Evans v State of New South Wales

Application to the Court 10 By an application dated 7 July 2008 the applicants claimed the following relief: 1. A declaration that subsection 46(3) of the World Youth Day Act 2006 (NSW) ("the Act") is invalid and of no effect as it impermissibly burdens the implied freedom of communication on matters of government or politics arising under the Commonwealth Constitution. 2. A declaration that clause 4 of the World 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 of government or politics arising under the Commonwealth Constitution; and/or (b) is ultra vires the Act. 3. A declaration that clause 7 of the Regulation is invalid and of no effect as it: (a) impermissibly burdens the implied freedom of communication on matters of government or politics arising under the Commonwealth Constitution; and/or (b) is ultra vires the Act. 4. The Respondent pay the Applicants' costs. 5. Such further or other order as the Court sees fit.

Jurisdiction 11 The jurisdiction of the Federal Court to hear and determine the application derives principally from s 39B(1A) of the Judiciary Act 1903 (Cth). Section 39B(1A) relevantly places within the original jurisdiction of the Federal Court "any matter … arising under the Constitution, or involving its interpretation" (s 39B(1A)(b)). In this provision the term "matter" takes its constitutional meaning which involves the existence of a controversy as to some immediate right, duty or liability to be established by the determination of the Court: Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 per Gaudron J at [43]. 12 The applicants also placed reliance on s 32 of the Federal Court of Australia Act 1976 (Cth) and the Court's "accrued" jurisdiction. Section 32(1) of the Federal Court of Australia Act 1976 (Cth) provides: To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. 13 It is not necessary in this case to give consideration to the extent, if any, to which s 32(1) expands the jurisdiction of the Court, or to the nature and extent of the Court's "accrued" jurisdiction. As French J, with whom Beaumont and Finkelstein JJ agreed, observed in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [85]: Jurisdiction conferred on a Federal Court in respect of a matter authorises the Court to determine all the claims, federal and non-federal, which are involved in the controversy. That the federal claim is determined adversely to the applicant does not thereby deprive the Court of jurisdiction to deal with the non-federal claims. They are all part of the federal jurisdiction conferred upon the Court. Nor does it matter to the scope of that jurisdiction whether the federal claim is defeated on a question of law or fact. That proposition is supported by a long line of authority.

Urgency and Importance 14 This matter was prepared for hearing, and heard and determined, as a matter of urgency. As mentioned above, the application was filed and served on 7 July 2008. Notices as required by s 78B of the Judiciary Act were also served on the Attorneys General of the Commonwealth and the States on that day. The main World Youth Day events are scheduled to commence during the afternoon of 15 July 2008. The parties cooperated with the Court in adhering to a tight timetable for the preparation of the matter for final hearing on 11 July 2008. 15 The Acting Chief Justice considered that the matter was of sufficient importance to justify a direction that the original jurisdiction of the Court in the matter be exercised by a Full Court (see s 20(1A) of the Federal Court Act). In exercising the discretion to so direct his Honour additionally took into account that appellate review of the first instance judgment of the Court might not be a practical possibility because of the short period of time between 11 July 2008 and the commencement of the main World Youth Day events.

Statutory Provisions 16 The long title of the WYD Act is: An Act to constitute a World Youth Day Co-ordination Authority, to confer certain functions on the Authority and to provide for the co-operation of other government agencies in the planning, co-ordination and delivery of government services in relation to World Youth Day 2008 and related events; and for other purposes. 17 The Authority is constituted as a corporation by s 5 of the WYD Act. Section 12(1) of the WYD Act provides that the principal function of the Authority is: to develop policies, strategies and plans for the delivery of, and to co-ordinate and manage the delivery of, integrated government services for World Youth Day Events. 18 Section 12(2) identifies additional functions of the Authority but none of 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 by or under this or any other Act". 19 Section 3 of the WYD Act is a definition section. It provides that World Youth Day event means any event determined by the Authority to be an event associated with World Youth Day 2008. It appears that, as at the date of the institution of this proceeding, the Authority may not have determined any event to be a World Youth Day event. During the course of the hearing senior counsel for the State of New South Wales (the State), Mr Sexton SC SG, handed to the Court a document dated 10 July 2008 by which the Chief Executive Officer of the Authority, acting in the name of and on behalf of the Authority (see s 8(2) of the WYD Act), purported to determine a significant number of "events" specified in a schedule. To illustrate the way in which the Authority has purported to determine certain events to be World Youth Day events, we note that the first three "events" specified in the schedule are identified in the following way: Date Time Event Location

1 July 2007 to 30 June 2008 All Day Journey of the WYD Cross and Icon of Mary across Australia Various Catholic Dioceses

1 July 2008 - 15 July 2008 15 days (each day's route approx 11 kms) Journey of the WYD Cross through suburban areas of Sydney finishing 15 July 2008 at Barangaroo (Opening Welcome Mass) Dioceses in the Greater Sydney area including Broken Bay, Wollongong and Parramatta

