Principle of Legality- Was the decision to rule Cassandra's protest as 'hostile protest activity' ultra vires the relevant provisions of the Act? (This is not my question- This is just the practice question I have attempted) My question will be below the case study and made-up statute)

Cassandra Rendell is a climate activist, who recently organised a protest covered by the Commonwealth legislation below. As organiser, she directed others to undertake various actions, and she has no issue with the copping any consequences if they turn out to be within power. She organised a recent 'community blockade' protesting a mining development in Western Australia. This protest has attracted media and controversy due to its reliance on social media and its 'academy' strategy. Young people from major cities are invited to stay in the local community and participate in the protest. This has been dubbed a 'Schoolies Protest Academy' which seeks to bring together local communities and climate activities in common cause. It has garnered enormous public profile as a result, and actively harnesses this through performance protest.

Despite the term 'blockade' featuring, the protest, by and large, is conducted with good humour with physical access still being preserved to the site. It brings together young and old, who regularly sing and host classes on protest during the day. There have been no arrests for disorder or violence.The protests do seek to slow entrance and exit to the site by forming 'caravans of tourists' periodically during the day. These are cyclists who pedal rather slowly down the narrow roads leading to the site. Large trucks and other vehicles struggle to pass them out, leading to some verbal exchanges and frustrations.

Such a caravan was operating on the day when Cassandra was made subject to the legislation. At the site entrance the protestors had also created a pool of stained water (the large surface puddle was pre-existing). This temporarily stains the trucks' wheels green or other colours, but washes off naturally in time, or in the rain or after a gentle hosing. It does however permit the capturing of social media videos of vehicles wading through 'blood' or 'greenwashing'. These social media videos never show driver's faces or identifiable details. Upon entering the site, protestors would chant directly at arriving or departing staff, site visitors, or truck drivers whoever was stationary. Accompanying chants include:

"no ifs no buts, no peace until this site shuts"

"You can sell your soul, but there is no Planet B!"

The company argue that the protestors' incessant presence is "complicating the enjoyment of the site access and boundary areas by staff".It argues that a hostile and provocative environment for workers is the motivator of the activity. Staff's only rest and recreation areas lie close to and within sight of the relevant site entrance, and they are often delayed coming home from work.

Cassandra has recently been informed she is being made subject to a penalty and social security review under the Act.The decision letter states that the treatment of site staff had the required impacts upon individuals carrying out their lawful business and accessing the site. The letter claims the protest activity falls within the Act, as it was about targeting mining staff and visitors rather than protesting. While the road were public, and no criminal offence had been committed, the protest was clearly aimed at disrupting the effective operation of the listed site. The letter states that concerns for staff's wellbeing are 'genuinely held' and they have a right not to be targeted for doing a day's work.

Note:

You may assume that the law has been found constitutional by the High Court. In its (fictional) ruling, the High Court found that: "carefully read in the light of the principle of legality, and confined by reference to its purposes, the order regime as a whole is constitutionally permissible and does not unjustifiable impair the implied freedom of political communication. Its case by case use will be supervised by the courts in the light of the principle of legality, which will operate to ensure interferences with right to freedom of expression are narrowly read.'

You may assume Cassandra is legally liable for all actions undertaken by herself and fellow protestors she directed - that, as organiser, it all effectively counts as activity directed by and thus undertaken by her effectively. (I avoided including that provision in the statutory provisions as it is secondary and I didn't want something so technical cluttering things up).

Statute

Division III: Clamping Down on Direct Action Protest

Section 23: Object of this Division

The objects of this division are:

1. To address the disruption caused by performative protests[RG1]which beset[RG2]the ordinary functioning of government or corporate entities.
2. Preserve [RG3]robust, respectful protest aimed at promoting awareness of the impacts of climate change.

Section 24: Hostile Protest Activity: Definition

(1) Hostile protest[RG4]activity refers to protests and related activity which due to its confrontational nature[RG5] results in or is likely to create serious disruption to lawful activities, access to sites and efficient operations.

(2) For the avoidance of doubt, any protest which deliberately blockades or creates an oppressive atmosphere outside private business premises is intended to be covered by subsection (1).[RG6]

25. Consequential orders and penalties

(1)Engaging in conduct prohibited under section 24 may result in an apprehended breach order[RG7]being made against the person.

(2)An apprehended breach order may prescribe time limited movement restrictions on an individual to ensure they do not disrupt the businesses or sectors targeted by the original protest.

(3)A failure to comply with an apprehended breach order results in a civil penalty of $5,000, and an extension of the order for an additional year.

(4)Where an individual who breaches section 24 is on social security, the Deputy Secretary of the Department may order a review of their mutual obligations. This will review any evidence that:

1. Whether the individual has been properly carrying out their mutual obligations to search and make themselves available for work.
2. Whether the person has been refusing legitimate job offers on an improper basis.[1]

[1] Just in case one thinks this would never happen!: Peter Dutton suggests climate protesters should lose welfare | news.com.au Australia's leading news site

[RG1]A performative protest is a type of protest where the actions and behaviors of the protesters are intended to convey a symbolic message or make a statement rather than directly achieving a specific practical outcome.

Performative activism- for money not for the cause

[RG2]Trouble, harrass

[RG3]Not intended to restrict

[RG4]The definition of a "hostile protest" is not inherently ambiguous, but the interpretation of the term could vary depending on context and individual perspectives. "Hostile protest" generally refers to a protest characterized by aggressive or confrontational behavior, where protesters may engage in acts of violence, destruction of property, or other disruptive actions that pose a threat to public safety or property.

However, the term "hostile" is somewhat subjective, and what one person considers hostile behavior in a protest, another may see as justified resistance or a legitimate expression of anger or frustration. Therefore, while the term itself is not inherently ambiguous, its application and interpretation can be influenced by individual viewpoints and the specific circumstances surrounding a protest.

[RG5] The phrase "confrontational nature" can be somewhat ambiguous because it doesn't provide specific details about the type or degree of confrontation involved. It generally implies that a protest or protestor is inclined toward direct and assertive, possibly aggressive, behavior. However, the level of confrontation can vary widely, and what one person considers confrontational, another may see as assertive but non-violent.

To reduce ambiguity, it's often helpful to provide more context or specific examples when describing a protest as having a confrontational nature. This can clarify whether the confrontation involves verbal disagreements, physical altercations, property damage, or other actions that are confrontational in nature.

1. [RG6]"Blockades": While the term "blockades" generally means physically obstructing access to a place, the extent of what constitutes a blockade can vary. It might be helpful to define what actions or behaviors are considered blockades in this context to avoid any potential ambiguity.
2. "Creates an oppressive atmosphere": The phrase "oppressive atmosphere" is somewhat subjective and open to interpretation. It's not clear what specific actions or behaviors are encompassed by this term. Providing examples or a more detailed explanation of what constitutes an "oppressive atmosphere" would help make the statement less ambiguous.
3. "Private business premises": The term "private business premises" is relatively clear, but it's essential to define or specify what qualifies as such to avoid disputes over whether a particular location falls under this category.

[RG7]Restraining order, apprehended violence order to protect business from harm or disruption.

Please highlight how the words "confrontational nature" and "disruption" "blockades" and "oppressive atmosphere" are ambiguous and use the coco v the queen case and evans v nsw