Parliament did not intend to curb their existence
That the objects of Part III of the Act are directed to merely regulating public protests further suggests that Parliament did not intend to curb their existence, and accordingly, that the surrounding provisions must be read in a manner which preserves the ability to protest. Indeed, the reference to public order and disruption indicates that any relevant conduct captured by the Act must in fact tangibly impede the essential commercial interests of the participating private entities. Accordingly, a court is likely to be persuaded by the necessity of ensuring the power and ‘means’ conferred by the Act are reasonably proportionate to its ‘designated purpose or object’, and ‘appropriate and adapted’ to achieve such a purpose.
The phrase ‘overtly aggressive or demeaning conduct’ found in s. 20 of the Trade Practices Act 1974 (Cth) is so broad and ambiguous as to call for a narrow construction in order to protect fundamental rights such as freedom of movement and property rights which are protected by common law principles. It has been long established that when interpreting legislation, general words should be narrowly construed, especially when they are intended to interfere with fundamental rights (Lange v Australian Broadcasting Corporation [1997] HCA 25). The word \\\’impede\\\’ captures a wide array of actions which may prevent or merely delay someone from pursuing their commercial interests but does not specify the type of conduct required. This ambiguity renders s 20 amorphous and therefore its interpretation must be limited by a narrow construction in order to preserve individuals’ fundamental rights (Mackenzie v Attorney-General [1984] NZCA 33). As stated by McHugh J., ‘general words will rarely be sufficient to manifest an intention to interfere with fundamental rights’ ([1997] HCA 25, at para 18).
When interpreting an ambiguous provision, it is generally assumed that the court will prefer, where available, a construction of the relevant statute which minimises its encroachment upon these policies. In this instance, given that Part III of the act seeks only to regulate public protests – rather than curtail them entirely – it necessarily follows that any relevant contractual power conferred pursuant to s 20 must be reasonably proportionate towards achieving its designated purpose without overreaching individual freedoms or essential interests protected by common law principles . A preferred approach would operate towards regulating protests within reasonable limits – those which obstruct or prevent access without violating anyone\’s civil liberties – while preserving its compatibility with accepted legal standards. Such an approach ensures the power conferred under ss 19 and 20 is indeed ‘appropriate and adapted’ for achieving Parliament’s desired objectives whilst also safeguarding individuals from disproportionate interference arising out of peaceful demonstrations conducted on Casino premises.