10 July 2008 to 14 July 2008 All Day Days in the Dioceses Various Catholic Dioceses

20 There appears to be no requirement to publish a list of the events determined to be World Youth Day events. There is also no explicit power given to the Authority to make such a determination although, presumably, such a power may be implied from the definition and the scheme of the Act. In any case, the Court did not hear submissions as to the validity of the purported determination of World Youth Day events. Nothing in these reasons for judgment should be understood as implying that the Court holds a view, one way or the other, as to the validity of the purported determination. 21 Section 3A gives meaning to the statutory expression World Youth Day declared area. It relevantly provides: (1) For the purposes of this Act, a World Youth Day declared area is any area that is designated to be a World Youth Day declared area by an order under this section. (2) The Minister may, by order published in the Gazette, designate any area that the Minister determines is required for hosting a World Youth Day event, or for the provision of services in relation to a World Youth Day event, to be a declared area for the period (if any) specified in the order. Note: The Minister may amend or repeal an order made under this section. See section 43 of the Interpretation Act 1987. (3) An area is a declared area for the purposes of this Act 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 the World Youth Day period has already commenced, the remainder of that period. (4) An order under this section may be made before or during the World Youth Day period. 22 Three categories of areas have been designated to be World Youth Day declared areas. The first category is event sites. There are many designated sites including Darling Harbour, the Domain, Centennial Park, Royal Botanic Gardens, the University of Sydney, Art Gallery of New South Wales, Sydney Harbour Bridge and the Sydney Opera House. The second category of areas is described as "Accommodation and Catechesis sites". There are approximately 600 designated sites in this category, nearly all being either schools or churches. The third category of areas are described as "Transport sites". The designated transport sites are mainly railway stations. They include stations in the Sydney central business district such as Central Railway Station, Town Hall Railway Station and Wynyard Railway Station and also outer suburban railway stations including Campbelltown Railway Station, Cabramatta Railway Station and Blacktown Railway Station. 23 Section 3B of the WYD Act gives meaning to the statutory expression World Youth Day period. For the purpose of the WYD Act that expression means the period commencing on 1 July 2008 and ending on 31 July 2008 or such later date as may be prescribed by regulations. The Court's attention was not drawn to any regulation extending the World Youth Day period. 24 Section 46 of the WYD Act is concerned with the sale and distribution of articles in certain public places. It relevantly provides: (1) For the purposes of this section, an Authority controlled area is 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. … (3) A person must not sell or distribute a prescribed article during the sales control period in an Authority controlled area without the approval of the Authority. Maximum penalty: $5,000. (4) An authorised officer may give a direction to a person who sells or distributes any prescribed article during the sales control period in an Authority controlled area without the approval of the Authority to remove the article, and any other prescribed articles within the person's possession or under the person's control, from the area immediately or by such other time as may be directed. (5) A person must not fail or refuse to comply with a direction given to the person by an authorised officer under subsection (4). Maximum penalty: $5,000. … (9) The regulations may make provision for or with respect to: (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). (10) In this section: "authorised officer" means a person authorised in writing by the Authority for the purposes of this section. "prescribed article" means an article of a class prescribed by the regulations as being a prescribed article for the purposes of this section. "sales control period" means the period from 1 July 2008 to 31 July 2008, inclusive, or such other period as may be prescribed by the regulations for the purposes of this section (being a period that does not begin before 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 for sale 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. … 25 Section 58(1) of the WYD Act gives the Governor the conventional power to make regulations, not inconsistent with the Act, for or with respect to any matter that by the Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the Act. Section 58(2) specifically authorises the making of regulations for or with respect to "regulating the use by the public of, and the conduct of the public on, World Youth Day venues and facilities". The expression World Youth Day venue or facility includes a World Youth Day declared area (s 3 of the WYD Act). 26 Clause 4 of the Regulation prescribes the following classes of articles for the purpose of s 46(10) of the WYD Act: (a) items of food and drink, (b) religious items (for example, rosary beads, candles, candle holders, prayer tokens 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 and thongs), (e) jewellery, (f) giftware (for example, key rings, lapel pins, zipper pulls, magnets, removable tattoos, button badges, wristbands, mobile phone accessories, computer accessories, sunglasses, stickers and photo frames), (g) hardgoods (for example, bottles, mugs, plates, spoons, ceramics and umbrellas), (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). 27 Clause 7 of the Regulation is concerned with the conduct of members of the public on World Youth Day declared areas. It provides: (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.

