The authorized officer’s actions were not in fact authorized by the legislation
With a narrow construction of Part III likely to prevail, it appears the authorised officer’s actions were not in fact authorised by the legislation. Neither the river nor boardwalk protest staged by the Union group involved conduct which may be deemed reasonably likely to escalate to involve physical violence or intimidation in accordance with the construction advanced at [4]-[6]. That the river protest involved esoteric references to the internship scheme, while the boardwalk protest was seemingly parodic in nature indicates that a court will find that the conduct did not rise to the threshold required by a narrow interpretation which is compatible with the principle of legality.
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 minimizes its encroachment upon these policies. Given that Part III is directed towards regulating public protests rather than curtailing them entirely, it follows that any relevant contractual power conferred under s 20 must be reasonably proportionate towards achieving its designated purpose without overreaching individual freedoms or essential interests protected by common law principles . In this instance given the Union group’s protests did not involve activities which may reasonably be deemed likely escalate into physical violence or intimidation – such as esoteric references made during their river protest and parodic scenes enacted on boardwalk – it appears unlikely that Part III was ever intended authorize officers take action against these demonstrations even within a reasonable interpretation guided by principle legality. A preferred approach would operate towards preserving individuals’ freedom of expression whilst still protecting commerce from interference arising out of peaceful protests conducted on Casino premises.
