Monis v The Queen & Anor; Droudis v The Queen
[2012] HCATrans 241
[2012] HCATrans 241
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Canberra No S172 of 2012
B e t w e e n -
MAN HARON MONIS
Appellant
and
THE QUEEN
First Respondent
THE ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES
Second Respondent
Office of the Registry
Canberra No S179 of 2012
B e t w e e n -
AMIRAH DROUDIS
Appellant
and
THE QUEEN
First Respondent
ATTORNEY‑GENERAL FOR THE STATE OF NEW SOUTH WALES
Second Respondent
FRENCH CJ
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 4 OCTOBER 2012, AT 10.01 AM
(Continued from 3/10/12)
Copyright in the High Court of Australia
____________________
FRENCH CJ: Yes, Mr Reynolds.
MR REYNOLDS: Thank you, Chief Justice. Your Honour, just before the adjournment last night your Honours, Justices Hayne and Kiefel, asked to have a look at a couple of issues. I would like to attempt to deal with those two matters now and also to come back to aspects of them as part of the argument. Your Honour Justice Hayne referred to your Honours’ judgment – this is in transcript at around line 1485 – referred to paragraph 189 of your Honours’ reasons in Coleman v Power and asked us to have a look at the respects in which the law:
either civilly or criminally [regulates] private interaction between people in the form of words.
That picks up not only what your Honour said with Justice Gummow at paragraph 189 but also if I can give your Honours another reference, an important part of your Honour Justice Heydon’s reasoning at paragraph 322, that is about the private nature of the communication.
To answer your Honour Justice Hayne’s question directly, so far as the civil law is concerned can I note the following, first of all the tort referred to by your Honour yesterday, generally known as the tort in Wilkinson v Downton. Secondly, there is the law of defamation but with a very large qualification and that is that if there is a communication via the mail between a sender and a recipient then normally – I withdraw that – that will not amount to an actionable defamation of the recipient and therefore, except in extremely exceptional circumstances which we perhaps do not need to go into, there would not be any defamation action available for the recipient.
Thirdly, there is the fraud and various variations of it; fourthly, negligent advice causing loss; fifthly, the misleading and deceptive conduct under various statutes; sixthly, the tort of intimidation; and seventhly, torts in the nature of conspiracy. That is the list that we have compiled in that respect.
So far as crimes are concerned: first of all, crimes involving threats, menace or intimidation, which we perhaps do not need to specify with particularity; secondly, fraud offences; thirdly, criminal libel, but again with the caveat I mentioned before in relation to defamation; fourthly, obscenity and such like; fifthly, crimes of conspiracy which involve a conspiracy to commit another crime; sixthly, incitement crimes, incitement to commit other crimes; and finally, perhaps also the crime of sedition.
It may be that that list is to some degree imperfect and no doubt my learned friends will let your Honours know if it is, but can I just raise this aspect of what your Honour Justice Hayne has raised with me? The effect of that is that it raises a relevant factor. Your Honours see in paragraph 3.12 we have tried to formulate various factors that are relevant to the second limb. If one goes to paragraph (xv), we have said that the provision goes well beyond traditional common law restrictions in the areas of contempt, defamation, obscenity.
The effect of what your Honour Justice Hayne has put to me is to point up a deficiency in the way that I have characterised that relevant factor, because that factor can be improved, I would submit, in my client’s favour by re‑characterising it in this way, that the law – that is the proscription in this statutory provision – goes well beyond the traditional common law and statutory restrictions, both civil and criminal, on private communications.
That is a more exact way of putting the point we put with too much generality in (xv), and as your Honours know looking back over the case law, particularly to cases like Nationwide News v Wills which we will be coming to later on today, that is one of the matters which this Court has traditionally looked to in determining whether or not the second limb is infringed by the law.
CRENNAN J: What do you say about the history of legislation in respect of sending articles through the post by reference to the epithet “offensive”? I appreciate there was an alteration so the focus became a focus upon use of the postal services, but there is a very long history of sanctioning, as criminal conduct, use of the postal facilities for the purposes of sending articles.
MR REYNOLDS: There is no doubt about that at all. We have referred in paragraphs (xiii) and (xiv) to those two points and this is really a variation of the point that I have just been discussing in relation to what your Honour Justice Hayne raised with me. If one focuses with more particularity, not just at statutory restrictions of private communications, but with even more particularity to statutory or other restrictions in relation to the mail, then again the same point can be made, namely that this provision (a) goes much further than the original restrictions that your Honours will have seen in the predecessor ‑ ‑ ‑
CRENNAN J: Some might say it is more qualified, by reference to the reasonable person. The restriction is more qualified.
MR REYNOLDS: The word “offensive” as a matter of its ordinary meaning would import reasonable persons, in any event. But when your Honours look back, for example, to the legislation annexed to Mr Agius’ submissions your Honours will see that it talks about things like obscenity, talks about criminal libel. It talks about things that are grossly offensive. We will be taking your Honours later to some statutory provisions which Mr Bennett’s junior, Mr Flecknoe‑Brown, has prepared in relation to similar statutory provisions overseas.
But the short point is that in relation to these predecessor provisions in the Commonwealth, and also in relation to jurisdictions overseas, this provision goes, we would submit, a fair way beyond what those provisions do. So another way of putting it is to say that there are less drastic means available. Another variation of that argument is to say that because there are less drastic means available as utilised both in this country and overseas that the provision is not reasonably appropriate and adapted to its end.
Now, they all come back to the same thing and what your Honour Justice Crennan is raising with me is really a more narrow particularisation of the point that Justice Hayne has made, namely, that we are dealing here not just with private communications but a particular species of private communication.
KIEFEL J: The Criminal Code also makes it an offence to use carriage services, that is telecommunication services – section 474.17. So this case may have other wider ramifications.
MR REYNOLDS: Yes, your Honour.
KIEFEL J: I notice that also section 473.4 has a provision on how one determines whether material is offensive.
MR REYNOLDS: Yes, there is some further particularisation, as I recall, in that provision which is not present in the one that we are dealing with.
KIEFEL J: But, here, as Justice Crennan reminds, the section has a test of the reasonable person. To an extent that must import a notion of proportionality, must it not?
MR REYNOLDS: This is something I will be coming to in much greater detail later on. If your Honour would have me deal with it now, I can.
KIEFEL J: I do not need to take you out of turn.
MR REYNOLDS: I appreciate that, your Honour. The short answer is that we say that the insertion of those words do not have that effect and I will be dealing with that proposition at some length because, as your Honour implies, that is a point that is taken against the argument that I am putting. So far as the question your Honour Justice Kiefel asked me yesterday - this is at around line 1470 of the transcript – and the effect of the question was in substance, are you putting that there is an illegitimate end or are you saying there is a legitimate end and that the law is not reasonably appropriate and adapted, or are you putting it in some other way?
Your Honour, so far as legitimate or illegitimate end is concerned, we have a situation where there are different views in the Court of Criminal Appeal about what the end is. If your Honours adopt the end stated by the Chief Justice, Chief Justice Bathurst, we say that that is illegitimate for the reason that your Honour Justice Hayne and Justice Gummow said at paragraph 199 of Coleman v Power, namely, that the end is civility of discourse.
If, on the other hand, your Honours were to adopt the ends referred to, for example, by Justice Allsop, then we would accept that those ends are legitimate but that the provision is not reasonably appropriate and adapted to achieve that end - now, I am going to be dealing with that in probably a couple of minutes - but we would also say are more generally by reference to the test stated most recently in the Wotton Case - that is Wotton v Queensland (2012) 86 ALJR 246 - the test restated at paragraph [25], that is, whether or not the provision is compatible with the implied freedom. So the short answer, in effect, to your Honour is we probably put it about three different ways depending on how one characterises the relevant end.
Your Honours, I think I have really dealt with what I needed to say in relation to my learned friend, Mr Agius’ notice of contention on the first limb. So what I would like to do now is – this is section 3 of my synopsis of argument, the heading “Lange: Second Limb” ‑ ‑ ‑
HAYNE J: Just before you depart from the first limb and what is said against you about the application of the first limb, I think a part, perhaps a large part, of the proposition put against you is found at paragraphs 43 and 44 of the first respondent’s submissions and the particular point that is made against you is made by reference to the reasons of Chief Justice Mason in ACTV where his Honour draws a distinction “between restrictions on communication which target ideas or information” – one category – “and those which restrict an activity or mode of communication – second category – and it is asserted in paragraph 44 that this is of the second class. What do you say as to that?
MR REYNOLDS: The primary submission we make in relation to that is that, although obviously Chief Justice Mason was talking there at a time prior to the formulation of what we call the first and second limbs, that this is a second limb inquiry, not a first limb style inquiry.
HAYNE J: Be that so or be it not so, what do you say about classing this in the taxonomy identified by Chief Justice Mason – let us leave aside for the moment the relevance or utility of it – is it right to say that this is within the second of the categories his Honour identifies?
MR REYNOLDS: We submit no. It also targets ‑ ‑ ‑
HAYNE J: Why not?
MR REYNOLDS: ‑ ‑ ‑ a particular form of idea or information, namely one that is offensive and going back to the decision in Lange, and I took your Honours to the passage yesterday. It says if there is a burden placed by the law of defamation on political speech it is a burden on political communication, so to say that something is defamatory places a burden on political communication. I say, well to proscribe something because it is offensive also puts an almost identical burden on political communication.
HAYNE J: It occurred to me and this may be a matter that Mr Agius will have to deal with, that a possible point of view is that by identifying the proscribed content by reference to the content of the communication, namely its description as offensive in this case, that that rather more naturally falls into the first of the two classes identified by Chief Justice Mason. But secondly, and more relevantly, if that is so what, if anything, does that say about the quantitative argument advanced against you in paragraph 43 because the quantitative argument in 43, to the extent there is any burden it can only be indirect and light, seems to proceed from the premise in fact identified subsequently in paragraph 44 and if the premise is wrong then the conclusion may be wrong.
MR REYNOLDS: Yes.
HAYNE J: Can I put it to you this way? Characterising the burden as light may be a proposition that has to grapple with whether the impugned law is a law which, in fact, regulates communication and regulates content of communication and that the whole notion of light burden, trivial burden, et cetera, is something that follows from a premise that has to be identified with some care and with some precision.
MR REYNOLDS: Yes. I suppose what I come back to is two propositions. One it will be obvious to your Honour Justice Hayne, and I hope also to the other Justices, that we seek to wrap ourselves in the mantle of both Coleman v Power and the decision in Lange and, more particularly, the decision in Lange because as I took your Honours to the relevant passage yesterday, when the first limb inquiry is dealt with in that case the answer given on the first limb was that there was an effective burden placed on political communication because the law of defamation hits defamatory content, so that I am seeking to bring myself within that holding.
But the alternative way that I would put it is again that questions of degree, as to the precise degree of lightness or otherwise, are matters which can be taken into account as other factors on whether or not the law is reasonably appropriate and adapted. Obviously, the lighter the burden then the greater the difficulty it is for me to show that the law is not reasonably appropriate and adapted. On the other hand, the heavier the burden then it becomes, to that extent, easier for me. I am sorry, in a way I have interrupted your Honour.
KIEFEL J: No. It is, as you say, if you are going to rely upon Lange, you have to deal with whether the effect upon the freedom is an undue burden. Those words “undue burden” appear four or five times in that decision. It is a matter which has to be addressed before you consider whether or not the offence, as stated, is a proportionate response to the purpose of the statute.
MR REYNOLDS: Yes, well, again for the reasons that we have stated under the heading “relevant factors” - that is in paragraph 3.12 - we submit that whether one characterises the inquiry as whether it is compatible with the implied freedom, whether it is proportional, whether it is reasonably appropriate and adapted, then all of these matters that we have referred to with the modification that I mentioned first up this morning adopting what your Honour Justice Hayne put to me.
FRENCH CJ: The mode of communication mentioned in ACTV to which Justice Hayne directed your attention – I suppose at one level one can simply say this is a law which deals with a mode of communication defined by reference to postal services.
MR REYNOLDS: Quite.
FRENCH CJ: One might go a step further and say this is a law which is concerned with a mode of communication in the sense of communication irrespective of content which is objectively offensive. That might be a strained construction.
CRENNAN J: You might want to look at section 471.12(b) in the context of that question.
MR REYNOLDS: One of the aspects, of course, about paragraph (b) is that it does direct us to content and that, your Honours will have seen, is one of the aspects that we point to. This is (xviii) under paragraph 3.12. The nature of the content is regulated by this particular proscription.
HAYNE J: The regulation of content is identified by reference to its expected effect by recipient, judged objectively.
MR REYNOLDS: Yes, your Honour. If it is convenient I will move to the second limb. I think I mentioned that the two‑limb test had been recently dealt with at paragraph [25] of the decision in Wotton which I do not really need to take your Honours back to but it picked up an earlier statement recently in Hogan v Hinch (2011) 243 CLR 506, which I do not need to take your Honours to.
The point though that we make initially, as your Honours can see from our note of argument, is that there is not any challenge by any of the parties or the interveners to the Lange test, nor, going back to a matter that was raised in argument in the Corneloup Case, is there any challenge to the proposition that we have referred to in our submissions in‑chief at page 5, footnote 8, and that is the notion of the appropriate test, and in Coleman v Power at the paragraphs we have referred to in that footnote, a majority rejected the submission that the test should be weakened by requiring only that the law in question be reasonably capable of being seen as appropriate and adapted. That is not challenged either.
If one comes to the formulation of “reasonably appropriate and adapted” and a legitimate end, one of the things that I would suggest would not have escaped your Honours’ notice is that there have been four different approaches by the judges below to that, and in our synopsis of argument at paragraph 3.3, we give the relevant references to the various ways that the legitimate end has been formulated and why it is said to be reasonably appropriate and adapted.
The relevant portion of our submissions in‑chief is from paragraphs 31 onwards, and your Honours will have seen that there are these four different formulations and we have dealt with those formulations, first of all dealing with the primary judge at paragraphs 31 to 32. Her Honour talked in very general terms about “protecting the integrity of the post” – this is paragraph 31 – preventing “breaches of the peace” and protecting the recipient “from harm” and we then quoted the submissions which we made in that regard before the Court of Criminal Appeal. The effect of those submissions, in short, is that if those are the relevant purposes of the law then it is not reasonably appropriate and adapted to achieve those ends for the reasons that we have set out at paragraph 32.
