The great Catholic document on human rights is Pacem In Terris, the 1963 encyclical of Pope John XXIII. He said:
It is generally accepted today that the common good is best safeguarded when personal rights and duties are guaranteed. The chief concern of civil authorities must therefore be to ensure that these rights are recognised, respected, co-ordinated, defended and promoted, and that each individual is enabled to perform his duties more easily. For "to safeguard the inviolable rights of the human person, and to facilitate the performance of his duties, is the principal duty of every public authority."
Thus any government which refused to recognise human rights or acted in violation of them, would not only fail in its duty; its decrees would be wholly lacking in binding force.
One of the principal duties of any government, moreover, is the suitable and adequate superintendence and co-ordination of men's respective rights in society. This must be done in such a way 1) that the exercise of their rights by certain citizens does not obstruct other citizens in the exercise of theirs; 2) that the individual, standing upon his own rights, does not impede others in the performance of their duties; 3) that the rights of all be effectively safeguarded, and completely restored if they have been violated.
No fair application of these principles would permit an extension of police powers simply to preclude protesters from causing annoyance to pilgrims attending World Youth Day. There is presently strong debate in Australia about the desirability of a bill of rights. The New South Wales Government is strongly opposed. The Victorian Labor Government is strongly in favour having enacted its own Charter of Human Rights and Responsibilities. There is no way that the Victorian parliament would have passed a law authorising police to stop protesters simply from causing annoyance to pilgrims. Any Victorian regulation like that made by the NSW Government would be struck down for being beyond power provided by any statute compliant with the Charter.
If the originating statute itself was inconsistent with the Charter, the Victorian Supreme Court could be asked to make a declaration of inconsistency with s. 15 of the Charter which provides:
- Every person has the right to hold an opinion without interference.
- Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -
(a) orally; or
(b) in writing; or
(c) in print; or
(d) by way of art; or
(e) in another medium chosen by him or her.
- Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary -
(a) to respect the rights and reputation of other persons; or
(b) for the protection of national security, public order, public health or public morality.
Limitation on such rights in Victoria and the ACT is now permitted only if the limitation can be demonstrably justified in a free and democratic society.
It is a mistake for the church to be seen to be endorsing in any way the overbroad "annoyance and inconvenience" provision. It is misleading to suggest that this is just a routine law and order measure. Where these terms have been used in the past in relation to public places generally, they are usually qualified by the addition of the term "by disorderly or insulting conduct", and these words do not appear in the WYD regulation.
Where these terms have been used without those added qualifying words, the regulation is usually restricted to trust property or a sporting venue and applied only to public places providing entry or egress to the trust property or sporting venue. In the case of WYD, the provision is to apply to public places including Hyde Park, the Domain, Botanic Gardens, Centennial Park, Central Railway Station and all other inner city railway stations, Sydney Harbour Bridge, much of Sydney Harbour, and the entirety of the pilgrimage walking route. It is even to apply to the entire campus of the University of Sydney.
As the public clamour now shows, the use of an "annoyance and inconvenience" provision, without qualification, is unacceptable law making causing injury not only to prospective protesters but also to pilgrims of good will, WYD supporters wanting public acceptance of the event, and hapless police having to implement an overbroad unworkable and unjust law.
The focus should be on dignified pilgrimage and peaceful protest under acceptable and workable laws which do not trample the civil liberties of those opposed to a partially taxpayer funded religious event which is spilling over into many public domains in Sydney.
The NSW regulation is a dreadful interference with civil liberties, and contrary to the spirit of Catholic social teaching on human rights.
As an Australian Catholic lawyer, I am saddened that the state has seen fit to curtail civil liberties further in this instance than they have for other significant international events hosted in Sydney. The rights of law abiding, peaceful protesters at WYD need to be “recognised, respected, co-ordinated, defended and promoted”, just as surely as the rights of the pilgrims.
The rights of free speech and assembly should not be curtailed only because visiting pilgrims might be annoyed or inconvenienced in public places.
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