Administrative law: delegated legislation and statutory interpretation

These notes are drawn from Michael Head, Administrative Law: Context and Critique (Federation Press, 3rd ed, 2012) ch 6; Roger Douglas and Michael Head, Douglas and Jones’s Administrative Law (Federation Press, 7th ed, 2014).

  • The foundation stones for much of judicial review of administrative decisions are delegated legislation and statutory interpretation.
  • Statutory interpretation is essential to:
    • testing the validity of delegated legislation; and
    • laying the basis for all judicial review of administrative decisions.
  • Much of administrative law hinges on interpreting legislation.

Delegated legislation

  • When challenging a decision, a two-step investigation should be used:
    1. Is the delegated legislation within the power of its parent act?
    2. Is the decision authorised by the delegated legislation?
  • The Senate has potentially enormous political and legal power to disallow government regulations and other forms of delegated legislation:
    • The Hawke Government’s 1986–87 Australia Card proposal was passed following a double dissolution election in 1987.
      • The opposition parties in the Senate realised they could prevent the Act from coming into effect by disallowing regulations that would specify when the Act was to enter into effect.
      • The Government decided not to proceed with the legislation partly for this reason.
  • In 1998 the Senate disallowed unfair dismissal regulations (which were an attempt to circumvent the Senate).
  • In 2002 the Senate disallowed the Howard Government’s regulations to extend the migration ‘excision zone’ to most offshore islands.

Defining delegated legislation

  • Primary legislation consists of statutes passed by Parliament.
  • Delegated legislation is legislation made by a person or entity who has been granted law-making authority under a statute.
    • It is essentially a transfer of law-making power.
  • There are many names for delegated legislation which vary according to the enabling statute:
    • disallowable instruments;
    • regulations;
    • by-laws;
    • proclamations;
    • rules;
    • ordinances;
    • determinations;
    • directives;
    • declarations;
    • general orders or instructions;
    • directions;
    • operational plans;
    • university statutes;
    • policy directions;
    • program standards;
    • instructions;
    • codes of practice;
    • guidelines;
    • circulars; and
    • practice notes.
  • In 1988 the Senate Standing Committee on Regulations and Ordinances reported 115 categories of disallowable instruments.
  • The use of such names is not conclusive in distinguishing legislative instruments from administrative processes.
    • An instrument may be legislative despite being described as a policy direction.
    • A customs duty quota scheme was held not to be of legislative effect: Minister for Industry and Commerce v East West Trading (1986) 64 ALR 466.
  • Delegated legislative powers can be broad:
    • A notorious historic example of delegated legislation is the Statute of Proclamations 1539, 31 Hen 8, c 8 which gave Henry VIII broad powers to legislate by proclamation (similar provisions are still called ‘Henry VIII clauses’).
    • Today powers almost as far-reaching are assigned by legislation to:
      • the Executive Council;
      • individual cabinet ministers;
      • heads of departments and agencies; and
      • a variety of other persons.
    • An example is the Migration Act 1958 (Cth) ss 504–506 allow regulations to be made covering the entire range of visa applications and other decisions to be made under the Act.
  • The number of legislative instruments has grown significantly over time:
    • In 1982–1983 there were 552 statutory rules and 150 disallowable instruments.
    • In 1990–1991 there were 484 statutory rules and 1161 disallowable instruments.
    • In 2003–2004 the Senate Regulation and Ordinances Committee examined 1561 instruments.

Legislative Instruments Act 2003 (Cth)