Chief Justice Bathurst adopted a quite different approach and that is set out at paragraph 34 of our submissions, and paragraphs 58 to 59. His Honour, it is fair to say, did not endorse at all the approach taken by the primary judge and in particular he said that there were difficulties with the notion of the integrity of the post. He said he was unable to accept that conclusion for the reasons that he gave. His alternative formulation of the relevant purpose is to be found – this is in our submissions at paragraph 34 in his third proposition, that is:
to protect persons from being subjected to material that is offensive in the sense I have described –
Now, we have said in our response – this is at paragraph 38 – that whilst one can accept that the law is reasonably appropriate and adapted to achieve that end the difficulty is that if the purpose is formulated in that narrow way it runs headlong into the decision in Coleman v Power and particularly the judgment of your Honour Justice Hayne and Justice Gummow at paragraph 199, that is that one is formulating the purpose “in terms of ensuring the civility of discourse”.
So we have in those two approaches in a nutshell the two main ways the judges have approached it either by characterising the purpose of the law very narrowly, as Chief Justice Bathurst did, in which case we say, getting back to the matter I raised with your Honour Justice Kiefel earlier on, that is an illegitimate end and to put it another way, it is incompatible with the implied freedom for the reasons your Honour Justice Hayne said at paragraph 199 of Coleman v Power.
If one, on the other hand, wants to take a much broader approach to what the purposes of the law are then we submit that it is not reasonably appropriate and adapted to achieve those ends for the reasons we have set out there. Now, I will not take up time because we have dealt ‑ ‑ ‑
FRENCH CJ: I am sorry; can I just make one point? It is possible to commit this offence by simply engaging a private courier service to deliver a communication that falls within the description in 471.12 and look at the definition of “postal or similar service” in 470.1.
MR REYNOLDS: The definition in the Chief Justice’s judgment ‑ ‑ ‑
FRENCH CJ: No, I am looking at 470.1 of the Code.
MR REYNOLDS: Yes. As I say, I think that is quoted earlier on in the Chief Justice’s judgment but the point that we would make about that is that this is not a proscription just aimed at the mail. It also deals with other like services.
FRENCH CJ: It is not limited in any sense to the provision of any statutory or public service. Obviously, it covers all manner of private providers.
MR REYNOLDS: No. We rely on that because obviously the broader the proscription the more difficult it will be in order to say that the proscription is compatible with the implied freedom or reasonably appropriate and adapted because even if a citizen wishes to avoid using the mail, if he uses some other like service then he or she will be again caught by the proscription.
HAYNE J: But not if he or she hand delivers it?
MR REYNOLDS: Quite.
FRENCH CJ: Yes, gets on a bicycle and rides around and puts it in the letterbox.
HAYNE J: Or has a likeminded adherent deliver it.
MR REYNOLDS: Yes, exactly. At 3.3 of our submissions we have summarised the relevant purpose or end adopted by each of the four Judges and why they say it is reasonable appropriate and adapted. They each take slightly different approaches and we have tried to formulate in the references given there to our submissions the difficulties with each of those approaches. But the short point is simply this. If one goes very narrow or very narrowly, as the Chief Justice did, it will not be a legitimate end, we submit. If one goes much more broadly, which is probably the preferable approach, then we submit it is not reasonably appropriate and adapted for the various reasons we have set out, in particular, at paragraph 3.12 of our synopsis.
It is interesting that the Crown seems to adopt – that is at paragraph 35 of their submissions – the approach of the primary judge, which I have just dealt with, whereas the State of New South Wales goes quite the other way and in paragraph 32 of their submissions they adopt Chief Justice Bathurst’s approach.
Now, if we move from the notion of “reasonably appropriate and adapted” to a legitimate end more broadly to the decisions that are relevant on the second limb, your Honours will see from paragraph 3.8 of our synopsis that we summarise the passages in Coleman v Power which are referred to in our reply at paragraph 9 which, we say, are authority that is in Coleman v Power for the proposition that a proscription on insulting or offensive words simpliciter offends the second limb.
Now, I will not take your Honours back to those various references that are at paragraph 3.8 of our synopsis except briefly to take your Honours back to paragraph 199 of Coleman v Power because I submit that that particular passage is quite central, and your Honours will have seen this in our submissions, to the resolution of the particular issue before your Honours in this case.
I assume your Honours will have read the text of section 199, but the effect of what your Honour Justice Hayne and Justice Gummow were saying there is that if one had construed the provision that talked about insulting words in this case as calculated to hurt the feelings of a person or similar, then the difficulty with that construction is that it would run head long into what your Honour described as – this is halfway down the paragraph:
The very basis of the decision in Lange –
What I would suggest your Honour meant by that is, as your Honour says in the following sentence, if one looks at what Lange actually decided it dealt with the notion of defamatory, which is to all intents and purposes, identical with notions of offensive and insulting, and it said that without a defence of reasonable discussion of political matter a law did not comply with the implied freedom, or as your Honour puts it in the last sentence there talked about the “civil law of defamation” and whether it complied with the implied freedom.
So if one has a proscription on either insulting words simpliciter or on offensive words simpliciter, then the holding in Lange indicates that the law will not comply with the second limb. Taking my lead in particular from that paragraph, can I take your Honours back briefly to the decision in Lange (1997) 189 CLR 520. I, perhaps, do not need, in the light of the references yesterday, to take your Honours in detail to the text of the judgment, but the way I would prefer to deal with it is simply to summarise the effect of the holding particularly as it is so well known.
As we discussed yesterday the case dealt with the New South Wales position which is an amalgam of common law and statute. The way the law of defamation worked at that time in New South Wales was that there was a proscription, in effect, in civil law terms of material that is defamatory to a reasonable person in all the circumstances. There were the traditional defences of truth, of duty and interest, qualified privilege, of comment, of absolute privilege, of fair report of court proceedings and otherwise, but the effect of the holding is that the absence – if there was an absence from those defences of a defence of reasonable discussion of political matter then it would mean that the law in that State did not conform with the implied freedom.
So that is the holding but it is a little bit complicated in one sense by the fact that it is this somewhat queer amalgam of both common law and statute. Can I take, perhaps, a slightly easier example for discussion purposes, a statute which is in the form of a code such as, I am sure your Honour Justice Kiefel remembers from years ago in the State of Queensland.
If one had a similar state of the law in a code which created a right to damages for the publication of matter that was defamatory to a reasonable person in all the circumstances and it then created the same defences that we have just talked about – duty and interest, qualified privilege, comment, absolute privilege, fair report and what have you and the statute then said “And there are no other defences because it is a code”. Now, I submit, that in the light of the decision of this Court in Lange, that statute would be invalid. The reason is that it excludes the defence found by this Court in Lange – that is, reasonable discussion of political matter.
HAYNE J: But what that example may not be pointing to with sufficient clarity is that the operation of Lange which is in issue in this case is an operation as a limitation on Commonwealth and State legislative power. Now, I know that the example you gave was one which you said led to invalidity. Lange concerned the development of the common law of defamation. Coleman v Power points out that there is a limitation on power. The question at issue in this case is one about validity and validity of a law – whether it is made within power.
MR REYNOLDS: Quite, and what I am attempting to do is, for the sake of simplicity of argumentation, to convert the holding in Lange which said just as a statute must conform to the implied freedom, so must the common law. I am saying yes, we are dealing here with a statute, let us convert the holding in Lange into purely statutory form and have a look at what it says in that form. It certainly says that if one has a law that says there will be a civil right of damages for the publication of defamatory material of a reasonable person in all the circumstances, and there are no defences, then it would be abundantly clear using that example that that provision would offend the Lange principle.
Your Honours can see where this is going because if one takes a civil law provision that talks about something being defamatory to a reasonable person in the circumstances of publication, then that is very, very close to the provision that your Honours have here. Really, the only difference in substance, if there is one, is that this provision talks about the word “offensive” rather than the word “defamatory”.
My point is that in short, the actual holding in Lange, which a majority of Judges pointed to in Coleman v Power – that is, the holding in relation in that case to the common law and statute, but here of course we are dealing only with a statutory provision – the holding, in effect, dictates that this provision must be found to conflict, that is, not be compatible with, the implied freedom, and that it fails the second test in Lange because if one focuses on the difference between the words “offensive” and “defamatory”, I submit that for the purposes of examination of the implied freedom there is no difference.
If one were to take any of the standard works on the law of defamation and go through every imputation that has ever been considered, I would submit one would – and there are thousands, perhaps tens of thousands of them – it would be very difficult to find an example of a defamatory imputation which was not offensive. It may be that the word “offensive” is slightly wider, as I discussed it in exchange with your Honour Justice Kiefel yesterday, but if it is slightly wider, that only helps me. In the law of defamation, one talks about an ordinary reasonable person as the test of both what meanings are conveyed and whether it is defamatory.
Likewise, one looks at the circumstances of publication in order to determine whether something is defamatory, whether the plaintiff has been identified and looks at the context of the particular publication, just as one looks to all relevant circumstances here as to whether or not the publication is offensive. Here, there are in comparison with the law of defamation no defences, but as I have said, the crucial point is there is no defence equivalent to the Lange defence, that is, reasonable discussion of political matter.
BELL J: It is not plain to me that it is apt to endeavour, as you persistently do, to draw a comparison between the law of defamation and the provision of a criminal offence requiring as it does the Crown to establish beyond reasonable doubt that a person has used a postal service in a way that reasonable persons would regard as being in all the circumstances offensive, particularly when one has regard to the approach adopted by the Chief Justice and in a somewhat different respect by the other members of the court in the Court of Criminal Appeal.
In other words, to suggest that there is no difference or indeed that proof beyond reasonable doubt of the offence imposes some lesser burden than establishment on the civil standard that an imputation is defamatory just does not seem to me to be particularly helpful in this context, if I may say so.
MR REYNOLDS: Your Honour, if one goes back to the various elements of this offence I say that, although I cannot say that there is an overlap to the extent of 100 per cent between the law of defamation and the statute, that it is almost the same, and whether one characterises – whether one focuses on first of all “offensive” as opposed to “defamatory”, no meaningful distinction, I submit, can be made by my learned friends in that regard between the law of defamation and this provision.
Likewise, the test of whether something is offensive under this statute is determined by the test of the ordinary reasonable person just as, as your Honour well knows, the law of defamation looks on whether a meaning is conveyed and whether it is defamatory to the views of an ordinary reasonable person. Likewise – and I will not go on ad nauseam, your Honour, it goes also to the circumstances of publication, on identity, on whether it is defamatory, on what the meaning is, and as part of the context of publication.
There is obviously the difference of onus of proof and that is the sort of fine distinction which I submit the respondents are driven to, is trying to draw distinctions between “offensive” and “defamatory”, between the criminal and the civil standard of proof, and such like. But my submission is that there is not in substance really any distinction that can be drawn.
FRENCH CJ: You are coming down to the proposition, are you not, that a statute which imposes an objective criterion of liability based on content and mode of a communication from one person to another is subject to the limitations imposed by the implied but qualified freedom of political communication, the qualification being second limb.
MR REYNOLDS: Quite, and we keep coming back to the centrality of Lange. That is a theme in the four or five Justices in Coleman v Power, is the importance of that decision, not only in terms of its formulation of a first and second limb, but also because it provides an application of those two limbs to a particular situation which keys us in for the purposes of making submissions and, with respect, your Honours, also to the level at which the implied freedom cuts in. I am sorry, I feel like even though I have not, I think, cut your Honour Justice Bell off, that your Honour wants to say something and that I am stopping your Honour.
BELL J: Not at all. I think you understand, Mr Reynolds, I see something of a distinction between provision of a criminal offence and the submissions to the extent that are based on analogies with the law of defamation.
MR REYNOLDS: My learned friends would say your Honour is in very good company. But, we submit, that although one can ‑ ‑ ‑
HAYNE J: Because the analogy with the law of defamation obscures the fact that we are in the realm of legislative power and that is the question – not a question of how the law of defamation works, Mr Reynolds.
MR REYNOLDS: Well, your Honour, I have tried to translate the holding in Lange back to a statutory situation and I submit that although the case is talking about both common law and statute that the passages in Lange say that, in effect, the same rules apply to the common law and to statute.
HAYNE J: We are in the realm of a restraint on legislative power. We are in a realm, therefore, that is well trodden. It has been trodden, for example, in Wurridjal 237 CLR 309 at 384, paragraph 176; Burke v State Bank 170 CLR 276 at 285; Work Choices 229 CLR 1 at 217, paragraphs 219 to220; Schmidt, the 51(xxxi) case, 105 CLR 361 at 371 to 372. That is the realm of discourse – power. Can we get off defamation?
MR REYNOLDS: I cannot possibly assert that this is not a case about limitation on legislative power. The point that I make is that the decision in Lange says, in terms, that the implied freedom has relevantly two effects. The first is that apropos statutes, the consequence of inconsistency between the implied freedom and the statute is invalidity. In relation to the common law, the consequence of the application of the implied freedom to the common law is that it must conform.
If one recalibrates the holding the Lange back to a provision in purely statutory form I submit that it is authority against my friends. But, also, I would like to refer to your Honours briefly to the decision – the very first decision on the implied freedom – namely, Nationwide News v Wills (1992) 177 CLR 1 which, picking up what your Honour Justice Hayne has said to me, is a case about limitation on legislative power. Perhaps, I would prefer not to go back and look in detail at the text of the judgments in this case because, in one sense, it is easier to talk about the case without going back to the text.
The provision that was in issue in that case was a fairly simple one. It talked about bringing the Industrial Relations Commission or a member thereof into disrepute. There were no defences of the kind that exists, for example, in the law of scandalising the court ‑ ‑ ‑
FRENCH CJ: Now, Mr Reynolds, perhaps you can take us straight to the proposition you want to extract from this first, so we can understand why it is helpful.