The Applicants' Proposed Conduct 28 The evidence of the applicants about their respective plans to communicate with participants in World Youth Day events and with the public generally during the World Youth Day period was not challenged. It was relevantly to the effect set out below. 29 Ms Evans is a spokesperson for the Coalition. She is also Secretary of Community Action Against Homophobia, an incorporated community group that campaigns on issues such as the Federal same-sex marriage ban and civil unions. 30 Ms Pike is part of the Coalition and a member of Resistance, a socialist youth organisation which seeks to raise public awareness of issues such as sexism, racism, and homophobia. One of the objectives of Resistance is to persuade political parties at both Federal and State level to adopt policy positions that reflect the organisation's views and, where appropriate, to legislate to implement those policy positions. 31 Each of the applicants proposes to take part in rallies and protests organised by the Coalition during July 2008. 32 In particular Ms Evans proposes on 19 July 2008, while in Moore Park on the Pilgrim Walking Route, to: (a) wear a t-shirt bearing the slogan "The Pope was Wrong - Put a Condom On!"; (b) hand out condoms and stickers bearing slogans; (c) hand out flyers and leaflets urging public support for same-sex marriage rights and same-sex couples in Australia and dealing with the matters identified in (d) below; (d) speak to, and engage in discussion with, participants in the Pilgrimage Walk to Randwick about matters including the following: i. the teaching of the Pope and the Catholic Church on homosexuality, same-sex marriages, contraception, abortion and use of condoms to prevent HIV; ii. legal discrimination against same-sex couples in Australia in respect of marriage and superannuation entitlements; iii. the role of developed countries such as Australia and the United States in preventing foreign aid from being used to provide access to abortion in developing countries; iv. the criminalisation of abortion in Australian States and Territories; v. the fact that the Federal and State governments are hosting and funding the Pope's visit and World Youth Day 2008; and vi. the importance of ensuring that education curricula do not discriminate on grounds of homosexuality. 33 Ms Pike proposes on 19 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 the area; (b) speak through a mega-phone and hand out leaflets to communicate her views on sexual health, contraception, abortion, homophobia, same-sex marriage, the funding of World Youth Day events and attacks on civil liberties; (c) hand out candles to raise public awareness of the fact that same-sex marriage, abortion, birth control and homosexuality are not obstacles to world peace; (d) hand out stickers bearing slogans. 34 Ms Pike also proposes to engage in the conduct outlined above (except, it seems, the wearing of the giant condom costume) later on 19 July 2008 at Moore Park. 35 The above statements of intended conduct on the part of the applicants are confined to conduct pleaded in their amended statement of claim which defines their case in that respect. The Court directed that the case proceed on the pleadings and the applicants' case will be confined to their pleadings. We accept the pleaded intention as far as it is consistent with the affidavit evidence. To the extent that any affidavit material goes further, we disregard it as outside the pleaded case. THE ISSUES FOR DETERMINATION 36 The issues for determination in these proceedings are: 1. Whether s 46(3) of the WYD Act, read with cl 4 of the Regulation, impermissibly burdens the implied freedom of political communication under the Constitution of the Commonwealth. 2. Whether cl 4 of the Regulation is within the scope of the power conferred by the WYD Act to prescribe items for the purposes of s 46(3). 3. Whether items of a kind that the applicants propose to distribute are within a valid prohibition effected by cl 4 of the Regulation. 4. Whether cl 7 of the Regulation impermissibly burdens the implied freedom of political communication. 5. Whether cl 7 of the Regulation is within the regulation making power conferred by s 58 of the WYD Act. THE APPROACH TO RESOLVING CONSTITUTIONAL VALIDITY 37 The applicants seek declarations of the invalidity of s 46(3) and cll 4 and 7 of the Regulation as infringing the implied freedom of political communication. In the alternative, they seek declarations that cll 4 and 7 of the Regulation are outside statutory power. 38 The first basis upon which the declarations are sought invokes the jurisdiction of the Court in matters arising under the Constitution and involving its interpretation. There is no contention that the jurisdiction of the Court is not properly invoked. The alternative challenge to the validity of cll 4 and 7 relies upon the contention that they fall outside the regulation making power conferred by the WYD Act. That challenge arises entirely under the law of New South Wales and ordinarily would not be within the jurisdiction of this Court. It is, however, clearly a part of the matter in which the constitutional challenge is brought and so falls within the "accrued jurisdiction" of the Court. 39 Although the constitutional challenge underpinned the primary relief sought in the application, the question whether s 46(3) or cll 4 and 7 in any respect infringe the implied freedom of political communication depends upon their proper construction and, in the case of the Regulation, whether they are valid under the WYD Act. If either of the clauses of the Regulation is not valid because it is not authorised by the WYD Act, then the question of constitutional validity falls away. 40 If on its proper construction a statute does not offend against any constitutional limitation or prohibition it is not ordinarily appropriate for the Court to hypothesise a different construction and then test its constitutionality. If a regulation is found to be invalid as not authorised by the statute under which it is said to be made, then it is not for the Court to hypothesise validity under the statute so that it may test for validity under the Constitution. This approach is consistent with, although not a corollary of, the well-established presumption in favour of the constitutionality of statutes: Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 180 (Isaacs J); Attorney-General (Victoria) v Commonwealth (1945) 71 CLR 237 at 267 (Dixon J); Chung Kim Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 at 14 (Mason CJ).

