The word ‘impede’, and the phrase ‘overtly aggressive or demeaning conduct’
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The generality of meaning and sheer range of conduct captured by the word ‘impede’, and the phrase ‘overtly aggressive or demeaning conduct’, necessitates a construction of the legislation which preserves fundamental rights. While the word ‘impede’ is so broad as to include actions which prevent, or merely delay the pursuit of essential commercial interests, ‘overtly aggressive or demeaning’ imports such subjectivity as to effectively render s 20 amorphous and entirely dependent on personal circumstances.. ‘General words’ of such ambiguity ‘will rarely be sufficient’ to manifest ‘an intention to interfere with fundamental rights’, and accordingly, demand a narrow construction to ensure their compatibility with the right to freedom of movement and freedom from interference with property rights.
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. 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).