MR REYNOLDS: Your Honours will see that the provision – this is in the headnote – talked about creating an offence and it is in statutory form:
to use words “calculated . . . to bring a member of the (Industrial Relations) Commission or the commission into disrepute”.
FRENCH CJ: I think we are familiar with the provision.
MR REYNOLDS: Now, three of the Justices, Justices Mason, McHugh ‑ ‑ ‑
FRENCH CJ: I am sorry, Mr Reynolds, could you answer my question and that is what is the proposition you are extracting from this that, as it were, differs from anything you have put to us so far?
MR REYNOLDS: The proposition is this that this case stands as authority for a proposition and I will adapt the wording of the statute ever so slightly, that publication of matter – offensive matter – or something which is offensive of, in relation to a member of the Industrial Relations Commission or the Commission itself, without any defence such as truth, fair comment and what have you, conflicts with the implied freedom. So here we have, in one sense in statutory form, an even closer analogue to the present case ‑ ‑ ‑
FRENCH CJ: It is really an argument by analogy ‑ ‑ ‑
MR REYNOLDS: It is.
FRENCH CJ: ‑ ‑ ‑ about the application of the implied freedom of constraint on power to a particular statutory provision.
MR REYNOLDS: Exactly, and I am sorry if I have not come at an appropriate description of the argument as quickly as I should have. But your Honour the Chief Justice has my point and that is this is if one comes, as I do, through the majority holding my learned friend, Mr Bennett, took your Honours to in Coleman v Power which seizes on the decision in Lange – I emphasise that word because it is the holding, in relation to the particular laws that were in issue – one then comes back down through there to Lange and then back to the original case there is an axis of decision‑making in relation to what we now call the second limb which, I submit, favours me and which your Honours would be very much guided by, not only as a simple matter of analogy, but also in terms of the strict holdings in these cases.
Now, going back to what one of your Honours raised with me earlier, is it possible to draw some fine distinctions between the law in the present case and the decisions in Coleman, in Lange and Nationwide? The answer is, of course. One can fiddle round the edges with a scalpel and find that there are little bits and pieces where fine distinctions can be drawn.
But I submit that the balance, the axis of decision‑making in this area in relation to notions of offensive, insulting, defamatory, bringing into disrepute and the like is very clear, and that is if there are no defences at all and, in particular, no defence of the kind recognised by this Court in Lange, then I am squarely within the holdings in these various decisions.
FRENCH CJ: Any way, you say, in effect, that a blanket prohibition on an offensive communication covers, in the context of section 471.12, necessarily picks up political communications and absent any qualification on that prohibition offends against the implied freedom.
MR REYNOLDS: Quite.
FRENCH CJ: And that you cannot save it by reference to the second limb of Lange which is the qualification on the implied freedom.
MR REYNOLDS: Exactly.
FRENCH CJ: So, it is all about the application of that evaluative judgment, as it were, to these provisions?
MR REYNOLDS: Exactly. One of the difficulties that I am trying to get over in one sense is there has been some debate about the Lange tests. I am trying a little bit to move away from that and look to the actual holdings in these cases which give guidance to the way the second limb is applied to its operation in practice and I would submit that it is pretty clear.
Putting it another way, if one was dealing with – we have referred to media publications at paragraph (xix) under paragraph 3.12 – one could have a media publication sent through the post which was defensible in defamation terms by reference to the Lange defence but which would amount to an offence under this provision because it was offensive to a reasonable person in all the circumstances just that it was defamatory to a reasonable person in all the relevant circumstances, but if it is defamation the publisher would have the Lange defence. Here there is no defence.
At any rate, I am starting to repeat myself and I propose to move to a slightly different matter and that is to the other argument, as I understand it, which is put against me which in substance is this. That there is a jury, given this is an indictable offence, that will deal with the merits of whether or not this alleged crime has been proved and the jury will ensure – this is the substance of the submission, as I understand it – that this statute complies with the implied freedom. Why? Because at some level the jury are going to take into account the fact that if these communications, these publications, are political they will take that into account in determining whether or not there has been an offence under this provision.
That was a submission which was floated before the Court of Criminal Appeal, and again your Honours will have seen from our submissions – this is around about paragraph 57 and following and in particular paragraphs 58 to 65 of our submissions. This issue was dealt with really in three different ways by the three judges in the Court of Criminal Appeal. Just pausing there, we submit, indicates that there are some difficulties which my friends have to overcome in this regard.
The Chief Justice, Chief Justice Bathurst, is quoted at paragraph 58 of our submissions in effect as saying that it might be suggested by either the presiding judge or by counsel that the political nature of the communications is a matter relevant to determining whether or not the communications offend against the provision. We have responded to that at paragraph 63 by pointing out that if this is simply a suggestion that might be made, then one cannot say with any degree of certainty at all that the jury would take the matter into account, and they certainly would not be bound to take the matter into account because there would be no such direction formally put to them by the judge.
The President, Justice Allsop – this is halfway down paragraph 59 of our submissions – in effect suggested that the jury would be – we have italicised this word – “required to recognise”, which implicit in that is that there would be some form of direction. We have noted, with respect, some difficulties that we perceive with that in paragraph 64 of our submissions, the main difficulty being what would the direction be, and we submit that there are difficulties with asserting that such a direction would be mandatory.
Now, the Chief Judge, Justice McClellan, in paragraph 60 adopted an even more, with respect, generalised approach, talking about the jury accommodating the provisions to the implied freedom by reference to “accepted political discourse in Australia” and, as he said, “legitimate political” communication and the “accepted latitude” which is found in political debate.
We have said at paragraph 65 that that alternative approach also has difficulties and in paragraph 66 we have concluded by submitting that, if the Crown wants to say that there is an accommodation of the implied freedom, as it were, in the jury decision‑making in relation to the statute, then they have to hunker down and say with precision what is the direction, if they say a direction should be given, that will deal with this particular issue which we respectfully submit they have not done. Your Honours can see from these various different approaches that there are substantial difficulties, I respectfully submit, in that approach.
Your Honours, I have set out in paragraph 3.12 various factors and your Honours know what the approach is here because I took the same approach in the Corneloup Case. We have given references to our written submissions and to the various factors. We are a little bit perhaps short of time today, Chief Justice, and as I said yesterday, I can deal with this in longer or shorter form. I think, given the discussion that took place yesterday, a much shorter form might be appropriate.
FRENCH CJ: I think that bear in mind we have got the written submissions and I think if you would take us to what you really want to emphasise?
MR REYNOLDS: I do not think, given the way we have set these things out that I perhaps need to talk about them to any great degree. Can I just perhaps mention three very, very briefly? One is the third one, we talk about that it is an important means of communication for core political material, a matter that was particularly discussed in Roberts v Bass in
relation to how to vote cards, electioneering pamphlets, and the like. Your Honours know about the electoral rolls and how candidates in particularly the Federal Elections communicate with the electorate. This is a very important mode of communication with the electorate in relation to such core material. I did just want to stress that briefly.
In relation to paragraph (x) we have said that Australia Post has a monopoly in the mail and citizens have no alternative other than to use the mail or like services. That is in relation to or no real alternative in relation to physical delivery of letters or parcels. There are, of course, other modes of communication such as email. Thirdly, I have varied paragraph (xv) to accommodate what I suggest is a substantial improvement in that formulation, as I have put to your Honour Justice Hayne early in the piece. Finally, I have already said something about (xix) in my reference to media publications slightly earlier. The final thing that I need to deal with is the issue of reading down and the short point here is that we say that there can be no distributive reading down.
In the Coleman Case at the reference we have given to Justice McHugh’s judgment he referred to the well‑established principles of reading down. But if your Honours look at the references at paragraph 4.3, your Honours will see that the difficulty is that for there to be a distributive reading down of this provision so that it did not apply to political discussion generally there would have to be a clear criterion for reading the provision down. We submit, given the way the communications within the implied freedom have been characterised, that there is no clear criterion which can be applied. If the Court pleases those are my submissions.
FRENCH CJ: Yes, thank you, Mr Reynolds. Yes, Mr Agius.
MR AGIUS: Your Honours, the key to the appellants’ cases here is to subvert the real meaning of “offensive” in the context at which it appears so that it refers to no more than hurt feelings. They have seen the little light in Coleman and they are attempting to turn it into a spotlight in this case. What that does, is to ignore the context of section 471.12 and to completely put aside any suggestion that in that section, the word “offensive” has its own discrete meaning, separate to any meaning that it might have for the purpose of the laws of defamation – separate to any meaning that it might have in any other provision. And, fundamental to our response to their case, is a recognition that the word “offensive” has a particular meaning in this context.
It has that meaning because of the legislative history of section 471.12, itself, its place in the Act and, also, because of the use of the word “offensive” alongside words “menacing” and “harassing” and the application of the principle noscitur a sociis. The fundamental question is what does “offensive” mean? In our respectful submission, the Chief Justice was correct when he defined “offensive” in the particular way in which he did.
The word “offensive” in the context of political debate, or political discussion, had a meaning well before the notion of the implied freedom ever found its way into law – well before even Justice Murphy referred to it in dissent. The clearest expression of that is in the judgment of Justice Kerr, as he then was, in Ball v McIntrye which we have at 9 FLR 237. This case concerned a protest during the Vietnam War. It concerned persons climbing onto a statue and hanging a banner on the statue. It was dealt with as a summary matter. The two passages that I draw attention to – firstly, at 240 at about point 5 on the page:
The question therefore is, was this political behaviour, because of its nature and circumstances, also offensive behaviour? It is clear that some kinds of political behaviour can be offensive behaviour in the eyes of the law, but one must be careful in the case of political behaviour not to condemn as offensive, conduct of which one disapproves on political grounds, and I think it is fair to say that the police and the Crown in this case have sought to make this distinction.
Then at 241, again about point 6 on the page, in the second line of the paragraph beginning “People may be offended” –
Some types of political conduct may offend against accepted views or opinions and may be hurtful to those who hold those accepted views or opinions. But such political conduct, even though not thought to be proper conduct by accepted standards, may not be offensive conduct within the section. Conduct showing a refusal to accept commonly held attitudes of respect to institutions or objects held in high esteem by most may not produce offensive behaviour, although in some cases, of course, it may.
This charge is not available to ensure punishment of those who differ from the majority. What has to be done in each case is to see whether the conduct is in truth offensive.
That is a judicial recognition in an early state, 1969, of the robust nature of political debate. That robust nature was recognised by this Court in Coleman v Power. It was recognised by the Court of Criminal Appeal below, and it was central to their determination of what the word “offensive” means in the context in which it appears. Section 471.12 was added to the Code in 2002, and Justice Allsop was minded of the legislative history and referred to it in its place in the Code as a significant matter at appeal book 103, paragraph 74. It was inserted as part of Division 471 dealing with postal offences:
Surrounding provisions deal with serious subject matters: hoaxes involving explosives and dangerous substances . . . threats . . . dangerous articles . . . explosives or dangerous or harmful substances –
Section 471 itself was a reworking of a previous provision which existed as section 85S, and your Honours will have that reproduced as an annexure to our submissions. What is important to note is that in section 471.12, for the first time the words “menacing, harassing or offensive” are laid side by side and the ‑ ‑ ‑
CRENNAN J: Is that the first time the reference to “reasonable persons” ‑ ‑ ‑
MR AGIUS: No, it is the first time “reasonable persons” was applied as part of the test relating to menacing or harassing. But it is not the first time “reasonable persons . . . being, in all the circumstances” was applied as part of the test of “offensive”. Two things happened in 2002 with the introduction of 471.12. The three words were put together, “menacing, harassing or offensive”, and secondly, those words, “the person does so in such a way as would be regarded by reasonable persons as being in all the circumstances” were applied for the first time to those three words together, “menacing, harassing or offensive”.
That is some indication that the legislators intended that there was some commonality between those three words, “menacing, harassing or offensive”. The third thing that happened in 2002 was the penalty was increased from one year to two years. In our respectful submission, it is not to the point to say that in the three says that the defence has been able to turn up, or the appellant has been able to turn up, the penalties which were imposed were below two years or below one year. That is not the issue. The issue is how did Parliament regard the seriousness of a breach of this offence? The maximum penalty for the worst case of offensive use of a postal service is two years.
FRENCH CJ: Now, can I just ask a question about that? Can one discern any policy about informing the purpose of the provision from the limitation of its application to “postal or similar service”, or is that simply a limitation, having regard to the definition of that term, which is forced upon the Commonwealth because of the limits of its constitutional powers?
MR AGIUS: That provision, “postal or similar service” really can cut both ways. It may be that the Commonwealth was compelled to include “or similar service” because there were competing services and they wanted to control this type of conduct, or it may be a recognition that in some areas of Australia there are private service providers which service the area in the same way in which Australia Post would otherwise service the area. One really does not understand ‑ ‑ ‑
FRENCH CJ: Well, there are concurrent – I mean, in every capital city you can have postal services provided by Australia Post or you can use a commercial courier service which perhaps has a national coverage.
MR AGIUS: Yes, and that is a fact ‑ ‑ ‑
FRENCH CJ: Or is provided by a corporation and in most cases it would be.
MR AGIUS: Yes.
FRENCH CJ: In other words, there is no policy, I am suggesting, which, as it were, defines a limit on the liability created by this provision which does not allow it to apply to any delivery of a communication from one person to another that reasonable persons would regard as being, in all the circumstances, as menacing, harassing or offensive. It is just a matter of constitutional heads of power.
MR AGIUS: Yes, it is section 51(v) and 51(xx).
HAYNE J: Do I understand you, though, to embrace Chief Justice Bathurst’s understanding of offensive?
MR AGIUS: Yes. We do embrace it and we say that it goes well beyond hurt feelings and in that regard, your Honours, we do draw attention ‑ ‑ ‑
HAYNE J: But it is an idea that fastens upon expected effect on a recipient judged objectively, is that right?
MR AGIUS: Yes.
HAYNE J: Characterised by the application of the various terms with their intensifying epithets?
MR AGIUS: But important intensifiers, in our respectful submission.
HAYNE J: Well, what is their content? Are they jury questions?