  • The Legislative Instruments Act 2003 (Cth) introduced reforms to the federal rules for making delegated legislation.
  • The Act requires:
    • public consultation in making delegated legislation;
    • publication in a Legislative Instruments Register;
    • tabling in Parliament within six sitting days; and
    • a 10-year sunset clause.
  • Lack of public consultation does not affect the validity or enforcement of an instrument: s 19.
  • If an instrument is not tabled within six sitting days it ceases to have effect: s 45.
  • A legislative instrument is a written instrument of a legislative nature that was made in the exercise of a power delegated by Parliament: s 5(1).
    • Without limiting this general definition, an instrument is legislative if it determines or alters the content of the law (rather than applying the law in a particular case) and it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying such: s 5(2).
  • This definition will exclude a significant number of administrative instruments such as guidelines and codes generated by the bureaucracy without being prompted by Parliament: Mark Aronson, Mark Dyer and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 3rd ed, 2004) 136.
  • The Act declares certain kinds of rules not to be legislative instruments and allows the Attorney-General to certify whether an instrument is legislative or not: ss 5–11.
  • Any instrument registered in the Federal Register of Legislative Instruments is taken by that fact to be a legislative instrument: s 5(3).
  • Certain classes of instruments (such as regulations) are treated as legislative instruments regardless of the s 5 definition: s 6.
  • Despite an official review of the Act criticising the s 5 definition for circularity, no amendment was made.
  • An instrument is declared not to be legislative if it is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’): Legislative Instruments Regulations 2004 (Cth) sch 1 pt 1 item 21.
    • The ADJR Act applies only to the review of decisions of an administrative character.
    • This has caused issues — an unregistered instrument thought to be administrative was found to be legislative in character: Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451.
  • The distinction assumes instrument can be clearly distinguished as either administrative or legislative.
    • The Act defines ‘legislative’ actions briefly; the ADJR Act does not define ‘administrative’ at all.
    • Some rulings relating to the ADJR Act have held that an action is legislative rather than administrative: see, eg, Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451; RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185.
    • Other rulings have recognised that the distinction is unclear and that many actions can be classified as administrative or legislative for a particular purpose: see, eg, Federal Airports Corporation v Aerolinas Argentinas (1997) 76 FCR 582, 590; Central Queensland Land Council Aboriginal Corporation v Attorney-General (Cth) (2002) 116 FCR 390, 408.
  • The 2008–09 review of the Act found that the Federal Register of Legislative Instruments was limited, unreliable and difficult to use.

Constitutional limits of delegated legislation

  • When the Scullin Government deliberately circumvented the power of the Senate to disallow its sweeping regulations relating to preferential employment of union members on the waterfront, the High Court upheld the validity of those regulations: Meaks v Dignan (1931) 46 CLR 72.
    • This did not infringe the notion of separation of powers in the High Court’s view.
    • It approved extensive delegation of legislative power to the executive.
    • The High Court dismissed the objections to the validity of the delegation of legislative power to the Governor-General (effectively the Cabinet) despite the Transport Workers Act 1928 (Cth) stating that the regulations would have the force of law subject only to the Acts Interpretation Act 1901 (Cth).
    • The objections were:
      1. That the maxim that the delegate may not themselves delegate applied.
      2. The it breached the separation of powers doctrine.
      3. That Parliament had abdicated its legislative power under the Australian Constitution.
    • The first and second objections were rejected because they would make effective government impossible if upheld in the manner contended.
    • The third objection would seem to only apply if Parliament purported to transfer its entire power to legislate over a subject matter assigned to it under s 51 of the Constitution.
      • In wartime the High Court has permitted Parliament to hand over almost its entire defence power to the executive.
  • The High Court later rejected the Federal Government’s proposition that Parliament could delegate almost unlimited power with respect to aliens to the Immigration Minister: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476:

    It is well settled that the structure of the Constitution does not preclude the Parliament from authorising in wide and general terms subordinate legislation under any of the heads of its legislative power. … But what may be ‘delegated’ is the power to make laws with respect to a particular head [of power] in s 51 of the Constitution. The provisions canvassed by the Commonwealth would appear to lack that hallmark of the exercise of legislative power identified by Latham CJ in Commonwealth v Grunseit, namely, the determination of ‘the content of a law as a rule of conduct or a declaration as to power, right or duty’.

  • A majority of the High Court sanctioned provisions in the ‘Work Choices’ legislation that gave the minister power to ban a long list of basic workers’ rights and conditions without passing further legislation: New South Wales v Commonwealth [2006] HCA 52.
    • The legislation left it to the regulations to determine the ‘prohibited content’ that could not be included in workplace agreements.
    • The regulations could amend the parent legislation itself.
    • The regulations could take effect immediately and would remain in effect unless later disallowed by a majority in either House of Parliament (providing ineffective oversight if government controlled both Houses).
    • The power was criticised by Kirby J as ‘vague, indeterminate and open-ended’ and anti-democratic.
    • It allowed the outlawing of conduct with no notice and made it difficult to even locate the regulations.
    • These criticisms were held by the majority to be separate from the question of constitutionality.
    • In response Kirby J stated:

      this is an inadequate response. … Under the Constitution it is the duty of this Court to uphold the law-making and supervisory powers of the Parliament. We should not sanction still further erosion of those powers and their effective transfer to the Executive Government, whether appearing in vague, indeterminate and open-ended appropriations … or in vague, indeterminate and open-ended regulation-making powers … . There comes a point when a regulation-making power becomes so vague and open-ended that the law which establishes it ceases to be a law with respect to a subject of federal law-making power, becoming instead a bare federal attempt to control and expel State laws. …

      The impugned provisions border on an endeavour to enact an abdication of the Parliament’s responsibilities. This Court should say so and forbid it.

