Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Evans v State of New South Wales [2008] FCAFC 130
ADMINISTRATIVE LAW – declarations – delegated legislation – whether ultra vires – approach to construction – Act and Regulation providing for control of conduct of public in connection with major public event – potential restriction on protest activities – construction of regulation making power – presumption against interference with fundamental rights and freedoms – part Regulation beyond power
CONSTITUTIONAL LAW – validity of State statute – whether impermissible burden on implied freedom of political communication – prior question of construction of Act and validity of Regulation made under it – undesirability of deciding unnecessary constitutional question
HUMAN RIGHTS – freedom of speech – freedom of religion
REMEDIES – declarations – discretion
STATUTORY INTERPRETATION – construction – presumption against interference with fundamental common law rights and freedoms – principle of legality – freedom of speech – freedom of religion
WORDS AND PHRASES – "distribute", "conduct", "annoyance", "inconvenience".
World Youth Day Act 2006 (NSW) s 58 Judiciary Act 1903 (Cth) s 39B
World Youth Day Regulations 2008 cl 4, cl 7
RACHEL EVANS and AMBER PIKE v STATE OF NEW SOUTH WALES
NSD 1018 of 2008
FRENCH, BRANSON AND STONE JJ
15 JULY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1018 of 2008
BETWEEN: RACHEL EVANS
First Applicant
AMBER PIKE
Second Applicant
AND: STATE OF NEW SOUTH WALES
Respondent
JUDGES: FRENCH, BRANSON AND STONE JJ DATE OF ORDER: 15 JULY 2008
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. It be hereby declared that Clause 7(1)(b) of the World Youth Day Regulation 2008 is invalid, as beyond the regulation making power conferred by s 58 of the World Youth Day Act 2006 (NSW), to the extent that it purports to empower an authorised person to direct a person within a World Youth Day declared area to cease engaging in conduct that causes annoyance to participants in a World Youth Day event. 2. The application be otherwise dismissed. 3. The Respondent pay one third of the Applicants' costs of the application provided that either party may apply by written submission, filed and served on or before 29 July 2008, to vary this costs order.
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