MR AGIUS: Their content is – one has a clue to their content if one goes to paragraph 64 of the Chief Justice’s judgment at appeal book 100:
In the present case, it seems to me that offensive communications of the nature which I have described –
and he repeats the description –
would be communications which could provoke retaliation and thus be legitimate for Parliament to prohibit.
HAYNE J: How can a letter provoke retaliation, Mr Agius? It means that the recipient has to find the sender, take the time to find the sender and, what, go and punch their lights out? Really, is that the case you are putting forward?
MR AGIUS: Can I give an example, your Honour? It may not be a very palatable example to some people from some cultures, but we recently saw on television what was the result of somebody posting on YouTube a film which was defamatory of a prophet. Now, whether the maker of that film was sought out from whichever hidy‑hole he was in and had his lights punched out is one matter.
But if one were to reverse the circumstances of these letters and consider letters which were defamatory of the prophet which were sent to an imam and if that were to become public or made public by the imam, it may well lead to civil commotion, it may lead to riots, it may lead to the seeking out of the individual who may live in Cronulla who wrote the letter and who caused the riots. There is a real question of public order.
The fact that something comes in a letter as opposed to being said to one’s face directly is not necessarily a limiting feature on the question of whether or not there needs to be consideration of the protection of civil order. Sometimes conservative people who do not go and seek out the writer of such foul letters as we have seen here may not be acting in the way in which everybody else would act, and that does not mean that Parliament should not consider that there is perhaps a need and seek to cover that need by legislation.
KIEFEL J: Is that aspect of the Chief Justice’s judgment in any event critical to an understanding of Parliament’s intention? I have this in particular in mind what Chief Justice Gleeson said in Coleman v Power at paragraph 12, namely, that it may be somewhat artificial to think of retaliation in relation to a group of thugs threatening or abusing or insulting “a weak and vulnerable person”. They may be:
unlikely to provoke any retaliation, but their conduct, nevertheless, may be of a kind which Parliament intended to prohibit.
MR AGIUS: In that sense, with respect, your Honour, his Honour the Chief Justice, need not have gone that far but I drew attention to 64 to make plain that his Honour was not talking about some aggravated hurt feelings in a vacuum. He was speaking about aggravated hurt feelings or significant emotions such as anger and hatred in the context of a possibility of provoking provocation.
FRENCH CJ: But you are looking at one rationale which would, as it were, justify what it formulated in paragraph 44 as the criterion for liability. Is that not right?
MR AGIUS: Yes.
FRENCH CJ: I am just wondering, this concept of significant, which almost falls into the category of being this reference, it gets pretty close, does it not, to a test which invites the jury in the same way as a jury in cases of criminal negligence might be invited to determine whether the conduct is such as to be worthy of punishment by the criminal law?
MR AGIUS: I think people understand what significant anger is if it is just posed with the words “hatred” or “outrage” and it is a long way from hurt feelings. One has to understand the context in which his Honour said this. This case went forward to the trial judge and to the Court of Criminal Appeal on the basis that my learned friends were arguing that this offence was really about hurt feelings, and the prosecution was arguing this was not about hurt feelings. This was about something much more than that. Now, his Honour has encompassed that, that difference ‑ ‑ ‑
CRENNAN J: At paragraph 59, and I think there was some discussion of this yesterday, in discussing the purpose of the legislation his Honour speaks of arousing “significant anger, significant resentment” and so on. It is the arousal there, possibly short of physical retaliation that is being spoken of.
MR AGIUS: Yes, and he is speaking of that arousal in the context that if you take that as far as it might go it could lead to provocation.
HAYNE J: But is that a necessary step in your argument?
MR AGIUS: It is not necessary, but we do say that that is the context in which his Honour put the definition of “offensive” in paragraph 44 and it is, we would say, reflective of what one might expect in multicultural societies as a matter that Parliament would legitimately seek to deal with.
HAYNE J: What, to prevent people getting angry, seriously angry, significantly angry?
MR AGIUS: Yes, to prevent people using the postal service which caused other people to get seriously angry because when people are seriously angry there are often consequences.
FRENCH CJ: It is not based upon actual response, is it; it is based upon an objective test, what a reasonable person would think?
MR AGIUS: Yes.
FRENCH CJ: It cuts across multicultural or cultural sensitivities, does it not? It is a general objective test?
MR AGIUS: It is a general objective test.
FRENCH CJ: This is not tailored to multicultural issues?
MR AGIUS: No, it is not. It is a very broad test and it entitles the tribunal of fact to take into account all of the circumstances which would include the circumstance that a particular defendant might say that he or she was doing no more than exercising a right of political communication and that they were not vilifying a particular person or a particular family or a particular soldier. It leaves open and, indeed, it requires those circumstances to be taken into account if they are relevant. It deals with a very, very narrow band of what might be called political communications in the first place. Although there is robust political debate, there is very rarely, if at all, this kind of offensive garbage served up to people in the form of letters directed to them in their home.
FRENCH CJ: You sound like you are making a jury point. I think they are focusing on the application and construction of the provision.
MR AGIUS: Yes. In our submission, it is a relevant provision which has a legitimate end.
KIEFEL J: By what you are saying, are you saying that there is not an undue burden – that the restriction is very limited.
MR AGIUS: Yes, and that leads into our argument that there is no effective burden and if we are wrong about that our alternative argument is that the burden is a very light burden. I understand that Justice Hayne has raised a question about what “light burden” means and I will come to deal with that. But our first proposition is that once one understands the true meaning of “offensive” in section 471.12, and to that end we embrace what the Chief Justice said, with respect, then it is difficult to see how one can find that the burden on the freedom – well, that there is an effective burden on the freedom.
That is our first submission in relation to the first of the Lange tests, critical is to determine what the section prohibits and then to look in a realistic way at that prohibition and whether or not, in the general nature of our society having regard to all manner of political communication, all the avenues that are available, the way in which people seek to express their views, having regard to the meaning of “offensive”, whether there is an effective burden. We say there is not. We deal with this at our written submissions at paragraphs 39 to 42. In our submission, the starting point is what fell from his Honour Justice McHugh at paragraph 41 of Coleman v Power (2004) 220 CLR 1 and at paragraph 91 his Honour said:
In all but exceptional cases, a law will not burden such communications unless, by its operation or practical effect, it directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence.
Now, in our respectful submission, when one looks at section 471.12 this is an example of remotely affecting political communications. It deals only with the form of language used in the sense that it proscribes offensive language in the way in which the Court of Criminal Appeal has identified that word.
HAYNE J: Why is that not a direct restriction or limit on content?
MR AGIUS: Because it does not deal with content.
HAYNE J: What is the offensive element doing except directing attention to content?
MR AGIUS: The offensive – directing attention to the content of the statement not – it is the mode of expression of the political nature of the statement that is caught by the section, that is ‑ ‑ ‑
HAYNE J: I must say to you, Mr Agius, I just do not understand what you are saying. I am lost. You need to explain it to me in a much simpler fashion.
MR AGIUS: Thank you. If one looks at the meaning of “offensive” as has been found by the Court of Criminal Appeal that word is directed at the arousal of very strong feelings which might provoke a retaliation. In most circumstances, the mischief that that is directed at is the way in which the material political communication is expressed as opposed to the expression of the content of the political communication itself. It is the mode of expression.
HAYNE J: I will read the transcript, Mr Agius. I am sorry, I will not delay you further. I will look at what you have said.
KIEFEL J: In some cases it might be possible to say that you can make your point without being offensive. That is the how as against “how you say it” rather than “what you say” distinction but in some cases the very statement you make might itself be offensive. I do not think you can say that there is a black and white.
MR AGIUS: We cannot exclude that, your Honour.
KIEFEL J: No, that is right.
MR AGIUS: But what this section is directed at is not what you say, although it is possible that what you say sometimes will create offence but in our submission it would be unlikely that what you say would create the level of offence that is indicated in the definition that the Chief Justice has provided.
FRENCH CJ: If I am saying something to somebody orally, I may say a thing in perhaps two ways. I might say it in a way that is by tone of voice and other means, inflection and so forth, in a way that is not offensive or impressive or insulting. I might put a sneer into my voice in a way that makes it quite clear that what I am saying is intended to wound, to be offensive.
One can perhaps understand distinction between content and mode in that context but when we are talking about postal services and similar services, putting something in writing, the offensive component or the offensive attribute really must arrive from content, must it not, not from the kind of paper you use or anything of that sort. It really has to do with content? In other words, I am suggesting it is very hard to make the division when you are talking about the sort of communications that are going to be caught by this provision.
MR AGIUS: The use of the post is what is proscribed, and there are many ways in which the post could be used. Part of that in our case at the moment is the timing of these letters. Another is the way in which the letters disguise themselves as being offers of condolence to engage the reader, and then of course they deliver an entirely different message. That is an example of the use of the post.
What that submission was directed at was this, and using this present case as an example, the political content will be said to be persuading Australians that Australia should not be in Afghanistan. There are a number of ways of delivering that message in writing. One offensive way of doing it, offensive in the meaning of 471.12, is to write a letter which pretends to be a letter of condolence and which attacks the deceased, and barely mentions the issue about Australia being in ‑ ‑ ‑
FRENCH CJ: But in the end, you judge that by reference to the content, do you not? You cannot get away from that.
MR AGIUS: In that sense, yes, but not to the substance of the political message that is being delivered, which is that in this case, Australia should not be fighting a war in Afghanistan.
BELL J: But it would depend upon the political message. A person might have very strong views about eugenics, and seek to convey those to members of the community by sending correspondence, which might answer the description of being offensive within the way that term was expressed by the Chief Justice, might it not? The very idea might be ‑ ‑ ‑
MR AGIUS: We cannot exclude that possibility, but we say that it will be a very rare occurrence and that more likely than not, this section will catch the way in which the message is delivered, the way in which the post is used to deliver the message, including the way in which the message is phrased rather than the real substance of the message itself.
It is unlikely in the ordinary course of events – we are not saying it is impossible or that it will not happen – but in terms of determining whether or not this is an effective burden on political and government communications, we say that it is more likely to reflect itself in the mode of expression as opposed to the idea being expressed. This case presents as a perfect example, which is why we put that submission.
CRENNAN J: That explains, I daresay, the way in which the counts in the indictment have been framed.
MR AGIUS: I am sorry, your Honour?
CRENNAN J: That explains the way in which the counts in the indictment have been framed in terms of sending a letter, dated so-and-so ‑ ‑ ‑
MR AGIUS: That is right, your Honour.
CRENNAN J: No reference to content.
MR AGIUS: Yes, but that assumes of course that the letter has some content. But a significant part of this case is the timing, and laying the groundwork for the receipt of a letter by the family of the deceased, ringing up first, “Do you mind if I send you a letter of condolence?”, et cetera, and the headline of the letter, “I write to offer you help”, et cetera.
So in that sense the section is engaged in its entirety to the use of the postal service in all the circumstances, those circumstances including the timing, the way in which the groundwork was prepared for the letter to be sent, the fact that the letter was sent by post, and the way in which the message in the letter was expressed. That is really all I can say about the question of the burden beyond what we have said in our written submissions.
In our submission, the burden on political and government communications is de minimis and it then brings us to the second limb. In respect of the second limb, our submission is firstly that there was a legitimate end in this legislation and that that legitimate end is referred to by the Chief Justice at paragraph 59 and by the President at paragraph 78. The two expressions of legitimate end, in our respectful submission, are cumulative and we point to the important role that communication and post has in our society; the protection of the integrity of the post as a means of communication in which the public can have confidence.
One only needs to spend a short time to think about the significance of the use of the post in our society. It is in a very real sense an essential an essential element of communication. Legal documents can be served by post, people may vote by post, political parties and governments may communicate by post, commerce depends upon the use of the post. It is in the interests of society that people have confidence in the post, both as recipient and as the sender of articles in the post.
HAYNE J: Confidence about what?
MR AGIUS: Confidence in the post in the sense that they will not have their feelings raised to such a level that they might be moved to hatred or moved to violence or that they will not be in that way engaged, that is that they will not be offended in the way in which the section is directed. The significance of a postal item is that ‑ ‑ ‑
FRENCH CJ: It is important to bear in mind the breadth of the definition of post or a similar service when you make these submissions.
MR AGIUS: Yes. The significance of a postal item, whether it be a similar service or what we call Australia Post, and the way in which it is dealt with by the recipient is that the recipient is, to a large extent, denied a say in whether or not the recipient will receive the material. The recipient goes to the letterbox, sees a letter. The letter is addressed to them, it is addressed to them personally and it immediately engages them. If a person was saying something to them that is in the letter in the street or came to their door to say it they could close the door. They could consent or not consent to being aware of that material, to reading it or to hearing it.
When they open a letter they are engaging directly with the sender of the letter and they take that letter into their house on trust, in the same way in which they would invite somebody into their house. They open that letter and they have focused attention on that letter in a way in which, perhaps, you do not have when you are in the street or when somebody is talking to you. But you are focused and engaged on the letter and for that reason they need to have confidence that they are not going to be abused in a serious way when they open that letter because, in a sense, they are accepting that letter on trust ‑ ‑ ‑
FRENCH CJ: But this prohibition applies equally, does it not, to the delivery of a community newspaper through a courier service or through the post?
MR AGIUS: It would, yes, and when somebody gets a community newspaper one has an expectation that it is a newspaper and will it express a great deal of divergent views. One does not look at a newspaper that comes through the post in the same way in which one would necessarily look at a letter. One can see that it is a newspaper and determine not to read it.
How many times do we go to the letterbox and see material and determine that we are not going to look at it when it is not in the form of a letter, when it is in the form of brochures or otherwise. But when something is in the form of a letter it has a particular quality about it, in our society. Now, those letters contain all kinds of important information, which is important for society to function.
They may contain legal process, they may contain important communications from institutions and government. They may contain important political material which politicians or hopeful candidates want their constituents or would be constituents to read. By protecting the integrity of the post in this way, in effect, the Parliament is strengthening the avenues of political and government communication by ensuring that what is sent out will not be of the offensive kind that is spoken about in the judgments. In that sense, in the sense – in the very real practical sense of, if you like, improving society’s relationship with the post and by maintaining a confidence in the post, the Parliament is protecting a legitimate end. We move from that to what the President said at paragraph 78, which ‑ ‑ ‑
BELL J: Before you go to the President, is it necessary to go beyond a consideration that the Parliament is determined to protect people from the receipt of material that is offensive in the way that term is described by Chief Justice Bathurst, putting to one side whether one is out to protect the confidence of the post or like services, whatever that might mean?