THE VALIDITY OF SECTION 46(3) OF THE WYD ACT AND CLAUSE 4 OF the REGULATION 41 As mentioned above the WYD Act has as its stated purpose "to constitute a World Youth Day Co-ordination Authority, to confer certain functions on the Authority and to provide for the co-operation of other government agencies in the planning, co-ordination and delivery of government services in relation to World Youth Day 2008 and related events; and for other purposes". The functions of the Authority are set out in s 12 of the Act and are in accord with the functions described in the long title. 42 Section 58(1) provides, among other things, for the making of regulations "not inconsistent with this Act" for or with respect to any matter that is required or permitted to be prescribed. Section 46(3) of the Act provides: A person must not sell or distribute a prescribed article during the sales control period in an Authority controlled area without the approval of the Authority. Maximum penalty: $5,000 43 A "prescribed article" is defined in s 46(10) as "an article of a class prescribed by the regulations as being a prescribed article for the purposes of this section". The articles that have been prescribed by the Authority are listed in the impugned cl 4 of the Regulation, which is set out above. The "sales control period" is the period from 1 July 2008 to 31 July 2008, as well as any other period between 1 June 2008 and 31 December 2008 that is prescribed by regulations. A person who fails to comply with an authorised officer's direction to remove a prescribed article from the Authority controlled area, is liable to have the article seized by the officer and forfeited to the Crown. The definition of Authority controlled area is found in s 46(1). 44 In its written submissions the State of New South Wales (the State) argued that "distribute" in s 46 should be read in the context of the object of the section, which is to regulate and control who or what may engage in commerce in relation to World Youth Day events. For that reason the State submitted that "distribute" means distributed in the course of commerce. We do not accept this submission. 45 The extended definition of "sale" in s 46(1) which includes not only a completed sale but also preliminary, subsequent and ancillary aspects of sale, is so comprehensive it suggests that by adding the word "distribute" in s 46(3), Parliament intended the section to apply to the non-commercial giving of a prescribed article. The ordinary meaning of distribute does not include any connotation of a commercial transaction. It is commonly used to mean: to deal out, to spread, to scatter, or to disburse through a space or over an area: The Macquarie Dictionary, 2nd Revised Edition. The New Shorter Oxford English Dictionary gives as examples "Pray distribute my kindest regards among all friends" and "She distributed memorandum pads, pencils, ashtrays". 46 The non-commercial element of the meaning of "distribute" has a long history, as is evident in the King James Bible, first published in 1611. In its account of the miracle of the loaves and fishes, the gospel of John, 6:11, says "And Jesus took the loaves; and when he had given thanks, hedistributed to the disciples, and the disciples to them that were set down; and likewise of the fishes as much as they would". In our opinion, "distribute" in s 46(3) does not mean distributed in the course of commerce. 47 It follows from the above that, in our view, the validity of cl 4 cannot successfully be challenged on the grounds that it is not authorised by s 46(3). We do not accept the applicants' submission that "there is simply no warrant in the Act to justify the prescription by regulation of articles such as food and drink, candles, stickers and hard goods". There is nothing in the definition of "prescribed article" that would exclude such articles from the ambit of regulation under s 46. The only other subclause of s 46 that deals with regulation is s 46(9), which ensures that the regulation making power extends to the giving of approval under the section, and provides for conditions of that approval and procedural matters such as application fees etc. There is nothing in s 46(9) to limit the power of the Authority to prescribe articles under s 46(10). 48 As is clear from our discussion below of cl 7, we accept the general principle that a regulation 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 the Parliament. The applicants submitted that the "excessive reach" of cl 4 falls foul of this principle and observed, in their written submissions: For example, the prescription of all "food and drinks" means that a "Good Samaritan" observing a pilgrim walk in an Authority controlled area who wishes to show the Christian charity by distributing food and drink to the pilgrims is caught by the combined operation of s 46 of the Act and clause 4 of the Regulation. It seems extraordinary that such a spontaneous charitable act requires the Good Samaritan to seek and obtain prior written permission from the Authority to avoid the commission of an offence under sub-section 46(3). The relevant excessiveness is to be found primarily in the list of prescribed articles in clause 4… 49 The concept of "distributing food and drink to the pilgrims" involves an element of forethought and system which is at odds with the notion of "a spontaneous charitable act". In our view, the prohibition on the distribution of food and drink would not prohibit the giving of food or water to a pilgrim in distress. Distributing food and drink has the connotation of sharing between a number of people and would not apply to relieving the distress of an individual or individuals. 50 The applicants further claimed that the excessiveness of cl 4 is further illustrated by its operation in respect of their proposed activities. The proposed conduct of the applicants as pleaded is set out in detail earlier in these reasons. In summary, the amended Statement of Claim asserts that on 19 July 2008 the first applicant proposes, while in Moore Park on the Pilgrim Walking Route, to hand out condoms as well as flyers and leaflets containing information in relation to certain "political matters". The second applicant proposes on the same day, in both Central Railway Station and Moore Park or the Pilgrim Walking Route, to hand out candles, condoms, stickers containing political slogans and leaflets containing information in relation to certain "political matters". Both Central Railway Station and Moore Park are World Youth Day declared areas under the Act. 51 Both applicants gave examples of the slogans that will appear on stickers and badges that they propose to distribute. They include the 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? 