Judicial review of delegated legislation

  • The main control over delegated legislation is the requirement that it be published and tabled in both Houses of Parliament to allow for committee scrutiny.
  • Most cases in this area concern breaches of those procedural requirements.
  • Courts may also declare legislative instruments to be unlawful on the grounds that they are ultra vires (beyond legal power) including being uncertain, unreasonable, enacted in bad faith or for improper purpose: Re Minister for Primary Industries and Energy v Australia Fisheries Pty Ltd (1993) 40 FCR 381.
  • Primary legislation and delegated legislation have two fundamental differences:
    • Except on constitutional grounds, a court cannot question whether an Act was adopted within Parliament’s power; it cannot declare it to be unreasonable or enacted for an improper purpose.
    • Courts can decide whether a piece of delegated legislation is authorised by its parent act; the court is considering whether the executive has violated the parent statute by exceeding the power delegated to it.
  • The underlying test for delegated legislation is whether it was authorised by the parent statute: Re Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381.
    • This involves applying the rules of statutory interpretation.
    • In that case the issue was a fisheries management plan that included a quota system found to be statistically impossible and irrational in its formula.
    • Lockhart J ruled that the plan was invalid on the grounds that it was unreasonable, but referred to such cases as extreme.
    • Lockhart J quoted Lord Russell in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 to the effect that subordinate legislation would only be invalidated where:

      they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires’.

  • Judicial review is also applicable where there is an attempt to sub-delegate legislative power.
    • Courts have held that sub-delegation is an abuse of power without an express or implied grant of power to do so.
      • This has been applied more strictly in regards to legislative than administrative power.
  • Standing is a limitation on the scope of judicial review:
    • A plaintiff must have a special interest affected by the legislative instrument. -This may present particular problems in relation to delegated legislation:
      • In Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 the High Court ruled that the plaintiff lacked standing despite having participated in the decision-making process that led to the decision being challenged.

Publication rules

  • Delegated legislation must be published.
  • The commencement date is usually the date of publication.
  • Formerly publication meant notification in the Government Gazette.
  • The Legislative Instruments Act 2003 (Cth) now requires listing in the online Legislative Instruments Register.
  • Notification in the Gazette is an option if electronic registration is not possible.
  • The new approach has made a number of changes:
    • Previously copies had to be made available for inspection and purchase by the public.
    • If registration is required under Legislative Instruments Act 2003 (Cth) div 2 an instrument will not be enforceable unless registered.
  • Delegated legislation made before the Legislative Instruments Act 2003 (Cth) does not need to comply with the registration requirement.
  • Some cases under the old system will have some relevance:
    • Golden-Brown v Hunt (1972) 19 FLR 438:
      • The case concerned the first Aboriginal Tent Embassy established outside Parliament in 1972.
      • Police forcibly dispersed protestors literally minutes after notification at 9:45 am in the Gazette of an Ordinance empowering the police to do so.
      • The Supreme Court of the Australian Capital Territory:
        • held that the notice in the Gazette was not clear and specific enough in
          • announcing that the Ordinance had been made; or
          • advising of the addresses of the government bookshops where copies could be obtained;
        • held that the Ordinance was not operative at the time of the police raid;
        • declined to grant an injunction to protect against future attacks;
        • declined to rule that the Ordinance was invalid; and
        • advised the Government as to how to remedy the defective notice.
    • Watson v Lee (1979) 144 CLR 374:
      • Copies of foreign exchange regulations were not available on the day they were notified and came into effect.
      • Where statutory rules were required to be notified in the Gazette it was sufficient to state in the Gazette that the rules had been made and to report where copies could be purchased: Rules Publication Act 1903 (Cth) s 5(3).
      • The High Court judgments did not reveal a definitive and authoritative position:
        • Barwick CJ declared: ‘To bind the citizen by a law, the terms of which he has no means of knowing, would be a mark of tyranny’: 379.
        • Stephen and Aickin JJ strictly interpreted s 5(3) as requiring that copies be available for purchase at the nominated location and that failure to do so would render the regulations void (rather than merely inoperative).
        • Barwick CJ held that while copies had to be made available, the onus was on the complainant to prove they were not.
        • Gibbs CJ declared that substantial compliance was sufficient and could be satisfied even if copies were made available 10 days after they came into effect, for example.
        • Mason J denied there was a need to actually make copies: it would be ‘fictional’ and ‘ludicrous’ to think that Gazette notices would help public awareness or even been read by ordinary citizens.
      • Before the decision was handed down the Government had amended the legislation to require copies be made available ‘as soon as practicable’ after notification and that failure to do so would not constitute a failure to notify.
    • The only clear outcome of the case is that a regulation will take effect only from the date of notification, unless the relevant parent statute expressly specifies otherwise.