MR AGIUS: No, one does not need to go beyond the fact that Parliament, if it has the power to protect people from those matters, subject to implied freedoms.
HAYNE J: What, Parliament is controlling its own power, is it? By determining that the law should be passed, determines the application of the limitation on its powers.
MR AGIUS: No, the Parliament has ‑ ‑ ‑
HAYNE J: It cannot be right.
MR AGIUS: Well, that depends upon the way in which you take my response. Parliament has power within the confines of the Constitution. It has power in relation to post and telegraph. It has the power to control and put conditions on the way in which the post is used. This provision is directed to the use of the post and, within that power, it provides a restriction upon the use which it has power to do. And, our submission would be that once we have that power – and that power is not being challenged in this case – then Parliament can put in restrictions on the use, subject to the implied freedom for the purposes of this case.
HAYNE J: That is the area for debate.
MR AGIUS: Yes. I did not understand Justice Bell to be putting to one side any restriction that might be applied by the implied freedom because then we come to the question of whether or not having legislated in this area, accepting that it has the power, it has done so in a way which is reasonably appropriate and adapted.
HAYNE J: To a legitimate end that is more than the exercise of power.
MR AGIUS: To a legitimate end?
HAYNE J: Yes.
MR AGIUS: But, so long as it has power, it need not have – the question is does it have the power? If it has the power, then it can exercise that power. If it exercises that power, the question is whether or not it has done so in a way which is compatible with the freedom, and that involves all the considerations that we are aware of. Paragraph 78 of the President’s judgment also speaks of legitimate ends which counsel for the appellant, Monis, has accepted as legitimate ends.
KIEFEL J: I suppose, in one view, it needs to be borne in mind that not only is the legislative power – assuming that there is a head of power – not only is the power to legislate not subject to restriction, but the freedom, itself, is not absolute. They are two starting points. Neither of them are absolutes.
MR AGIUS: Yes. We embrace that, your Honour. That is the nature of the freedom as opposed to, and even if it were a right ‑ ‑ ‑
KIEFEL J: But, the fact that the freedom is not absolute, I think, has been stated many, many times.
MR AGIUS: Your Honours, I will not read it but from the fifth line of paragraph 78, the President sets out what is said to be an acceptable legitimate end in relation to this.
CRENNAN J: Can that stand independently of the reference to the integrity of the post? It does not depend on that idea, does it?
MR AGIUS: No, it does not.
BELL J: In that sense there might be thought to be little real difference between the way the Chief Justice puts the matter at paragraph 59 and the way the President puts it at paragraph 78.
MR AGIUS: Yes. That was my next submission. The Chief Justice deals with this at paragraph 59 and in substance they are really speaking with the one voice. It may be our expression, “integrity of the post” that caused angst but it is the substance that stands behind that submission that is important. We do submit that another legitimate end is avoidance of breaches of the peace and the control of public order.
HAYNE J: That is that the recipient is not to be provoked to commit a crime which at the time of its commission would be a premeditated crime?
MR AGIUS: Yes, it would be a premeditated crime but, nevertheless, one which is the subject of provocation.
HAYNE J: Which would not be a defence excuse or any other modification, save perhaps, as to sentence?
MR AGIUS: Yes, but striking someone who says something to you in the street would still need to be ‑ ‑ ‑
HAYNE J: Exactly. Public places.
MR AGIUS: I will come to public places, your Honour, because I know it was a matter that your Honour raised yesterday and it has caused some interest in the Court. But if one were to strike somebody in the street the prosecution would still need to prove an intention to strike and a deliberation, and we are really talking about matters of degree between opening a letter, going out in your street seeking out the person and causing them some harm and turning around and striking somebody in the street who abuses you. It really is a question of degree, not really a question of principle, in our respectful submission.
Beyond breaches of the peace, I am reminded of our written submissions in this regard which your Honours will find at paragraph 35. There is also the possibility, or indeed the consideration, concerning people who depend upon the post and the effect that receiving offensive material, as defined by the Court of Criminal Appeal, might have on them. It is possible that, for example, the receipt of a harassing or offensive letter by somebody in a remote area might have a more deleterious effect upon them than if that person saw those words in a newspaper or heard them uttered in a town hall.
The effect on a person may well be much more dramatic and far‑reaching when that effect is directed deliberately at them in the way in which a letter can do that. The Parliament has in other context recognised this whole concept of intrusion into a private domain and the importance of protecting people from intrusion into private domains with, for example, anti‑grooming legislation, where people have the internet set up in their house and all of a sudden some dreadful pervert is grooming their child for a meeting; a person who they would never let in their front door but who is able to get in their front door and have direct communication with their family through the internet. Now, a letter is not the internet, but a letter has that kind of appeal, that access to one’s home that one does not have if one is on the street. If one is on the street, one can avoid those sorts of things.
Can I at this point deal with this issue of public and private? In Coleman v Power, the Court was dealing with an offence which was being committed in public and so any test that emerged from Coleman v Power had to address the issue of the public nature of the offence in question because the offence itself was public.
Coleman v Power cannot stand for any broader proposition than is supported by the facts before it and, in that sense, one needs to be careful when one looks at Coleman v Power and some of judgments and when one looks at the fact that – when one takes it out of its context. Here we are dealing with a communication which in the main is received by people in private, as opposed to Coleman v Power. At paragraph 189 of Coleman v Power, your Honour Justice Hayne and Justice Gummow began or, indeed, focused upon section 7(1)(d) of the Vagrants Act as creating a criminal offence. This joint judgement reads:
That point can be identified by posing the question: what is it which would make the public, as distinct from private, utterance of insulting words to a person a matter for criminal punishment? The answer to the question must be found in the particular characteristics which the “insult” must have.
That statement, we would be so bold as to suggest, was related to the fact that the offence in question was an offence relating to conduct in public. But everything else that is said from that point on, in our respectful submission, relates just as well to the receipt of a letter in one’s home. One can read the rest of the joint judgment from paragraph 190 through to 193 as having as much relevance to, if there were an offence dealing with such conduct in a private home, to such conduct. The context is set by the statute, but the principles enunciated between paragraphs 189 through to 193 would not have been any different if that statute had related to conduct in private.
The law has not always intruded into conduct in private homes, and to a large extent, that may be a recognition of what is sometimes said to be this “master of the domain” concept. But it has, from time to time, intruded into homes. The point to be made here is that the letters do intrude into homes, and to the extent to which the joint judgment identified the fact that the abusive statements were being made in public to a person, that concept is just as relevant when the abusive or offensive statements are recorded in letters addressed to a person, and which a person reads in their home. For those reasons, in our respectful submission, the private/public divide is as a matter of principle, we would submit, not one which would demand a result in this case, which was that the provision was not reasonably appropriate and adapted.
Overnight, others have undertaken research and have provided examples of civil or criminal regulation of private interactions in the form of words, and this list does not purport to be exhaustive, but it is what was able to be cobbled together overnight. There are many examples at both State and Commonwealth level where private communications in a home are now the subject of prescription by government.
HAYNE J: Sorry, can I be sure to which note you are referring, please, Mr Agius?
MR AGIUS: Sorry, your Honour.
HAYNE J: What is its heading?
MR AGIUS: Monis v The Queen – I am sorry, I thought your Honours had it. I was operating under a misconception. This is the note. It is headed “Examples of civil or criminal regulation of private interactions in the form of words”.
KIEFEL J: I do not suppose anyone has looked to see whether or not in other jurisdictions, albeit where there is a right of freedom of communication, whether the method of communicating such as the use of offensive words has been dealt with?
MR AGIUS: No, unfortunately we have not looked at that, but we could look at it and provide a note.
KIEFEL J: It is hard to believe that it has not arisen at some point, particularly in the European context.
MR AGIUS: Your Honours will see there many examples where private conversations have been subject to regulation. So private letters read in the home are, as a matter of principle, indistinguishable from those. I have identified one point of distinction between this matter and Coleman vPower and sought to explain why the focus on the public place emerged from context and does not relate to matters of principle. We have also identified the significant and, in our respectful submission, aggravating feature that the receipt of a letter focuses attention and the private nature of the dealing, if anything, adds to the intensity and does not detract from any matter of principle.
The other matter about Coleman v Power is that yesterday my learned friend, Mr Reynolds, took the Court to statements by Justice McHugh in Coleman v Power seeking to draw parallels between that case and this. At paragraphs 102 and 105, the significance that we point to is that his Honour was speaking about unqualified prohibitions, not prohibitions which are qualified and section 471.2, in our respectful submission, is an example of a qualified prohibition. At 102, Justice McHugh said:
An unqualified prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted for preventing breaches of the peace -
He used the expression:
an unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom.
Such a prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted. It is our submission that the prohibition here is qualified and it is reasonably appropriate and adapted. The qualification is the obvious qualification which is part and parcel of the section and we deal with this at paragraphs 22, 23 of our submissions.
BELL J: I am not sure how that is accommodated to your acknowledgement a little earlier that on occasions, I think you suggested they may be rare, the burden as it were of the communication is itself offensive, albeit it is advocating a view directly on a matter of political controversy, may instance eugenics, for example.
MR AGIUS: The test would be whether a reasonable person, in all the circumstances, would regard that communication as being offensive in the sense defined by the court below and that, in our respectful submission, amounts to a reasonable adaptation and a suitable adaptation, given the ends which Parliament is trying to meet through this section. There is qualification on the prohibition in the use, content of the communication or both, would have to be regarded by reasonable persons as being, in all the circumstances, offensive.
Now, the expression “all the circumstances” is a very broad expression and is broad enough to take account of the claim by the maker of the statement, in the case of eugenics, that that was a statement made in the exercise of the implied freedom to speak of government and political matters.
The jury would be instructed that in terms of Coleman v Power that the Australian democratic system is one which embraces robust debate, which embraces satire, which embraces insult, which embraces invective and which embraces confronting people and putting them in uncomfortable situations. It would be a matter for the jury in this case to determine whether, in all of the circumstances, the material was still offensive in the terms as defined. In our respectful submission, that is a reasonable adaptation.
FRENCH CJ: Would you accept that at some level that debate encompasses communications which may offend people, albeit falling short of that offence which creates liability under 471.12?
MR AGIUS: But they will be instructed that people may well be offended, but in a manner which is short of the definition of “offensive” and that that would not make out the offence. It has never been the prosecution case that the word “offensive” simply means hurt feelings and that it is in the context of political and government debate one should not be confronted and one should not be offended. It is the question of what the word “offended” means in those circumstances and we would say this is not – even in Ball v McIntyre simply being offended would not be enough. One would still, even in those days, have to take account of the nature of the discussion, the purposes of the discussion, the fact that it was political; the fact that people have different views.
That would all be accommodated in the direction to the jury in this case and is well and truly caught up in the concept of all the circumstances. It may be that the circumstances in the case of the eugenics person would be quite different. If the timing of that correspondence related to some dreadful experience that that person had had with eugenics or did not have with eugenics, then there is the possibility that you could still get to the sort of offensiveness that the Court of Criminal Appeal was speaking of.
But as to whether or not one reached that position, one would be in the hands of a jury, a jury which has a contemporaneous concept of relevant social mores at that time, a jury which participates in the democratic system, a jury which plays an important part in the democratic system and which understands the way in which the system works and in addition, as participants in the democratic system, they would have careful directions of law from a trial judge in the terms that the Court of Criminal Appeal envisaged.
There are references to these considerations and the importance of the role of the reasonable persons and the circumstances in the judgments of the President at appeal book 104, paragraph 76; the Chief Justice at appeal book 90, paragraph 34 and appeal book 100, paragraph 65; and Justice McClellan, the Chief Judge at Common Law, at appeal book 113, paragraph 99.
Your Honours, there are some matters that were raised yesterday that we want to deal with before we conclude and there is one additional matter which is referred to in our outline of argument which we want to deal with, but I will deal with that last. Yesterday my learned friend, Mr Reynolds, made reference to the reply that has been filed by the appellant, Monis, and he drew attention to the reply at paragraph 2 which records:
At R[30] it is asserted that a construction of the word “offensive” which includes hurt or wounded feelings is unsupported by authority.
In our respectful submission, that is the setting up of a false straw man because nowhere in our submissions at paragraph 30 do we say that the construction of the word “offensive” which includes hurt or wounded feelings is unsupported by authority. At paragraph 30 of our submissions we record the assumption by each of the appellants that “offensive” in section 471.12 includes “hurt feelings” or “wounded feelings” is unsupported by authority or the context in which the word appears.
We are saying no more than that the word “offensive” in section 471.12 has not been previously considered and there is no authority that “offensive” in that section means hurt feelings or wounded feelings. That is reflective of what the Chief Justice said at paragraph 26 of the judgment at appeal book 87. My friend yesterday also referred to the reply and to the response to our submission at paragraph 19 where we assert the law imposing a significant criminal sanction and this supports a narrow construction of the offence. My learned friend referred to three judgments dealing with this matter. The three judgments to which my learned friend referred ‑ ‑ ‑
FRENCH CJ: This was all to the point that the range of dispositions indicates a wide range of conduct covered.
MR AGIUS: Yes. Well, and to the point that the ‑ ‑ ‑
FRENCH CJ: That is true of any offence. I suppose, any maximum penalty is subject to all the alternatives and the lesser dispositions.
MR AGIUS: Yes, your Honour. That is one aspect of the submission and the reply. What was not revealed yesterday that those three matters which are referred to at this point in the reply all relate to the previous section where the maximum penalty was one year imprisonment and not two years imprisonment so it was before the penalty was doubled in 2002 and that in relation to two of those matters the defendant was found to be suffering from some form of mental disorder and that was taken into account in the fixing of the penalty and, in the third matter, a recognizance was considered because of what was considered to be the need for rehabilitation of the offender. I only have one copy of those judgments but I can have them copied over lunch and distribute them.