52 The applicants claimed that "the imposition of a regime which requires [them] to obtain prior permission from the Authority to distribute articles such as condoms, candles, stickers and leaflets is unjustifiably excessive and cannot be supported by the nature and scope of any relevant provision in the Act". 53 In our view none of the classes of prescribed articles would include condoms. Indeed the New South Wales Solicitor General not only conceded as much but made a positive submission to that effect. Similarly, symbolic coat-hangers such as the applicants propose to distribute do not fall within any of the classes prescribed. We are also of the opinion that leaflets and flyers which the applicants intend to distribute do not fall within any class of prescribed article. The applicants submitted that they might be regarded as "stationery" and therefore come within category (h). We do not accept this submission. Paper on which the leaflets and flyers are printed may have been "stationery", but once printed it does not fall within that category. 54 The 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 English Dictionary or the Macquarie Dictionary. There is, however, a definition in the Encarta Dictionary (online dictionary), which defines "giftware" as either "goods suitable as gifts" or "goods that are marketed for buying as gifts for other people, e.g. china and crystal". The Macquarie Dictionary describes "wares" as "articles of merchandise or manufacture, or goods". Compound nouns that include "ware" are not uncommon. They generally describe a subcategory of merchandise 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. 55 In the case of wares that are classified by use, the classification is neither precise nor exclusive but refers to a common use. Not every item that might be used in a kitchen would be classified as kitchenware. Even more so with giftware. There is almost no article of merchandise that could not be given as a gift and yet the description "giftware" is not so comprehensive. Whether an item should be classified as giftware may depend on context. This much can be seen in cl 4(1)(f) where the examples given in brackets are comparatively small items that, in the context of the World Youth Day Act and Regulations, might serve as souvenirs of the event and appropriate gifts for those who have an interest in the event. The same could not be said of the button badges and stickers that the applicants propose to distribute. While we do not deny that such items might be bought and sold or that they might in some circumstances make appropriate gifts, we do not accept that they fall within the category of "giftware" in cl 4(1). 56 Similar reasoning applies to t-shirts. Although they are mentioned in cl 4(c) as included in the class of "items of apparel", t-shirts bearing slogans of the type that the applicants propose to distribute do not, in our view, fall within this class. 57 In summary, in relation to the condoms, coat-hangers, t-shirts, leaflets, flyers, button badges and stickers that the applicant wishes to distribute, the argument that the reach of cl 4 is excessive fails because the clause does not cover the items in those categories which the applicants wish to distribute. The question whether the reach of cl 4 may be excessive in other respects is not before the Court. 58 The second applicant said in her affidavit that she proposes to distribute candles "to raise awareness about the fact that same-sex marriage, abortion, birth control and homosexuality are not obstacles to world peace". Candles are mentioned in cl 4(1)(b) as falling within the class of "religious items". There is no doubt that candles are commonly used as religious items, as for example they are burned in churches. Equally clearly candles may be used as entirely secular items, for example to light a dinner table. Candles are also commonly used as symbols of peace. It may be that they derive this symbolism from their association with religion. There was little argument and no evidence given on these matters at the hearing. It is not possible for us to express an opinion as to which candles would be prohibited as religious items and which would not. The issue could only be resolved in the context of a particular prosecution brought following a failure to comply with the regulation. 59 The validity of s 46(3) cannot be determined by considering its operation in isolation from the range of prescribed articles to which it applies. The question of an impermissible burden on the implied freedom of political communication cannot arise from a consideration of the subsection taken by itself. Read together with cl 4 of the Regulation for the reasons which we have outlined above, it does not impact on the proposed conduct of the applicants in any way that would constitute a burden on their implied freedom of political communication. That is sufficient to dispose of the constitutional challenge to s 46(3) within the framework of the case presented to the Court. THE VALIDITY OF CLAUSE 7 OF THE REGULATION 60 In determining whether cl 7 is within the regulation making power conferred by the WYD Act it is necessary to consider the proper construction of the section conferring that power in light of the scope and objects of that Act. Clause 7 is then to be examined to determine whether, on its proper construction, it falls within the statutory authority. These two processes are interdependent. They are not at large but shaped by the issues for determination by the Court. 61 As earlier noted s 58(1) confers on the Governor a wide power to make regulations "… for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act". Section 58(2) begins with the words "In particular, regulations may be made for or with respect to the following …", referring to a list of topics then set out. It was submitted for the applicants that s 58(2) defined the matters upon which regulations can be made under s 58(1). We do not accept that submission. Section 58(1) is the grant of a general power to make regulations confined by the words of that subsection. Section 58(2) puts certain topics beyond doubt as falling within that general power. It does not limit the general power to the listed topics. Such a limitation would result in s 58(1) being largely redundant. Sections 58(1) and 58(2) are to be read together determining the scope of the power they confer. 62 That is not to exclude the possibility that s 58(1) would be construed as limited, in its application to the topics listed in s 58(2), by any limitation or qualification arising out of the definition of those topics. For example, in s 58(2)(b) which was relied upon to support cl 7, the regulation making power relates to the conduct of the public on "World Youth Day venues and facilities". Although it is not an issue in this case it is arguable that s 58(1), in its application to regulation of "conduct of the public" might be constrained by the geographical limits indicated in s 58(2)(b). 