The Principle of Legality and the Judicial Protection of Rights — Evans V New South Wales
| Published date | 01 June 2009 |
| Date | 01 June 2009 |
| Author | Dan Meagher |
| DOI | 10.22145/flr.37.2.5 |
| Subject Matter | Article |
THE PRINCIPLE OF LEGALITY AND THE JUDICIAL
PROTECTION OF RIGHTS — EVANS V NEW SOUTH WALES
Dan Meagher*
I INTRODUCTION
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 Wales1
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.
II THE CASE
A Facts and legislation
In the lead-up to World Youth Day — the week long pilgrimage of young Catholics
held in Sydney in July 2008 — the New South Wales Government enacted the World
Youth Day Regulation 2008 (NSW) ('WYD Regulation'). The WYD Regulation was made
pursuant to the World Youth Day Act 2006 (NSW) ('the Act'). The Act, as its long title
outlined, was
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
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* School of Law, Deakin University. 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').
294 Federal Law Review Volume 37
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planning, co-ordination and delivery of government services in relation to World Youth
Day 2008 and related events; and for other purposes.
The applicants — the 'No to Pope Coalition' — were an organisation 'of persons and
groups … opposed to the teachings of the Catholic Church on sexuality, contraception
and reproductive rights.'2 The Coalition planned to peacefully confront the
participants during World Youth Day events to communicate their concerns on these
matters. In order to do so, they wanted to provide the pilgrims with 'items including t-
shirts, leaflets, flyers, stickers, condoms and coat-hangers. The coat-hangers [were]
intended to symbolise the death of women from "backyard" abortions.'3
It was the concern of the applicants that the Act and, in particular, the WYD
Regulation, would prohibit them from distributing these materials and therefore
preclude their planned protest. Section 46 of the Act prohibited the selling and
distributing of 'prescribed articles' in areas controlled by the World Youth Day Co-
ordination Authority4 and the impugned clauses of the WYD Regulation read as
follows:
Clause 4
(1) For the purposes of the definition of "prescribed article" in section 46 (10) of the Act,
the following classes of articles are prescribed:
(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) hard goods (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).
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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.
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