FRENCH CJ: Speaking for myself, I am not sure that they are going to be of much assistance ‑ ‑ ‑
MR AGIUS: Not troubled by them, thank you. The next point that my learned friend made yesterday concerned the use by the Chief Justice of the expression “calculated or likely” in formulating that part of his judgment dealing with the meaning of “offensive”. In Coleman v Power at paragraph 193 in the joint judgment of Justices Gummow and Hayne, the judgment records:
But in the context of this provision “abusive” and “insulting” should be understood as those words which, in the circumstances in which they are used, are so hurtful as either they are intended to, or they are reasonably likely to provoke unlawful physical retaliation.
It is our submission that that is probably the source of the Chief Justice’s use of the word “calculated” in the sense of intended or likely and it seems to be no more than a reflection of what fell from your Honour Justice Hayne and Justice Gummow in the joint judgment. As a matter of practice and, indeed, as a matter of law, and this is taken up by the Commonwealth in their submissions, the elements of an offence under section 471.12 can be considered in this way.
In relation to the use of the postal system, that is the conduct, the fault element for that conduct in using the system would be intention and that is a combination of sections 4.1(1)(a) and (2) of the Code and section 5.6(1). The next matter to consider in the section is the circumstance. That is, the circumstance in which the conduct occurs, the circumstance being the use of the service being regarded by reasonable persons in a particular way having regard to all the circumstances, that circumstance by virtue of section 5(6.2), the fault element for that is recklessness.
With respect to the Chief Justice, in formulating the expression “calculated or likely” it is our submission that it is likely that his Honour found that in Coleman v Power which is very much a matter under discussion during the course of the hearing and because he had not been taken to the elements of the offence used the expression “calculated or likely” in the way in which the joint judgment refers to it using common law concepts before we were blessed with this Criminal Code. But in practice, it is our submission that “calculated or likely” would be reflected in an instruction to a jury which reflected “reckless” as to the arousal of significant anger, significant resentment, et cetera.
I have dealt with distinguishing Coleman v Power from the circumstances of this case and the fact that Coleman v Power ought not to be taken to lay down that keeping public places safe from violence is a necessary or essential legitimate end when dealing with the second limb of Lange in every circumstance. It was a relevant matter in Coleman v Power but it is not relevant in every circumstance that will arise. In respect to my learned friend’s reliance upon defamation, we embrace the comments that were made by her Honour Justice Bell.
We would respectfully add one more and that is that my learned friend’s submissions in that regard neglected one significant matter and that is in a prosecution under section 471.12 the jury would need to be satisfied beyond reasonable doubt that the elements of offensiveness were made out, and “offensiveness” as defined by the Chief Justice is a much narrower and, if you like, much higher hurdle than the type of hurt feelings my learned friend was embracing in that submission.
Finally, on the question of – again, dealing with what was said yesterday – the impact of section 471.12 as currently defined by the Court of Criminal Appeal it may be instructive to look at what conduct is not caught by section 471.12 following the judgment of the Court of Criminal Appeal, and that would be conduct involving the use of a postal service, involving robust debate relating to government and political matters, the use of insults, the use of invective, the use of satire, the use of sarcasm, up to a point which fell short of recklessly arousing significant anger, significant resentment, et cetera in the mind of a reasonable person in all of the circumstances.
When one looks at the events in that way, there is almost no room for a chilling effect, and if we are going to speak about “chilling effect”, we have to speak about it when measured against the offence as defined by law, not in some amorphous way. If one looks at the offence in that way, and people would be taken to know the law, it would not cover robust debate, insults, invective, satire, sarcasm, even abusive language, even confronting ordinarily offensive language. One can see that the room for a chilling effect is, in our respectful submission, de minimis.
My learned friend, Mr Bennett, yesterday spoke of the application of the principle for which we contend, noscitur a sociis. He put a proposition which is unsupported by any authority at page 10 of the transcript from yesterday at line 330:
The second matter is that there is a noscitur a sociis argument put against us that says when you bracket “offensive” with “menacing” and “harassing” one gets a more serious character. One would not normally use the noscitur a sociis principle to determine questions of degree. It is used rather to determine questions of kind but quite apart from that we know from the legislative history –
et cetera. President Allsop dealt with the concept of noscitur a sociis at paragraph 73 of his judgment at appeal book 103, which we embrace, with respect. In the course of that he made reference to the well‑respected text book, DC Pearce and RS Geddes Statutory Interpretation in Australia (7th Ed, 2011) and we have copied the relevant portions and I can provide those. Nowhere, there, will one find any support for the proposition that my learned friend, Mr Bennett, put yesterday.
This brings me to what is our last submission. It is dealt with at paragraph 7 of our outline and it concerns the way in which the Court might dispose of this matter if the Court was against us but also was minded not to invalidate the section, or not to sever the word “offensive” from the section. In the event that the Court determine that the section was not invalid, and also that the section was not reasonably appropriate and adapted, but that the section should be read so as not to apply to statements which are protected by the implied freedom, in our respectful submission, it would not be appropriate to quash the indictment. That is the remedy that is sought. The appropriate course, in our submission, would be to leave it to the trial judge to determine which, if any, of the statements in the letters are not protected by the implied freedom and are available to support a charge.
HAYNE J: If the indictment is quashed, does that preclude laying of a fresh indictment if the other circumstances that you posit in paragraph 7 were to exist?
MR AGIUS: Provided a verdict was not entered, I think a fresh indictment could be filed.
HAYNE J: Quashing the indictment would not have a verdict, would it?
MR AGIUS: Not of itself. But, there would be no legal basis to quash the indictment if there were still an offence which was properly charged in the indictment which may or may not ‑ ‑ ‑
HAYNE J: Well, as framed, the indictment alleges the whole letter, does it not?
MR AGIUS: Yes.
HAYNE J: You want us to recast it. Why should we do that? If there is no bar to the prosecution reframing its indictment in the circumstances you posit, why should the Crown not go about its task according to its likes, rather than have us do it?
MR AGIUS: Well, we would not seek to have this Court do it. We would seek that that would be a live issue before a trial judge and that would not necessitate the quashing of an indictment. That is our only submission in relation to that, that something short of a declaration of invalidity would still leave the indictment as a valid indictment, in our respectful submission, and would not justify a quashing of the indictment. Your Honours, otherwise we rely upon what we have said in our written submissions. We
also adopt and support what we anticipate the Commonwealth will say in their submissions and what they have said in their written submissions. Unless there is any other matter that I could assist the Court with.
FRENCH CJ: Thank you, Mr Agius. Solicitor‑General for New South Wales.
MR SEXTON: If the Court pleases. We propose to make some short submissions on the second Lange question, hopefully without covering the same matters as has been dealt with by my learned friend, Mr Agius. The first step of course is to establish the true meaning of the relevant legislative provision and, in this case, particularly the word “offensive”. There are a number of factors we say that support a meaning for the term “offensive” in this legislative context that requires a reaction from the recipient of the communication that goes well beyond disagreement with or disapproval of the sentiments expressed in the communication.
The first of those factors that we point to is that it is an offence punishable by imprisonment for up to two years. It has already been referred to but suggesting, we would say, a significant degree of criminality. It cannot be conclusive, of course, but it is a factor that we would say that can be taken into account.
Secondly, even in those statutes, once quite common and carrying much lesser penalties dealing with offensive behaviour, the term “offensive” was construed by the courts much more narrowly than its sometimes colloquial, perhaps its dictionary meaning. Your Honours have been referred to Ball v McIntyre (1966) 9 FLR 237 but I want to say two further things about it. It concerned the Police Offences Ordinance 1930 (ACT).
At page 243 in relation to the term “offensive” Justice Kerr said that it was behaviour likely to arouse significant “emotional reaction”. That largely has been picked up by Chief Justice Bathurst at paragraph 44 of the judgment below which is at page 93 of the appeal book and Justice Allsop at paragraph 83 of that judgment which is at page 108 of the appeal book. Justice Kerr rejected the notion at 241 that it was sufficient to constitute offensive behaviour if it could be said that the conduct was “hurtful, blameworthy or improper, and thus may offend”.
He said at 242 to 243 that he adopted the view of Justice O’Brien in the Victorian case of Worcester v Smith, a 1951 decision which is not on our list, but it is referred to in the judgment by Justice Kerr where Justice O’Brien said that for behaviour to be offensive within the meaning of what was the Police Offences Act 1928 (Vic). It must be:
calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.
Justice Kerr said he was adopting that, although it may be that arguably his formulation is a narrower one. It would not extend, for example, to wounded feelings which Justice O’Brien refers to in his remarks. As it happens, of course, in relation to the statute in this case the notion of the reasonable person is spelt out so that it does not need to be implied in the way that it was done by Justice Kerr and Justice O’Brien.
Third of those factors and this was also suggested by Justice Kerr in Ball v McIntyre because at 243 he said that that meaning that he adopted was affected by the fact that the words used in the ACT statute, in addition to “offensive”, were “threatening, abusive and insulting”. In this case here we have the terms “menacing”, “harassing”, “offensive” and so it is a question of the meaning that can be taken from the context. This was essentially a point that was made also by Justices Gummow and Hayne in Coleman v Power at paragraph 177 of their judgment in that case.
The fourth factor we point to is that the construction for which we contend would be supported by section 15A of the Acts Interpretation Act 1901 (Cth) because that construction, we say, would not exceed the legislative powers of the Commonwealth and as Justices Gummow, Hayne, Heydon and Kiefel said in Gypsy Jokers (2008) 234 CLR 532 at paragraph 11, if different constructions appear to be available, the construction to be preferred is the one that “would avoid rather than lead to a conclusion of constitutional invalidity”.
So starting with that relatively narrow construction of the term “offensive”, one then goes to the elements of the second Lange question and perhaps bearing in mind initially that that second question is posed in this case in relation to a law that does not have as its purpose the restriction of communications on government and political matters, but is one that merely affects those communications incidentally. So, in those circumstances, it does not follow of course that the second question must be answered yes, but according to the authorities it makes an affirmative answer more likely.
As to the legitimate end in this case, it can be characterised, we would say, as the protection of the use of the postal service from certain kinds of distressing conduct. I appreciate, as the Chief Justice has pointed out, that this provision is applicable as well to similar but private postal businesses but, of course, predominantly it refers to Australia Post and draws in those similar services because they are providing, in a sense, the same service. Australia Post has a statutory duty. We have set out in paragraph 33 of our written submissions, a statutory duty to provide ‑ ‑ ‑
FRENCH CJ: How can that be relevant to the legitimate end, given the breadth of the application of the section and the range of services to which it applies? You say predominantly Australia Post. There is a very large quantity of business involved in delivering parcels and packages and correspondence. There are some very big organisations, apart from Australia Post, without any statutory factor.
MR SEXTON: Of course, your Honour, but in a sense the point of the statutory provision here is that they are providing the same service. Really, the point is that I will come to is that it is going into persons’ homes in a particular way that separates it from some other forms of communication. The postal services, whether conducted by Australia Post or in modern times also by private operators, we would say historically has always provided and played a very significant role and still does today in both the urban and the rural communities in this country.
The significant feature of that service is that it delivers letters – and my learned friend, Mr Agius, has talked about this – directly into the homes and, on some occasions, the offices of members of the public so that in normal circumstances recipients will open a letter that is addressed to them and will at least begin to read its contents.
FRENCH CJ: It is not limited to the case of a letter addressed to somebody. I mean, one could have, for example, the use of either Australia Post or a private courier service answering one of the constitutional descriptions to distribute brochures put out by a Member of Parliament attacking a candidate who is standing against that Member of Parliament for election, and perhaps in a language which might be thought to be offensive. What I want to get away from is particular examples like the opening of the letter and the shock that follows which do not really tell us about the construction of the provision, given its breadth.
MR SEXTON: Well, it is not really about the construction. These submissions assume a particular ‑ ‑ ‑
FRENCH CJ: About the legitimate end, I am sorry.
MR SEXTON: Yes, the legitimate end. Well, except for this, your Honour. That this case concerns letters, of course, but it seems to us that the prospect of this section being invoked or being applicable to, for example, a local newspaper or political leaflets, the sort of advertising material that now deluges local letterboxes, but it would be a very unusual publication that would, we would say, cause this section to be invoked, that in fact the letter that is opened and cannot be avoided.
The traditional form of the post, if I can put it that way, is perhaps really what this legislative provision is directed to. To that extent we would say that that is a legitimate end. Your Honour is quite right to say that it would not only necessarily apply. There could be circumstances where it could apply to other forms of material, but we use that as, in a sense, the most obvious case.
FRENCH CJ: That might be a convenient point, Mr Solicitor. We will come back at two o’clock.
AT 12.46 LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.01 PM:
FRENCH CJ: Yes, Mr Solicitor.
MR SEXTON: If the Court pleases. Could I just go back for a moment to the matter that was raised by your Honour the Chief Justice just before the adjournment? It seems to us that the relevant distinction is not between Australia Post services and private services, but between what might be described as individual communications and other types of communications. In other words, something is directed to an individual, however it comes to the household as opposed, for example, newspapers and advertising material.
We draw that distinction because it seems to us that it would be very difficult in the case of those latter materials to get to the required emotional reaction, assuming for the moment the standard that has been set by the judges in the Court of Criminal Appeal. It would be very unusual material that could somehow produce that reaction if it were not directed to a particular individual in the form of some kind of letter or similar type of publication.
It may be in that context that Chief Justice Burger was speaking. We have referred in our outline to Rowan v United States Post Office 379 US 728, and at 738, Chief Justice Burger – and I will just quote a couple of sentences from him – this was a case about advertising material, I think promoting what was said to be ‑ ‑ ‑
HAYNE J: It was a case about stop lists. You could tell the authorities you did not want to receive material.
MR SEXTON: That is right, your Honour, and supposedly erotic material that you could tell the postal authorities that you did not want to get. I think it was the promotion of the material rather than the material itself that was the subject of the proceedings, so it was a First Amendment case in that sense.