63 The first limb of s 58(1) picks up, as subjects of the power which it confers, matters which by other provisions of the Act are "required or permitted to be prescribed". Examples of those provisions include ss 3B, 15A, 45(4) and 46(3). There is no specific prescription mentioned in the WYD Act which would support cl 7 under this limb of s 58(1). 64 The second limb of s 58(1) is the class of regulation "necessary or convenient … for carrying out or giving effect to this Act". This requires that there be some rational relationship between the regulation and the powers, obligations and liabilities created by the Act. A regulation could also be justified, under this general head of power, if it could be shown to have a rational relationship with an object or purpose of the WYD Act. That requirement applies to the exercise of the regulation making power with respect to matters listed in s 58(2). A regulation could not be made under that subsection that was not necessary or convenient to be prescribed for carrying out or giving effect to the WYD Act. To accept that constraint is, in practical terms, to do little more than meet the requirements applicable to the exercise of any discretionary power conferred by a statute namely that it fall within the scope and objects of the Act: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J). 65 The State in its written submissions relied upon s 58(2)(b) as the topic of the regulation making power which supports cl 7. It is necessary therefore to construe s 58(2)(b) in order to determine whether cl 7 of the Regulation falls within it. The authority given by s 58(1) read with s 58(2)(b) relevantly authorises the making of regulations with respect to: the conduct of the public [on] World Youth Day venues and facilities. A World Youth Day venue or facility under s 3 covers a World Youth Day declared area and any other venue or facility required for hosting a World Youth Day event. By virtue of s 3A a World Youth Day declared area is any area that is designated to be a World Youth Day declared area by an order under that section. Critical to the scope of the relevant aspect of the regulatory authority conferred by s 58(2)(b) is the width of the term "regulating … the conduct of the public". Its width turns on the nature of the conduct that may be regulated. 66 There is no definition of "conduct" in the Act. In some statutes that word 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 English meaning in the definition of conduct as a noun in the New Shorter Oxford English Dictionary is: Manner of conducting oneself; behaviour; esp in its moral aspect. The term is wide enough, in its ordinary meaning, to encompass any observable act that a human being can do. It may therefore include physical actions such as running or walking. It extends to various forms of communication including speaking, singing, shouting, holding up placards, distributing pamphlets or stickers or other objects to make a point or wearing some form of apparel which conveys a message by bearing some form of writing or which otherwise conveys some sort of message. 67 Unconstrained by any limiting principle of construction, the power conferred by s 58(2)(b), taken in isolation, could be used to make a regulation enjoining silence at World Youth Day venues and facilities or mandating prayer. However there are constraints. It is difficult to see how such a wide application of the words in s 58(2)(b) would be consistent with the requirement in s 58(1) that the regulations be "necessary or convenient … for carrying out or giving effect to this Act" or within the scope and objects of the Act. In this case however there is an important principle independent of such constraints, which limits the power to regulate conduct. 68 The term "regulating … the conduct of the public" is capable of a range of constructions from the regulation of any conceivable conduct to the regulation of conduct relevant to the events on World Youth Day. It may encompass acts and some or all forms of speech and communication. There are constructional choices open. It is an important principle that Acts be construed, where constructional choices are open, so as not to encroach upon common law rights and freedoms. That principle dates back to the statement in Potter v Minahan (1908) 7 CLR 277 in which O'Connor J, quoting from the fourth edition of Maxwell PB, On the Interpretation of Statutes (Sweet & Maxwell, London, 1905) (at 304): It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used. See also Bropho v State of Western Australia (1990) 171 CLR 1 at 18 and Coco v R (1994) 179 CLR 427. In the latter case the High Court said (at 437): The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. 69 There has been some discussion whether "fundamental principles" constitute a reliable criterion for a principle favouring one statutory construction over another. McHugh J, who joined in the joint judgment in Coco 179 CLR 427 from which the above quoted passage is taken, observed in Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 (at [28]): What is fundamental in one age or place may not be regarded as fundamental in another age or place. When community values are undergoing radical change and few principles or rights are immune from legislative amendment or abolition, as is the case in Australia today, few principles or rights can claim to be so fundamental that it is unlikely that the legislature would want to change them. And further (at [29]): Hallowed though the rule of construction referred to in Potter v Minahan may be, its utility in the present age is open to doubt in respect of laws that "infringe rights, or depart from the general system of law". In those areas, the rule is fast becoming, if it is not already, an interpretative fiction. Such is the reach of the regulatory state that it is now difficult to assume that the legislature would not infringe rights or interfere with the general system of law. 70 Finn J, writing extra-curially, after referring to this passage observed that a like rule of construction had been adopted and demonstrated remarkable staying power in United States jurisdictions but had been the object of a great deal of criticism in modern times. His Honour observed, with respect, rightly: More generally, the more we expose the bases of our interpretative principles and evaluate them in light both of contemporary legislative practice and of modern understandings of interpretation as a process, the greater is the likelihood of continuing reappraisal of the validity and vitality of those principles. Finn P, "Statutes and Common Law" in Corcoran and Bottomley (eds) Interpreting Statutes (Federation Press, 2005) at 57 While acknowledging the validity of that caution we observe that the legislature, through the expert parliamentary counsel who prepare draft legislation, may be taken to be aware of the principle of construction in Potter 7 CLR 277 and later authorities such as Bropho 171 CLR 1 and Coco 179 CLR 427, and the need for clear words to be used before long established (if not "fundamental") rights and freedoms are taken away. The principle was recently restated by the Full Court in Minister for Immigration and Citizenship v Haneef (2007) 243 ALR 606; 163 FCR 414. In one sense it has a constitutional dimension. 