The tabling requirement

  • The Legislative Instruments Act 2003 (Cth) requires tabling within six sitting days.
  • Both Houses of Parliament have 15 siting days from the date of tabling to disallow the instrument.
  • If the government fails to table the measures it ceases to have effect immediately after the last day for it to be tabled: Legislative Instruments Act 2003 (Cth) s 38(3).
  • Thorpe v Minister for Aboriginal Affairs (1990) 26 FCR 325:
    • Regulations for Australian and Torres Strait Islander Commission elections were notified in the Gazette and came into effect on 18 July 1990.
    • They ceased to have effect on 16 October 1990 because they had not been tabled in the Senate within the period specified.
    • The elections were held on 3 November 1990.
    • The Court was at pains not to invalidate the results of the election even though it was conducted under rules that had ceased to operate.
    • The Court referred to Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 100 which spoke of rules ‘in force at the beginning of the election period’.
    • Northrop J reached the conclusion that the regulation was in force at the time of the election and dismissed the appeal due to the cost and confusion that would be created by declaring the election void.
    • Nevertheless, his Honour condemned the failure to table as ‘arrogance bordering on contempt for the Parliament’.
  • In a later case the Federal Court ordered fresh elections in the Perth district because the rules failed to comply with a statutory requirement of a secret ballot: Yarran v Blurton (1992) 107 ALR 514; Yarran v Blurton [No 2] (1992) 112 ALR 603.

Public consultation requirements

  • Legislative Instruments Act 2003 (Cth) s 17 has a relatively weak requirement that applies particularly where an instrument would
    • have a direct or substantial indirect effect on business; or
    • restrict competition.
  • It provides that: ‘The rule-maker must be satisfied that any consultation that is considered by the rule-maker to be appropriate and that is reasonably practicable to undertake, has been undertaken.’
  • Failure to consult does not affect the validity or enforceability of a legislative instrument: Legislative Instruments Act 2003 (Cth) s 19.

Regulation review committees

  • Once tabled delegated legislation is scrutinised by a Parliamentary Committee; the Senate Regulation and Ordinances Committee.
  • The Committee applies the following guidelines:
    • Principle A — is delegated legislation in accordance with the statute?
      • It must be in accordance with the parent statute.
      • It must not be contrary to the spirit of the authorising legislation.
      • Sub-delegated legislation must be subject to tabling or disallowance.
      • It must have certainty of meaning and operation.
      • It must not exceed the authority delegated.
    • Principle B — does delegated legislation trespass unduly on personal rights and liberties?
      • It must not lessen the operation of provisions protecting human rights.
      • Sensitivity must be shown in relation to personal matters.
      • Privacy must be protected.
      • Property rights, if relevant, must be adequately protected.
      • Excessive fees and penalties should be avoided.
      • Criminal offences should normally provide a defence of reasonable excuse.
      • Onus of proof should normally be on the prosecution.
      • Retrospective application should not disadvantage anyone other than the Commonwealth.
    • Principle C — does delegated legislation make rights unduly dependent on administrative decisions which are not subject to independent merits review?
      • Deals with delegated legislation that affects the right to practice a trade or profession or to carry on a business or otherwise affecting livelihood.
      • Decision-making criteria should be objectively formulated.
      • An express statement is required that power must be exercised reasonably.
      • Review of merits by independent body should be provided.
      • A decision should be notified within 28 days.
      • A note of appeal rights and availability of statement of reasons for decision should be given to affected person.
    • Principle D — does the delegated legislation contain matters more appropriate for parliamentary enactment?
      • Does it fundamentally change the law?
      • Is it lengthy and complex?
      • Does it bring about radical changes in relationships or community attitudes?
      • Is it part of a uniform laws scheme?
  • Where delegated legislation breaches any of these principles, the Committee will seek explanation from the relevant minister.
    • The minister may meet the committee’s concerns to avoid a disallowance resolution.
  • The Senate Scrutiny of Bills Committee also examines bills introduced into the Senate and may consider:
    • insufficiently defined grants of administrative power;
    • non-reviewable decisions;
    • inappropriate delegation of power; and
    • insufficient scope for Parliamentary scrutiny.

