When interpreting an ambiguous provision
When interpreting an ambiguous provision, it is presumed that the court will generally prefer, where available, a construction of the relevant statute which ‘minimises [its] encroachment upon fundamental principles’. In the absence of ‘express’ language displacing such principles in the relevant Act, it necessarily follows that the court will interpret the impugned provisions so as to preserve common law rights. Given a broad construction of the provision, which captures conduct that merely causes an apprehension of forceful behaviour or embarrassment, may amount to an unreasonable abrogation of such rights rights, the court is likely to read ss 19 and 20 narrowly. The preferred construction would therefore operate to regulate protests which obstruct or prevent the Casino from providing its employees with a working environment free from violence and intimidation, or physical and psychological harm. This approach ensures the ambiguous language identified is not rendered ‘inoperative or meaningless’, while preserving its compatibility with common law 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 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. In this instance, there is no express language displacing such principles in the legislation itself; hence it necessarily follows that s.20 must be interpreted so as not unreasonably abrogate any common law right in favor of protecting protesters engaged in certain types of behavior deemed obstructive or violent. 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 ambiguous language identified is not rendered ‘inoperative or meaningless’ but serves instead to protect both commerce and individual autonomy from excessive interference arising out of protests conducted on Casino premises.