71 As McHugh J said in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 (at 196): The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture. In Australia, the exercise of legislative power, whether primary or delegated, takes place, as it does in England, in the constitutional setting of "a liberal democracy founded on the traditions and principles of the common law": 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, writing extra-curially in 1960 in the Law Quarterly Review, said: in the interpretation of the Constitution as of all statutes, common law rules are applied. Latham Sir John, The Migration of the Common Law (1960) 76 LQR 54 at 61. In Wik v State of Queensland (1996) 141 ALR 129 at 230Gummow J referred to the common law as "… the ultimate constitutional foundation in Australia". 72 Whatever debate there may be about particular rights there is little scope, even in contemporary society, for disputing that personal liberty, including freedom of speech, is regarded as fundamental subject to reasonable regulation for the purposes of an ordered society. The freedoms associated with personal liberty are not residual, ie what is left beyond the boundaries of legal regulation. In Haneef 163 FCR 414 the Court quoted with approval the observation that: Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction. The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal. Allen TRS "The Common Law as Constitution: Fundamental Rights and First Principles" in Courts of Final Jurisdiction: The Mason Court in Australia, Saunders C (ed), (Federation Press, 1996) p 148. This approach to construction has been described in the United Kingdom as a "principle of legality" explained by Lord Hoffman in R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 (at 131): The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. 73 In Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309, Gleeson CJ referred to Coco 179 CLR 427 and cited Lord Steyn's judgment in R v Home Secretary; Ex parte Pierson [1998] AC 539 at 587, in which his Lordship described the presumption against the infringement of fundamental rights and freedoms as an aspect of the principle of legality governing the relationship between parliament, the executive and the courts. Gleeson CJ said of it (at 329): The presumption is not merely a common sense guide to what a parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law. 74 Freedom of speech and of the press has long enjoyed special recognition at common law. Blackstone described it as "essential to the nature of a free State": Commentaries on the Laws of England, Vol 4 at 151-152. In 1891 Lord Coleridge said: The right of free speech is one which it is for the public interest that individuals should possess, and indeed that they should exercise without impediment, so long as no wrongful act is done. Bonnard v Perryman [1891] 2 Ch 269 at 284; see also R v Commissioner of Metropolitan Police; Ex parte Blackburn (No 2) [1982] 2 QB 150 at 155; Wheeler v Leicester City Council [1985] AC 1054; Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 203. 75 There is a particular rule of the common law which gives effect to the value of freedom of speech by preventing local authorities and public authorities from suing for defamation: Derbyshire County Council v Times Newspapers Ltd [1993] AC 534. In that case the House of Lords said it would be contrary to the public interest to allow a local authority to sue "because to admit such action would place an undesirable fetter on freedom of speech" (at 549). The same principle was applied by the New South Wales Court of Appeal in Ballina Shire Council v Ringland (1994) 33 NSWLR 680. In both the House of Lords and the New South Wales Court of Appeal reference was also made to international conventions on human rights to which the United Kingdom and Australia respectively are parties which involve the protection of freedom of speech. 76 In its 1988 decision in Davis v Commonwealth (1988) 166 CLR 79, the High Court applied a principle supporting freedom of expression to the process of constitutional characterisation of a Commonwealth law. The Australian Bicentennial Act 1980 (Cth) reserved to the Australian Bicentennial Authority the right to use or licence words such as "bicentenary", "bicentennial", "200 years", "Australia", "Sydney", "Melbourne", "founding", "First Settlement", and others in conjunction with the figures "1788, 1988 or 88". Articles or goods which bore any of those combinations without the consent of the Authority would be forfeited to the Commonwealth. Some aspects of these provisions were struck down. In their joint judgment Mason CJ, Deane and Gaudron JJ (Wilson, Dawson and Toohey JJ agreeing) said (at 100): Here the framework of regulation … reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorised use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power. 77 Brennan J in a separate judgment in the same case said (at 116): Freedom of speech may sometimes be a casualty of a law of the Commonwealth made under a specific head of legislative power - for example, wartime censorship - or of a law designed to protect the nation - for example, a law against seditious utterances - but freedom of speech can hardly be an incidental casualty of an activity undertaken by the Executive Government to advance a nation which boasts of its freedom. 78 The present case is not about characterisation of a law for the purpose of assessing its validity under the Constitution of the Commonwealth. The judgments in Davis 166 CLR 79 however support the general proposition that freedom of expression in Australia is a powerful consideration favouring restraint in the construction of broad statutory power when the terms in which that power is conferred so allow. 79 In the context of World Youth Day it is necessary to acknowledge that another important freedom generally accepted in Australian society is freedom of religious belief and expression. Section 116 of the Constitution bars the Commonwealth from making any law prohibiting the free exercise of any religion. This freedom is recognised in the Universal Declaration of Human Rights and in the 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 adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. 