Statutory interpretation

  • In examining legislation, courts are at least theoretically confining themselves to the applying the ‘true meaning’ of the laws.
  • The basic rules of administrative law are:
    • decision-makers may exercise only those powers conferred on them by law; and
    • decision-makers may exercise those powers only after complying with the procedures prescribed by law.
  • In approaching a case:
    • scrutinise the legislative provisions that govern the decision in question; and
    • examine the body of law relating to statutory interpretation.
  • Students often make two mistakes:
    • not reading the relevant legislation carefully enough (the answer to a question may be clear from the legislation); and
    • not interpreting the legislation critically enough with consideration of the rules of statutory interpretation.
  • Do not assume legislation covers the ground that it purports to cover.

Critical importance

  • The outcome of a case can turn on the interpretation of a single word: Haneef v Minister for Immigration and Citizenship [2007] FCA 1273.
  • The Court can divide itself multiple ways over interpretation of the same statute: Combet v Commonwealth (2005) 224 CLR 494.
    • The ACTU and ALP argued that an advertising campaign promoting a law that had not yet passed did not fall within the three outcomes specified in the legislation.
    • Gummow, Hayne, Callinan and Heydon JJ did not accept the arguments of either party to the case.
      • They held that the department was not limited to spending appropriate money towards the specified outcomes.
      • They noted a contrast between expenditure for department outputs and administered expenses created by the Act.
        • According to s 8, administered expenses were limited to the amounts set under each outcome.
        • The explanatory note for s 7 stated that the amounts set out opposite outcomes under the heading ‘Departmental Outputs’ are ‘notional’ and not part of the item nor restricted the scope of expenditure authorised.
      • This interpretation gave remarkably wide scope to both the expenditure and the scope of the outcomes.
    • The parties and the other judges all interpreted s 7 as meaning that the total was fixed, but the amounts could be varied between the outcomes.
      • Gleeson CJ found against the plaintiffs on the basis that the advertising campaign could conceivably fall under the outcomes.
      • McHugh and Kirby JJ dissented on the basis that the advertising campaign had no rational connection with any of the outcomes.
  • The United States Supreme Court has followed the ‘Chevron doctrine’ of deferring to the executive on questions of statutory interpretation: see Chevron USA Inc v Natural Resources Defense Council Inc, 467 US 837 (1984).
    • Australian courts do not follow this; they regard it as a principle that the courts interpret and apply the law while the administration makes determinations of the facts of the case in accordance with the law: see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135.

