FRENCH CJ, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
Matter No S172/2012
MAN HARON MONIS APPELLANT
AND
THE QUEEN & ANOR RESPONDENTS
Matter No S179/2012
AMIRAH DROUDIS APPELLANT
AND
THE QUEEN & ANOR RESPONDENTS
Monis v The Queen Droudis v The Queen
[2013] HCA 4
27 February 2013
S172/2012 & S179/2012
ORDER
In Matter No S172/2012:
Appeal dismissed.
In Matter No S179/2012:
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
G O'L Reynolds SC with J C Hewitt and G R Rubagotti for the appellant in S172/2012 (instructed by Aston Legal)
D M J Bennett QC with A K Flecknoe-Brown for the appellant in S179/2012 (instructed by CBD Criminal Defence Lawyers)
J V Agius SC with M G McHugh for the first respondent in both matters (instructed by Commonwealth Director of Public Prosecutions)
M G Sexton SC, Solicitor-General for the State of New South Wales with S E Pritchard for the second respondent in both matters (instructed by Crown Solicitor (NSW))
Interveners
T M Howe QC with R J Orr for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M G Hinton QC, Solicitor-General for the State of South Australia with L K Byers for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))
S G E McLeish SC, Solicitor-General for the State of Victoria with A D Pound for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
G R Donaldson SC, Solicitor-General for the State of Western Australia with J E Shaw for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Monis v The Queen Droudis v The Queen
Constitutional law – Implied freedom of communication on government and political matters – Criminal offence under s 471.12 of Criminal Code (Cth) for person to use postal or similar service in way that "reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive" – Appellants allegedly sent communications to relatives of Australian soldiers and officials killed in Afghanistan and Indonesia – Communications criticised deployment of Australian troops in Afghanistan in terms critical of deceased – Appellants charged with using and aiding and abetting use of postal service in way that reasonable persons would regard as offensive – Whether s 471.12 in its application to "offensive" uses of postal service effectively burdens implied freedom of political communication – Whether s 471.12 in its application to "offensive" uses of postal service is reasonably appropriate and adapted to legitimate end in manner compatible with system of representative and responsible government.
Statutes – Interpretation – Whether purpose of s 471.12 of Criminal Code (Cth) in its application to "offensive" uses…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Monis v The Queen [2013] HCA 4
Case
[2013] HCA 4
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard appeals from Mr Monis and Ms Droudis, who were charged under s 471.12 of the Criminal Code (Cth) for using a postal service in a way that reasonable persons would regard as offensive. The charges arose from letters sent to relatives of deceased Australian soldiers, which were critical of the soldiers and the deployment of Australian troops. The appellants sought to have the indictment quashed, arguing that s 471.12, as applied to "offensive" uses of the postal service, infringed the implied freedom of political communication guaranteed by the Australian Constitution.
The central legal issue before the High Court was whether s 471.12 of the Criminal Code, in its application to "offensive" uses of a postal service, effectively burdened the implied freedom of political communication. If it did, the court was required to determine whether the provision was reasonably appropriate and adapted to a legitimate end, in a manner compatible with the system of representative and responsible government. This involved considering the purpose of the provision and whether its scope was limited to prohibiting genuinely offensive uses of the postal service.
The High Court, affirming the decision of the Court of Criminal Appeal of New South Wales, concluded that s 471.12, as applied to offensive uses of the postal service, did not invalidate the provision. The Court found that the provision was reasonably appropriate and adapted to serve legitimate legislative ends, such as protecting individuals from the intrusion of offensive material into their homes and workplaces, and maintaining the integrity of the postal service. These purposes were considered compatible with the constitutional requirement for representative and responsible government.
In both matters before the Court, the appeals were dismissed.
Orders
Orders of the court
In Matter No S172/2012:
Appeal dismissed.
In Matter No S179/2012:
Appeal dismissed.