80 It is not necessary for present purposes to define comprehensively the limits of the classes of regulations that may or may not be made under the head of power in s 58(2)(b). No doubt conduct could validly be regulated which involves disruption of, or interference with, the free expression of religious beliefs by participants in WYD events. Clause 7(1)(c) relating to obstruction of WYD events is properly directed to such ends. Nor could 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 person within a World Youth Day declared area or others. 81 The principal issue in relation to cl 7(1) is its application under cl 7(1)(b) to conduct that "causes annoyance … to participants in a World Youth Day event". The term "annoy" as defined in the Shorter Oxford English Dictionary relevantly means: To affect so as to ruffle, trouble, vex. Annoyance has a corresponding meaning. The Macquarie Dictionary defines "annoy" as: To disturb in a way that is displeasing, troubling or slightly irritating. 82 Conduct which may attract a direction under cl 7(1)(b) is conduct which "causes annoyance … to participants in a World Youth Day event". That is to say it is conduct which actually results in its observers being ruffled, troubled, vexed, disturbed, displeased or slightly irritated. These are responses which depend very much on the individuals concerned. Some may find protests of the kind which are proposed by the applicants mildly amusing. Others may be practising Catholics or Christians who agree with some of the protestors' points and are not troubled by them. There may be others who find the protests irritating and who are, in the relevant sense, annoyed by them. Annoyance to "participants" within the meaning of the Regulation may be annoyance to many or a few. There is no objective criterionto assist the judgment of "an authorised person" in deciding whether to issue a direction under cl 7. There may be circumstances in which it would be difficult if not impossible for a person to whom a direction is given to know whether his or her conduct was such as to authorise the giving of the direction. It is little consolation to the person affected by a direction that he or she could argue the point later in a prosecution in a court of law as the State suggested. 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. 84 The term "inconvenience" has a more objective content. The relevant definition in the Shorter Oxford English Dictionary is: Harm, injury, mischief; misfortune, trouble. It is used in a transitive sense by reference to the effect of the relevant conduct on participants. The Macquarie Dictionary defines it as: Arranged or happening in such a way as to be awkward, inopportune, disadvantageous or troublesome. 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. DISCRETION TO WITHHOLD DECLARATORY RELIEF 85 The applicants seek declaratory relief. The State submitted that, in the exercise of its discretion, the Court should decline that relief. It did so on the basis, inter alia, that the precise nature of the conduct in which the applicants intend to engage is not clear. The Court, it was said, is being asked to consider the issue raised by the applicants without full or clear facts. The State formally denied the standing of the applicants to claim declaratory relief but subsumed its argument on that question in its submission that the Court should exercise its discretion to withhold the relief sought. We observe that as was pointed out in Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262: In federal jurisdiction, questions of 'standing', when they arise, are subsumed within the constitutional requirement of a single 'matter'. We are satisfied that there is a controversy sufficient to constitute a matter for the purposes of Chapter III of the Constitution and the proper invocation of this Court's jurisdiction. 86 The circumstances in which the Court will grant declaratory relief were enunciated by Lockhart J on behalf of the Full Court, in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406: 1. The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of a legal controversies. The answer to the question must produce some real consequences for the parties. 2. The applicant for declaratory relief will not have sufficient standing if relief is claimed in relation to circumstances that have not occurred and might never happen; or if the Court's declaration will produce no foreseeable consequence for the parties. 3. The party seeking declaratory relief must have a real interest to raise it. 4. Generally there must be a proper contradictor. See also: JN Taylor Holdings Ltd (in liq) v Alan Bond (1993) 59 SASR 432. 87 The question of the discretion to withhold declaratory relief in these proceedings now only arises in relation to cl 7(b) and then only in so far as that clause relates to conduct which causes annoyance to participants in World Youth Day events. It is not necessary for the purpose of exercising that discretion to grant or withhold relief, in this case, to have a precise catalogue of the conduct in which the applicants intend to engage. It is clear that in various ways they intend to express views likely to be at odds with those of many of the participants. They may do so in a way, or using means, which some participants are likely to find annoying. The 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. Importantly, the declaration sought is not about the lawfulness of the future conduct of the applicants in which event a degree of precision in the definition of that conduct would be necessary before such relief could be contemplated. What is sought is a declaration of the invalidity of an aspect of a law of general application. On the principles enunciated by Lockhart J the applicants have established that the discretion to grant the relief should be exercised in their favour. CONCLUSION 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. 89 On the matter of costs the applicants have had mixed fortunes in the result. They have made out their challenge in an area of significance to their intended activities but have failed to make it out in other areas. In our opinion, having regard to the division of issues it is appropriate that we order the State to pay one third of the applicants' costs of the proceedings. We will however allow both parties liberty to file written submissions within 14 days if either of them should seek a different order as to the costs of the application. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Branson and Stone.

Counsel for the Applicants: Dr J Griffiths SC with Ms K Richardson and Ms M Nagy

Counsel for the Respondent: Mr MG Sexton SC Solicitor-General for the State of New South Wales with Mr JK Kirk

Solicitor for the Respondent: IV Knight, Crown Solicitor