Relevant principles of statutory interpretation

  • There are three general approaches to statutory interpretation:
    • the literal approach;
    • the purposive approach; and
    • the ‘golden rule’ approach.
  • There are also statutory rules of interpretation: see, eg, Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB.
  • The cardinal rules of statutory interpretation are to:
    • check the jurisdiction — is it State or Commonwealth?;
    • check the statute and any delegated legislation;
    • read all legislative materials critically — do not assume that they cover the ground that they purport to cover;
    • apply the literal, golden and purposive rules where appropriate;
    • apply maxims, especially ejusdem generis (a general term describing a list of specific terms denotes other things that are like the specific elements) and noscitur a sociis (the meaning of a word may be known from accompanying words);
    • give preference to a construction that promotes the purpose or object of the legislation: Acts Interpretation Act 1901 (Cth) s 15AA;
    • make reference to extrinsic materials such as explanatory notes and second reading speeches: Acts Interpretation Act 1901 (Cth) s 15AB;
    • keep in mind two presumptions:
      • statutes are not intended to invade common law rights — democratic rights such as liberty and free speech first, property and contract rights second;
      • statutes are to be interpreted to minimise discrepancy between domestic and international law; statutes are presumed not to violate international law or treaty obligations; and
    • remember presumptions are rebuttable in the light of the language of the act, but courts will require clear legislative intent.
  • Depending on the court’s approach, legislation may be given a very narrow interpretation.
  • Parliaments have more recently encouraged the courts to place more emphasis on the purposive approach.
    • Under the Acts Interpretation Act 1901 (Cth):
      • preference is given to a construction that promotes the purpose or object of the Act, whether expressly stated or otherwise: s 15AA; and
      • reference to materials not in the Act can be made to confirm or determine meaning if it would otherwise be ambiguous or lead to absurd results: s 15AB.
    • Such measures have given the courts greater flexibility to interpret statutes in the manner they prefer.
  • The presumption of non-interference with common law rights emphasises:
    • the democratic rights of individuals; and
    • property and contract rights.
  • The legislation must explicitly or necessarily overturn a common law right; that infringement of a common law right is in keeping with the purpose of the statute will not be sufficient: Watson v Marshall (1971) CLR 621.
  • The Court will not allow legislation to cut across property or contract rights unless there are clear and express words to that effect; the interpretation that interferes least with existing rights is preferred: R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12.
  • Relevant maxims include:
    • ejusdem generis, that general phrases such as ‘or any other thing’ must be read as limited to ‘any other thing’ within the confines of a class of things indicated by earlier specific words: see, eg, Paul v Munday (1976) 50 ALJR 551 where the High Court confined ‘any air impurity source’ to the preceding category of ‘fuel burning equipment’; and
    • noscitur a sociis, that words in a list are to be interpreted as being confined to the scope of the list as a whole: see, eg, R v Ann Harris (1836) 173 ER 198 where the words ‘unlawfully and maliciously stab, cut or wound any person’ were interpreted as covering only wounding by an instrument, not by the hands or teeth.

Case study: World Youth Day 2008

In Evans v New South Wales [2008] FCAFC 130 the Full Federal Court ruled a regulation that infringed the right to free expression was invalid. The Court declared that the regulation was not authorised by the parent statute, which was interpreted as not seeking to override the common law right. The Federal Court jurisdiction was invoked because the case raised constitutional questions (freedom of political communication).

The Court declared that World Youth Day Regulation 2008 (NSW) cl 7(1)(b) was invalid because it exceeded the regulation-making power conferred by World Youth Day Act 2006 (NSW) s 58 to the extent that it attempted to empower an authorised person to direct a person within a declared area to cease engaging in conduct that caused ‘annoyance’ to participants in a World Youth Day event. Members of the No to Pope Coalition intended to communicate to the participants and community their views about sexual tolerance, contraception and reproductive freedom and to distribute items such as t-shirts, leaflets, flyers, stickers, contraceptives and coat-hangers symbolising the death of women from ‘backyard abortions’.

The applicants alleged that the Act and Regulation would prevent them from carrying out these activities. Section 46 of the Act prohibited the sale or distribution of prescribed articles in areas controlled by the World Youth Day Coordination Authority. Section 58(1) conferred the conventional power on the Governor 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) explicitly authorised 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.

Clause 4 of the Regulation prescribed items that could not be sold or distributed without approval of the Authority. Clause 7 gave police officers and authorised persons the power to direct people in declared areas to cease engaging in conduct that caused annoyance or inconvenience to participants. The applicants argued that these provisions went beyond the scope of the Act and were therefore invalid.

The Full Federal Court held that the list of prescribed items was within the authority conferred by the Act, but this was not the case for the power to direct people to cease engaging in conduct that caused annoyance. The Court interpreted the legislation as not intending to prevent or interfere with the exercise of the fundamental right of freedom of speech. Other aspects were held to be valid because they were directed to public safety and the protection of the rights and freedoms of others.

The Court cited, among others, Coco v The Queen (1994) 179 CLR 427, 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.

At the same time, the Court noted to McHugh J’s observation in Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 [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.

The Court placed more emphasis on the remarks of Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309, 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.

The Full Federal Court concluded:

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.