Background
Background to the litigation
The answer to the question is in the affirmative. That answer depends upon the proper interpretation, legal effect, operation and purpose of the impugned provision. It does not depend upon any opinion about or characterisation of the conduct said to have given rise to the charges. Nor does it involve any general conclusion about the extent of Commonwealth power to legislate in respect of such conduct.Factual and procedural background Mr Monis was charged on indictment in the District Court of New South Wales on 12 April 2011 with 13 offences against s 471.12 of the Code. Ms Droudis was charged on the same indictment with eight counts alleging that she aided and abetted the commission of offences against s 471.12 by Mr Monis. A typical count against Mr Monis alleged that he:"On about 27 November 2007 at Sydney, New South Wales, used a postal service, namely Australia Post, in a way that reasonable persons would regard as being, in all the circumstances, offensive by sending a letter dated 25 November 2007 addressed to Mr John Worsley, the father of Private Luke Worsley, an Australian Defence Force Soldier killed in action on 23 November 2007 … Contrary to section 471.12 of the Criminal Code 1995". Section 471.12 of the Code provides:"A person is guilty of an offence if:(a)the person uses a postal or similar service; and (b)the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.Penalty:Imprisonment for 2 years." The letters that were the subject of the charges were described by Bathurst CJ in the Court of Criminal Appeal of New South Wales[2] as "at one level ... critical of the involvement of the Australian Military in Afghanistan" but also as referring "to the deceased soldiers in a denigrating and derogatory fashion."[3][2]Monis v The Queen (2011) 256 FLR 28.[3](2011) 256 FLR 28 at 30 [4]. The appellants filed notices of motion in the District Court seeking to have the indictment quashed on the basis that s 471.12 was invalid because it infringed the constitutional implied freedom of political communication. On 18 April 2011, Tupman DCJ dismissed the motions. Appeals to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW)[4] were dismissed on 6 December 2011.[4]Section 5F of the Criminal Appeal Act 1912 (NSW) provides for appeals to the Court of Criminal Appeal against an interlocutory judgment or order given in proceedings to which the section applies. That includes proceedings for the prosecution of offenders on indictment in the Supreme Court or the District Court. On 22 June 2012 the appellants were granted special leave to appeal to this Court from the decision of the Court of Criminal Appeal. The appeals to the Court of Criminal Appeal and to this Court were concerned only with the validity of s 471.12 in so far as it relates to "offensive" uses of a postal service. A challenge to the harassment limb of s 471.12, which was argued in the District Court, was abandoned in the Court of Criminal Appeal and not pursued in this Court.The statutory framework
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
Her Honour concluded that s 471.12 is reasonably appropriate and adapted to serve legitimate legislative ends and that it does so in a manner compatible with the maintenance of the system of government prescribed by the Constitution. The provision thus met the criteria for validity enunciated by this Court in Lange v Australian Broadcasting Corporation[44] and the challenge to its validity failed.[44](1997) 189 CLR 520; [1997] HCA 25.The decision of the Court of Criminal Appeal There were three separate sets of reasons for judgment in the Court of Criminal Appeal. Bathurst CJ held that for the use of a postal service to be offensive within s 471.12 it had to be "calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances."[45] It would not be sufficient if the use would only hurt or wound the feelings of the recipient in the mind of a reasonable person[46]. Allsop P adopted the same limiting construction[47] and in the alternative proposed a further requirement, not adopted by Bathurst CJ, that the conduct must be such as to cause "real emotional or mental harm, distress or anguish" to the addressee[48]. That alternative, directed to the infliction of harm on the recipients of offensive communications, involved, with respect, an unjustifiable gloss on the meaning of "offensive". McClellan CJ at CL took a more open-textured approach, holding that[49]:"The section will only be breached if reasonable persons, being persons who are mindful of the robust nature of political debate in Australia and who have considered the accepted boundaries of that debate, would conclude that the particular use of the postal service is offensive."[45](2011) 256 FLR 28 at 39 [44].[46](2011) 256 FLR 28 at 39 [44].[47](2011) 256 FLR 28 at 48 [83].[48](2011) 256 FLR 28 at 50 [89].[49](2011) 256 FLR 28 at 54–55 [118]. Bathurst CJ and Allsop P correctly held that s 471.12 effectively burdened freedom of communication about government and political matters[50]. As Allsop P observed[51]:"Some political communications may, by their very nature, be objectively calculated or likely to cause or arouse significant anger, significant resentment, outrage, disgust or hatred."McClellan CJ at CL, although not expressly stating that he did so, appears to have reached a similar conclusion[52].[50](2011) 256 FLR 28 at 42 [56] per Bathurst CJ, 48–49 [84]–[85] per Allsop P.[51](2011) 256 FLR 28 at 48 [84].[52](2011) 256 FLR 28 at 53 [108]. Bathurst CJ identified the legislative purposes of s 471.12 as including the protection of persons from being subjected to material that is "offensive" in the sense in which his Honour had construed that term. His Honour inferred that the legislature considered such protection necessary having regard to the features of a postal service including:•That the post is generally sent to a person's home or business address and therefore personalised;•That material sent by post is often unable to be avoided in the ordinary course of things[53].Allsop P accepted a submission that the purpose of the provision was to protect "the integrity of the post"[54]. His Honour said[55]:"It is legitimate in the maintenance of an orderly, peaceful, civil and culturally diverse society such as Australia that services that bring communications into the homes and offices of people should not be such as to undermine or threaten a legitimate sense of safety or security of domain, and thus public confidence in such services."McClellan CJ at CL did not expressly identify the purpose of the provision. Each of the members of the Court of Criminal Appeal held that s 471.12, in its application to offensive uses of a postal service, was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the system of government prescribed by the Constitution[56] and was valid.[53](2011) 256 FLR 28 at 42–43 [59].[54](2011) 256 FLR 28 at 46 [78].[55](2011) 256 FLR 28 at 46 [78].[56](2011) 256 FLR 28 at 44 [67] per Bathurst CJ, 50 [91] per Allsop P, 55 [119] per McClellan CJ at CL.