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International Law as an Influence on the Development of the Common Law: Evans v. State of New South Wales

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The Full Federal Court in Evans v. State of New South Wales [2008] FCAFC 130 (Evans) declared that the ‘causing annoyance’ limb of cl 7(1)(b) of the World Youth Day Regulation 2008 was invalid, but found that the ‘causing inconvenience’ limb of cl 7(1)(b) was not invalid. The judgment has three interesting aspects.

Firstly, the judgment, in line with recent High Court decisions, applied the ‘principle of legality’ as an objective reformulation of the presumption against the infringement of fundamental principles such as common law rights and freedoms.

Secondly, the judgment stated that ‘freedom of religious belief and expression’ was ‘another important freedom generally accepted in Australian society’, an apparent clear statement that the freedom of religious belief and expression was among the common law rights and freedoms to which the principle of legality applied.

Thirdly, the Evans decision was the first recognition of the common law freedom of religious belief and expression by an Australian court which supported the freedom by reference to international law. This seems to be the first application by an Australian Court of Justice Brennan’s statement in Mabo v Queensland No 2(1992) 175 CLR 1 at 42 ; (1992) 107 ALR 1, 29 that ‘international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights’.

The Evans decision shows that a more open minded approach to the application of international law would enrich Australian jurisprudence.

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