But, Chief Justice Berger said at 738 that:
If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even “good” ideas on an unwilling recipient. That we are often “captives” outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere . . . The asserted right of a mailer, we repeat, stops at the outer boundary of every person’s domain.
There is a sense of that in this case, we would say. We have suggested in our written submission, that some of the possible reactions by the recipients of letters of this kind would – Justice Hayne says it may be a very unusual case for retaliatory violence, but a depressive illness triggered, or accentuated, motivating self‑harm. Those possible reactions, at least in part, are the result of material entering a person’s home and so illustrate, we would say, the difference between those kinds of communications and ‑ ‑ ‑
HAYNE J: I did not think it suggested that this provision, on its proper construction, confined the word “offensive” to offensive so as to inflict recognised injury – be it physical or psychiatric. I do not think that construction has been advance.
MR SEXTON: No, that is quite true, your Honour. But, they are examples of an extreme emotional reaction. There could be, of course, significant emotional reaction that is not as high on the scale. Now, if those submissions are accepted and the notion of the legitimate end, we would say that the provision is reasonably appropriate and adapted to that end and it is done in a manner that is compatible with the prescribed system of government.
If all of those previous submissions in a sense were to be rejected and there was an aspect of invalidity about section 471.12, we would say that it could be read down in the way that was done by Justice McHugh in Coleman v Power, paragraphs 107 to 111. It does not seem to us that it could be right that the provision would be wholly invalid, and if it is not
then a form of reading down – and that would be to exclude communications that relate to government and political matters.
There would then have to be, of course, for the purposes of any prosecution some kind of analysis of whether the letters here in whole or in part constitute a discussion of political and government matters. In that context, it seems to us that the indictments could not be quashed without some kind of analysis of the letters themselves to that end.
All of the counts, I think from recollection, relate to offensive material except there is one – count 3 – I think which relates to harassing – the term “harassing” in the section. But it seems to us that if one comes to the question of invalidity and reading down, then that could only be done on the basis of the actual content and the character of that content and so that that might not be necessarily a task for this Court. Unless there are any other matters, your Honour, those are our submissions.
FRENCH CJ: Thank you, Mr Solicitor. Mr Howe.
MR HOWE: May it please, could I ask your Honours to go to the section itself, which is conveniently extracted in the court below at appeal book page 77 in paragraph 3 of the Chief Justice’s judgment. It is immediately apparent that there are two physical elements in the section. The first and decisive and the anterior physical element which governs the coverage of the entire section is use of a postal service or similar service, and the second physical element is the circumstance or result which is described in paragraph (b) of the provision.
The fault element that accompanies paragraph (b) is recklessness, which I will come back to in a moment, but in our submission the prohibition here operates by reference to an activity or a mode of communication within the formulation of Chief Justice Mason in the Australian Capital Television Case that was the subject of some treatment before lunch and which is referred to in the first respondent’s written submissions at paragraphs 43 and 44. We emphasise that no offence whatsoever is created, with respect, to other modes of communicating exactly the same material, such as hand delivery by the sender or an associate of the sender, as Justice Hayne pointed out.
In our submission, this provision in this case no more targets ideas or information within Chief Justice Mason’s formulation, as did the provision in Coleman’s Case, which prohibited or regulated insulting communications and, as we understand it, no member of the High Court in Coleman’s Case suggested that the provision there required the sort of compelling justification that Chief Justice Mason had in mind with respect to provisions that actually target ideas or communications. We do not wish to say any more about that but could I turn to the mental element in respect of the second conduct - physical conduct element. The first is quite simple. The sending or the use of the post must be actually intentional.
But as to paragraph (b) of the section that is satisfied only by intention, knowledge or recklessness and we do invite the Court’s attention to how recklessness is defined. There is no need for your Honours to go to it, but it is set out in section 5.4(1) of the Code and a defendant will be relevantly reckless, with respect to this provision, paragraph (b) thereof, if they are “aware of a substantial risk” that paragraph (b) will be fulfilled and “having regard to the circumstances” they actually know the defendant is unjustified in taking the risk.
Now, with respect, when one has regard to both the physical and the mental elements of the offence, it is apparent that, contrary to the submissions of the appellants, the reach of the provision is tightly confined or tightly qualified. At the very least, there must be an objectively unjustified and advertent disregard by the defendant of a substantial risk of the result or circumstance described in paragraph (b) existing or coming about.
Now, if I could return to the physical element in paragraph (a), it makes apparent, in our submission, that the section is wholly directed to and limited to uses of postal services; so much is clear. Indeed, the whole of the relevant division relates to postal offences and, of course, the major service provider with respect to postal services, in our submission, is the Australian Postal Corporation which is a statutory authority, but it does also include private postal service operators.
But in our submission, what is tolerably clear is that, whether a postal service provider be public in the case of the corporation, or private, all such postal services were properly regarded by the legislature as serving important public interests and, in that regard, it is relevant to have regard or to take into account the title of Chapter 10 itself in which this provision is located and that title is “National Infrastructure” and regard is permitted to the title of the chapter by virtue of section 13 of the Commonwealth Acts Interpretation Act. So what the legislature has done in treating private postal service providers is to regard them as part of the national infrastructure of postal services. Could I, at this point, ask the Court to go to the second reading speech which was on our list of authorities?
HAYNE J: With a view to demonstrating what?
MR HOWE: With a view to demonstrating the purpose of the section, including, with respect, to private postal service operators. The second reading speech of the Senate is to be found in Hansard parliamentary debates, 11 March 2002, at page 439. If your Honours go to the bottom of the left‑hand column on that page, the penultimate paragraph, your Honours will see that it is said by Senator Campbell:
The proposed new offences cover the misuse of any postal, courier or other similar service within Commonwealth constitutional power and not just Australia Post.
Then if your Honours could go over the page to page to page 440, and in the fourth paragraph on the left‑hand column it said:
The offence of using a postal or similar service to menace, harass or cause offence is to be extended to all postal and other like services and the penalty increased from 1 to 2 years imprisonment.
The proposed offence will cover material designed to make a person fearful about his or her safety or well‑being as well as material containing offensive or abusive language.
Then toward the bottom of that column, there is a heading “Conclusion” and it is these two paragraphs, in particular, that we would ask your Honours to note:
Protecting the safety, security and integrity of Australia’s information infrastructure, including postal and courier services, is a priority for this Government.
The measures contained in this bill will ensure that these important –
and we would underline the word “important’ –
communication services are not compromised –
and we would underline the words “not compromised” –
by irresponsible, malicious or destructive behaviour.
Now, with respect, it does not over‑reach a proper understanding of the section to regard one aspect of the destructive behaviour that underpins the introduction of the provision as being the destruction of confidence of users in postal services generally.
KIEFEL J: It would appear from the concluding paragraph to that conclusion that the provision of “tough penalties” and that it “will be vigorously prosecuted”, that there is an element of deterrence intended.
MR HOWE: Exactly so.
KIEFEL J: That is part of the end, you would say?
MR HOWE: Yes, your Honour, exactly so because, if the confidence of users is not maintained in these important national infrastructural services, then they may be unwilling to participate as recipients. And, of course, one of the distinctive features of postal services ‑ ‑ ‑
HAYNE J: Sorry, you will have to explain in much simpler language what you are saying. I do not understand this notion of “their participation as recipients” will be what? Interrupted, how?
MR HOWE: Well, your Honour, if people get to a point where they become fearful or apprehensive about going to their mail box then in those circumstances, in our submission, the integrity of postal services, at a national level, may be compromised particularly if the effect of the proscribed ‑ ‑ ‑
FRENCH CJ: What does that mean in the concrete? They will not open their mail boxes and they will overflow or what?
MR HOWE: Well, they may just not have mail boxes, they may not have letter boxes, they may be declined - they may decline to open their mail, even if they take it out of the mail box. They may, as it were, adopt a completely passive inert approach to receipt of mail and that will have a degrading effect upon the facilitation of communication through the post.
FRENCH CJ: I certainly get a lot of mail I do not open. Most people do, I think.
MR HOWE: Yes. Although, your Honour, it is possible for very widespread, indeed massive communication, to be undertaken through the post by letter and it is possible for large numbers of people to be sent menacing, harassing or offensive communications of a kind which may discourage them from them willing to receive mail generally. In our submission, what the second reading speech makes clear is that the purpose of the provision – one purpose – was to protect the integrity of the system by protecting the safety of users.
That must be understood most directly as recipients but in our submission if recipients are discouraged from willing receipt of mail that has an adverse effect upon the willingness of senders as well to use postal services as a means of communication. As to distinctive features of the post, we rely on the reasoning of the court below, particularly in relation to the concept of recipients being a captive audience. But we also rely upon the feature I have just described which has been the subject of consideration in the US cases, namely, that one feature of postal services is that facilitating the sending of communications through the post depends upon facilitating the willingness of recipients to receive post.
In relation to the importance of the post, generally, could I ask your Honours to have regard to a decision of this Court in Bradley v The Commonwealth (1973) 128 CLR 557. It was included in an additional bundle that we have provided at tab 3. This concerned the power of the then Postmaster‑General to withdraw postal and telecommunication services from a recipient. The relevant passage is to be found in the joint judgment of their Honours Chief Justice Barwick and Justice Gibbs at page 556. At the top of the page toward the end of the second line their Honours said that:
there can be no doubt that the postal and telephone services are among the most important amenities available to the people of the Commonwealth, and are essential to the conduct of trade and commerce as well as to the enjoyment of any real freedom in the dissemination of information and opinion.
Then toward the bottom of page 567 their Honours noted that:
The Postal Regulations made under the Act recognize even more explicitly that there is a duty to receive and transmit mail that complies with the requirements of the Act and regulations;
Now, in our submission, the legislature could enact a provision that would relieve Australia Post, for instance, of a duty with respect to stipulated articles including objectively offensive articles, but we would ask how would any such provision be effectively implemented? It could not. And the best that the legislature can do is to really attach a consequence to someone who sends an article through the post that breaches a stipulated standard.
Your Honours, in this regard we very much endorse the treatment of the importance of the role fulfilled by Australian Postal Corporation that is given in the New South Wales Attorney’s submissions at paragraphs 33 to 34. I will not take your Honours to those, but in those paragraphs the New South Wales Attorney refers to various provisions that do indicate that the legislature attached importance to concepts such as participation, accessibility and the facilitation of communications of all kinds of mail to all kinds of recipients.
Those points, in our submission, are reinforced where regard is had to the legislative provisions that we have also included in the bundle, and there is not time to take the Court through them, but they consist of samples of various Commonwealth and State laws concerning the use of postal services, particularly provided by Australia Post or its predecessor, in contexts such as the maintenance of electoral rolls and voting in elections through the post, jury service, interactions between government and members of the public such as the serving of notices and claims under the social security legislation and the child support assessment legislation, service and execution of court process and the internal management of corporations.
Now, all of those sorts of activities are facilitated one way or another by the maintenance of a national postal service and they all depend upon, or are predicated upon, a legislative presumption almost of reliability and integrity with respect to the performance of postal services. Could I ask the Court in this regard to go to a decision of a United States Supreme Court in Lamont v Postmaster General 381 U.S. 301, which is an old case going back over 50 years.
The facts in this case are interesting, but I do not need to detain your Honours. It did relate to a regulatory regime designed in a way to intrude upon people receiving communist propaganda, but the particular passages we would ask the Court to go to appear firstly at page 305, and Justice Douglas delivered the opinion of the court and about six lines from the bottom, his Honour said:
As stated by Mr. Justice Holmes in Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 437 (dissenting): “The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues . . . ” –
Now, that might be prayed in aid against us, but in fact, we deploy it as part of our case, because protection of the reliability and integrity and public confidence in the mail itself facilitates the transaction of communications, including the exercise of so‑called rights of free speech. We would also ask the Court to go to page 308 at about point 7 on the page. It is the fourth last line from the middle paragraph, where it is stated – and this is something we very much rely upon –
The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.
With respect, that captures what is both a simple but also a complex dynamic. The facilitation of communications which people choose to send, in our submission, does significantly depend upon the willingness of people to receive those communications. The nature of postal services is such that tensions can necessarily arise between the objectives of the sender and the willingness of the recipient.
Unsurprisingly, legislation such as section 471.12 seeks to strike a balance between the divergent interest which might arise between a sender and a recipient. In our submission, the elements of the offence in this case are constructed on the uncontroversial proposition that recipients do not want and are entitled to have…..attached to the sending to them of objectively offensive material in circumstances where the sender intends to create that very offence, or is recklessly indifferent in the sense that they advertently ignore a substantial risk of which they are aware and do so in circumstances which are not justified. Could I next ask the Court to go to Rowan’s Case, which the Court has just been taken to, but we, with respect, want to rely upon some additional passages.
HEYDON J: Can I ask a question? These American authorities, were they in your written submissions?
MR HOWE: I am not sure. They were on our list of authorities, your Honour.
HEYDON J: Why were they not in your written submissions? The Court’s time is very limited this week. There are a large number of other counsel after you.
MR HOWE: Yes.
HEYDON J: I am just speaking entirely for myself but I think you should use it economically and in a direct fashion.
MR HOWE: Yes, I will do my best, your Honour. Your Honour, the passages we would invite the Court’s attention to, appear at the top of page 736 as to the importance of the post. Then at about point 5 on page 737, where the Court noted that:
Nothing in the [US] Constitution compels us to listen to or view any wanted communication, what‑ever its merit –
et cetera. Now, your Honours, what emerges from consideration of the role and features of the post is this. The legislature has not chosen to criminalise annoying, vexing, irritating, discourteous, hurtful or unseemly uses of the most. In our submission, the reason for that is clear. Had the legislature pitched the standard, as it were, that low it would have the reverse effect of, perhaps, undermining public confidence in the post. So, in our submission, section 407.12 strikes a balance between senders and receivers which is designed to maximise the integrity of the post.
Your Honour the Chief Justice had occasion to interpret the word “offensive” in a different context which struck a different sort of balance between competing interests in Bropho v Human Rights and Equal OpportunityCommission (2004) 135 FCR 105. I will not ask your Honours to go to it, but we particularly rely upon their Honours’ reasoning at pages 124 – I am sorry – 123 to 124 and note that, in that case, your Honour did conclude that the word “offensive” was intended to comprehend something with profound and serious effects not likened to mere slights. With respect, we submit, that your Honour’s reasoning depending particularly as it did on fulfilment of purpose applies here.
