WYD regulations ruled invalid

Readers may recall that the Star legal column in last week’s edition looked at the farce which was the World Youth Day Regulations 2008. Since then two activists involved with the No to Pope Coalition lodged a constitutional challenge to the regulations. In a much anticipated decision, the full Federal Court in Evans v State of NSW found the regulations invalid to the extent they purported to give certain persons the authority to issue fines for behaviour which is causing annoyance or inconvenience to a participant at a World Youth Day event.
The applications lodged with the Federal Court sought orders to the effect that the regulations were invalid. The orders were sought on two bases. Firstly, that the laws impermissibly infringed the implied right to freedom of political communication found to exist in the Australian Constitution. The second ground of appeal was that the regulations exceeded the regulation-making power contained in the World Youth Day Act 2006 (WYD Act).
In the absence of an explicit right to free speech in the Constitution, the Australian Courts have understood the implied right to freedom of political communication quite narrowly. Unsurprisingly, the full Federal Court shied away from making a constitutional finding on this matter, instead finding the regulations had exceeded the regulation-making power contained in the WYD Act.
While the decision of the Court to invalidate the WYD Regulations is welcome, Parliament can rectify this embarrassing situation in the future by passing more carefully drafted legislation which expressly allows the Executive to promulgate equally draconian regulations. A finding of constitutional invalidity (although likely to have been appealed to the High Court) would have sent a stronger message to the hapless Iemma Government that the Courts won’t tolerate measures that infringe on basic democratic rights.
Cases such as this highlight the need to consider either a Constitutional or statutory Bill of Rights. Australia remains one of the very few respected liberal democracies around the world which has not moved to entrench these basis democratic rights. We can no longer rely upon our politicians (and certainly not the NSW Labor Party) to set aside short-term interest to uphold the values of democracy.