid 56.
85 See Tom, Campbell, ‘Human Rights Strategies: An Australian Alternative’ in Tom, Campbell, Jeffrey, Goldsworthy and Adrienne, Stone (eds), Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (2006) 319Google Scholar; Janet, Hiebert, ‘Parliament and Rights’ in Tom, Campbell, Jeffrey, Goldsworthy and Adrienne, Stone (eds), Protecting Human Rights: Instruments and Institutions (2003) 231Google Scholar; Jeremy, Waldron, ‘Legislating with Integrity’ (2003) 72 Fordham Law Review 373Google Scholar.
86 See generally Dan, Meagher, ‘The Democratic Credentials of Statutory Bills of Rights (and Those of a Self-Styled Majoritarian Democrat)’ (2008) 19 King's Law Journal 27Google Scholar; contra James, Allan, ‘Meagher's Mischaracterisations of Majoritarianism: A Reply’ (2009) 20 King's Law Journal 115Google Scholar.
87 I acknowledge here that the phrase ‘institutional interaction’ is taken from Leighton, McDonald, ‘Rights, ‘Dialogue’ and Democratic Objections to Judicial Review’ (2004) 32 Federal Law Review 1, 26Google Scholar.
88 See Chief JusticeMarilyn, Warren, ‘Unelected Does Not Equate with Undemocratic: Parliamentary Sovereignty and the Role of the Judiciary’ (2008) 13(2) Deakin Law Review 1Google Scholar; M J C Vile, Constitutionalism and the Separation of Powers (1967) ch 1.
89 For example, the jurisdiction of the High Court and all other federal courts established under Chapter III of the Australian Constitution extends only to the hearing and determination of ‘matters'. The High Court has said that ‘there can be no matter …unless there is some immediate right, duty or liability to be established by the determination of the Court': Re Judiciary and Navigation Acts (1921) 29 CLR 257, 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). On the other hand, State courts can be vested with and exercise both judicial and non-judicial powers so long as the latter do not compromise their independence and institutional integrity as a court: Fardon v A-G (Qld) (2004) 223 CLR 575. However, the following passage makes clear the essence of the judicial function in Australia: ‘Judges do not set their own agenda. They deal with issues that litigants bring to them for decision. They cannot avoid questions that have to be answered to decide the cases that come to them; and they cannot answer questions that are not brought to them for decision. Australian courts do not give advisory opinions. They resolve concrete issues raised by disputing litigants': Chief JusticeMurray, Gleeson, The Rule of Law and the Constitution (2000) 99Google Scholar.
90 Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 36(5), 39. It is interesting to note that Justice Mark Weinberg of the Victorian Supreme Court has recently suggested that ‘[t]here is little point in having statutory protection for human rights unless there are consequences for a breach of its provisions': ‘The Australian Justice System — What is Right and What is Wrong With it?’ (Speech delivered at the National Judicial College of Australia Conference on the Australian Justice System in 2020, Sydney, 25 October 2008) 20 [87] <http://www.supremecourt.vic.gov.au/wps/wcm/connect/Supreme+Court/Find/Publications/SUPREME+-+Speeches+-+Justice+Weinberg> at 2 August 2009.
91 See for example the Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008 (Cth) which will allow the Federal Court to refer complex technical questions that arise in a case to an expert referee who will undertake an inquiry and then provide a report to the Court. This mechanism is designed to facilitate quicker and less costly trials, especially of large commercial matters; see generally Chief Justice Murray Gleeson, ‘The State of the Judicature’ (Speech delivered at the 35th Australian Legal Convention, Sydney, 25 March 2007) <http://www.hcourt.gov.au/publications_05_2.html#MurrayGleeson> at 2 August 2009.
92 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ).
93 This has for example been the experience so far in the UK — see Klug and Starmer, above n 79.
94 Peter, Russell, ‘Political Purposes of the Canadian Charter of Rights and Freedoms’ (1983) 61 Canadian Bar Review 30, 52Google Scholar quoted in McDonald, above n 87, 24; see generally Robert, Nagel, ‘American Judicial Review in Perspective’ in Tom, Campbell, Jeffrey, Goldsworthy and Adrienne, Stone (eds), Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (2006) 225Google Scholar.