FRENCH CJ: That was in the context of the application of the freedom of speech guarantee under the ICCPR reflected in the Racial Discrimination Act and, I think, the authority referred to as Handyside which was concerned with the European Convention on Human Rights – a somewhat different field of discourse from this.
MR HOWE: It is. It is. Of course, the provision of the Racial Discrimination Act under consideration in that case, applied in a public and not in a private context. The point which we seek to establish by consideration of the second reading speech and these sorts of cases that have directed attention to the importance of postal services is the protection of their integrity cannot be regarded, in our submission, as a meaningless slogan.
In that regard, we very much embrace the reasoning of President Allsop in the court below at paragraph 78. There is no need for your Honours to go to it. It is at appeal book page 105. In our submission, postal services do not need protection against the lower registers of use that might otherwise be captured by very expansive approach to the meaning of “offensive”.
So far as the expression “menacing, harassing or offensive” is concerned, we rely principally upon our submissions at paragraphs 9 to 15. We note that in Coleman v Power five members of this Court declined to give the word “insulting” its ordinary wide meaning and several members attached significance to the collocation of the word “insult” with other words, forming part of a composite expression, which is the position here. We do not say any more about the history, beyond what has been set out in our submissions, and the other matters that we have listed in our oral outline in paragraph 1 we will say no more about.
In relation to paragraph 2, in our submission, properly construed, offensive uses of postal services are those which are of such a quality as may undermine public confidence in those services by, for example, making recipients fearful or apprehensive about receipt of postal items. Not as an element of the offence, but as informing the construction and the calibration of the word “offensive” which operates, in our submission, to narrow the reach of the section very importantly, for Lange limb purposes. In our submission, the Chief Justice and President Allsop were correct to pitch offensiveness to the use of the level of engendering significant emotional reactions objectively assessed.
Such reactions if provoked, in our submission, were regarded by the legislature as entailing a meaningful risk to the integrity of postal services which was to be guarded against. One such risk was deterring people from using the services, as suggested yesterday by Justice Kiefel. On the question of validity, in our submission, the end for the Lange test, the legitimate end, the end of section 471.12 is not, as the appellants submit, to ensure the civility of discourse. Nor is the end to guard against significant emotional reactions. Nor is the end to elevate standards of private communication. The end, in our submission, is protecting the integrity of postal services by protecting users.
Postal services themselves are the subject of the section. Their protection was regarded as important, as indicated in the second reading speech and the according of that protection by the enactment of this provision, in our submission, is a legitimate end. The appellants, having interpreted “offensive” in a particular way then deploy that meaning, that is of a word in the provision, against the Lange limb and find it wanting, particularly by reference to what fell from Justices Gummow and Hayne in Coleman’s Case at paragraph 199.
We will come back to that briefly, but the argument of the appellants, in our submission, is based upon characterising the end or purpose of the section as being to guard against unseemly communication or the engendering of significant emotional disturbances as though that were the ultimate end and ‑ ‑ ‑
FRENCH CJ: In any event, you reject that construction.
MR HOWE: We do. That construction, with respect, is one which is tendentious in the sense that it suits the appellant’s arguments in relation to the implied freedom, but in our submission it actually involves a distortion of principle and precedent. In particular, it confuses what might be a collateral effect of legislation with its legitimate end in the Lange sense and this Court has emphasised many times that the end in question must be
discerned from the statute. Here the end is not to criminalise any form of communication per se or to elevate standards of communication. The end is the protection of postal services and in turn the securing of the important functions which they advance.
In our submission, the reasoning in Coleman’s Case does not spell the invalidity at all of this section and indeed the reverse is true. In Coleman’s Case a majority of this Court interpreted the word “insulting” in a particular way in light of and in order to keep faith with the purpose of the provision, and so construed and narrowed the provision was found to be compatible with the implied freedom. Now, we accept that whilst public places and public order were the frames of reference under consideration in Coleman’s Case the frame of reference here is different. It is the use of particular facilities by members of the public, including a public facility, all of which comprise part of Australia’s national infrastructure.
Now, in relation to what their Honours Justices Gummow and Hayne said in Coleman’s Case at paragraph 199 in our submission they simply did not say that a law which has the effect, perhaps collaterally, of enhancing the civility of discourse will fail the Lange tests. Indeed, what we would ask ‑ ‑ ‑
FRENCH CJ: That is a pretty obvious point, Mr Howe.
MR HOWE: Yes.
FRENCH CJ: I just get a sense we are getting into sort of groundhog day territory here. If you are going to say something try to identify something that really has not been put to us before insofar ‑ ‑ ‑
MR HOWE: Yes. We would just ask the Court to note that of course the provision in Coleman’s Case may have had the effect of enhancing the civility of discourse because of criminalised insulting communications.
FRENCH CJ: That is an obvious point.
MR HOWE: Yes. In relation to the first limb of Lange’s Case we are content to rely on our submissions and, in particular, we have distilled the particular references we rely upon in our oral outline. In relation to the second limb in Lange’s Case again we are content to rely upon the written submissions supplemented by the brief additional points that appear in our oral outline. May it please, those are our submissions.
FRENCH CJ: Thank you, Mr Howe. Solicitor‑General for South Australia.
MR HINTON: If the Court pleases, I have got nothing new to add. All we do in our oral submission is attempt to step through the first limb of the Lange test. I do not really want to add to it. Can I ask the Court to take it into account with our written submissions? We attempt to give content to that first limb and no more to supplement our written submissions. If the Court pleases, those are our submissions.
FRENCH CJ: Thank you. Solicitor‑General for Victoria?
MR McLEISH: If the Court pleases. I wish to first make some submissions about the meaning of the references in the authorities to an effective burden in the context of the first limb of Lange. The Court will be well aware that Lange brought together different streams of authority about the implied freedom and emphatically founded the implication on the system of representative and responsible government for which the Constitution provides rather than more abstract or top down notions of responsible and representative government.
What is significant for the purposes of the first limb is that this meant tying the freedom to the right of electors to communicate – to choose their representatives and the responsibility of the executive to those representatives in Parliament. Relevantly, the Court in Lange held that the freedom was:
limited to what is necessary for the effective operation of that system of representative and responsible government –
for which the Constitution provides. That appears at page 561 of Lange 189 CLR 520 at point 8. But I wanted to take the Court to page 567 at point 5 where the implied freedom is tied most firmly to the actual provisions of the Constitution on which it depends. Halfway through the page the Court says:
To the extent that the requirement of freedom of communication is an implication drawn from ss 7, 24, 64, 128 and related sections of the Constitution, the implication can validly extend only so far as is necessary to give effect to these sections –
and discarding statements in earlier cases the opposite to a different effect. We submit that in seeking to give content to the word “effective” as it is used in Lange in relation to the first limb, it is useful to go back to the textual underpinnings of the implied freedom. I have referred to page 560 of Lange. I will not take the Court to it. In the middle of the page there though there is a reference to Justice Dawson’s judgment in the Australian Capital Television Case that I did want to take the Court to briefly, 177 CLR 106.
The Court refers to Justice Dawson’s judgment at page 187. Justice Dawson, the Court will recall, along with Justice McHugh, took a view of the implied freedom prior to Lange which was textually based, in particular on sections 7 and 24 and it is fair to say, I would submit, that their view is the closest of the earlier decisions to the view that prevailed in Lange. At page 187 of the Australian Capital Television Case, firstly, Justice Dawson said at about point 2 of the page:
Thus the Constitution provides for a choice and that must mean a true choice. It may be said – at all events in the context of an election – that a choice is not a true choice when it is made without an appreciation of the available alternatives or, at least, without an opportunity to gain an appreciation of the available alternatives.
At the end of the paragraph, his Honour concludes –
Thus an election in which the electors are denied access to the information necessary for the exercise of a true choice is not the kind of election envisaged by the Constitution. Legislation which would have the effect of denying access to that information by the electors would therefore be incompatible with the Constitution.
There is an emphasis there on the overall effect on the elections for which the Constitution provides. We submit that that is important in the context of identifying what sort of burdens engage the second limb of Lange. Justice Dawson returned to this subject after Lange in a passage which we submit is illuminating, in Levy v Victoria 189 CLR 579 at pages 607 to 608.
Of course, Levy was heard with Lange and the judgment was delivered shortly after the judgment in Lange. What his Honour said at page 607, consistently with his Honour’s judgment in the Australian Capital Television Case and indeed referring to page 187 of that judgment in footnote 99, and the judgment in Lange at page 560, was, at the bottom of page 607, his Honour said:
The Constitution does not erect a guarantee of freedom of communication in the same way as it erects a guarantee of freedom . . . under s 92 –
Skipping a few lines –
Sections 7 and 24 and related sections require free elections and the question for the Court in a case such as this is whether the impugned law precludes the holding of elections of that character.
Over the page, his Honour says –
It is, of course, possible to approach the matter in more than one way –
He then sets out the two-question Lange test, and goes on –
There can be no objection to approaching the matter in this way, provided that it is borne in mind that, putting to one side the situation under s 128, the ultimate question is whether the law is compatible with the elections which the Constitution requires. It is in those elections that the representative government and, ultimately, the responsible government for which the Constitution provides find their source. As I have said, the circumstances of those elections must be such as to enable the people to make a free and informed choice –
going back to the reference in ACTV about being aware of the available alternatives. We submit that that approach which, in effect, can be read as a synthesis of the two limbs of Lange requires that the burden on the freedom to communicate must be looked at as an overall question, rather than ‑ ‑ ‑
HAYNE J: Do you lay some emphasis on what is said at 608 of Levy at about point 8 of the page, the last three or four lines of the paragraph:
commensurate with reasonable regulation in the interests of an ordered society.
MR McLEISH: Yes, your Honour. That would go to the second limb.
HAYNE J: And is it relevant in this respect to observe that the use of postal or like services is regulated, whereas subject to the other examples which counsel have provided, the civility of discourse and giving of offence, even serious offence, is not otherwise regulated?
MR McLEISH: Perhaps may I come to that in relation to the second limb, your Honour?
HAYNE J: Of course.
MR McLEISH: I would submit that is a question of the proportionality, as understood under Lange. My submission in relation to the first limb is that the test requires looking at the overall burden on the freedom of communication and that is consistent, it is submitted, with what the joint judgment says in Wotton and I will not take the Court to it, at paragraph 25, expressing the test in terms of the effective burden on the freedom, rather than on particular communications. Also what your Honour Justice Kiefel says in Wotton at paragraph 80 about a burden on the freedom to communicate overall, or the freedom generally.
Further, it is submitted, because the whole purpose is to protect the freedom of choice of electors at elections and the related institutions of government, the burden must be real, meaningful and not insubstantial. That is because those institutions are sufficiently robust not to be in protection from trivial burdens on their freedom. We adopt, with respect, in that regard what your Honour Justice Heydon says in Wotton at paragraph 54 and the test of real, meaningful and not insubstantial burdens. In our submission, that is what the word “effective” must be taken to mean in the first limb of Lange. In the present case, and I will try and avoid duplication of what has gone before, we submit that if there is any burden of that kind imposed on the freedom by this provision it is very slight.
I just want to highlight four aspects of the section in support of that submission. The first physical element of the section is use of a postal service. That involves looking at more than what is sent. It is submitted it involves identifying the recipient, the sender, the relationship between them, whether the letter or article is sent anonymously and whether it is requested. All of those are aspects of the use of the section.
For example, the same letter sent to individuals or to politicians may constitute quite different uses. It is noteworthy in the present case that the letters in question were sent to politicians, as well as to the families concerned and there are no charges laid in relation to sending the letters to the politicians. Those are different uses submitted of the postal service. Second and closely ‑ ‑ ‑
FRENCH CJ: Different uses or are they different ways of using?
MR McLEISH: Each would be a distinct use, it is submitted, your Honour, for the purposes of the section. The section ‑ ‑ ‑
BELL J: Your point is it is the use that is proscribed?
MR McLEISH: It is the use that is proscribed yes, your Honour. Perhaps to somewhat similar effect the reference to “in all the circumstances” in the section reinforces the relevance of the context. It may well add the extent of the knowledge of the sender about the recipient and their personal circumstances.
The fault element of recklessness has been dealt with by others and we respectfully adopt the submissions of the Commonwealth in relation to that. We did refer, in our written submissions, to paragraph 10. I will not take the Court to it, to the Queensland case of Crowther v Sala (2008) 1 QR 127 135. I mention it only because it supports the construction of the section advanced by the Commonwealth in relation to recklessness in connection with the equivalent provision regarding use of a carriage service elsewhere in the statute.
The fourth element that we wish to emphasise, is the reasonable persons’ test submitted like Justice Kerr in Ball v McIntyre. The reference to that standard requires acknowledgement of the existence of robust debate in Australian politics and an expectation that people will put different and even extreme opinions, and it is submitted even advocating eugenics. Going back to your Honour Justice Bell’s example, the reasonable persons would understand that there are fringe or extreme opinions that may be expressed in Australian politics, in particular, when expressed politicians, the use of the postal service to express those opinions is very different, it is submitted, to perhaps using the postal service to express those opinions to someone in the group considered undesirable and the subject of a eugenics policy, or one can multiply the circumstances. But, the use in each case, it is submitted, must take account of all those matters.
HAYNE J: As a consequence of those four considerations, you urge the characterisation of the burden as slight, or insubstantial, or some equivalent. Is that right?
MR McLEISH: Yes, your Honour. Because, the overall freedom of communication, it is submitted, is not ‑ ‑ ‑
HAYNE J: Is the consequence of the characterisation you urge that there is no occasion to consider end or questions of connection with end?
MR McLEISH: It would be, if accepted, your Honour.
HAYNE J: Is not the consequence of the argument you urge that you strip Lange, as a doctrine, of any content?
MR McLEISH: We submit it is not, your Honour, because what one does ‑ ‑ ‑
HAYNE J: Because you never get to Lange. You chop it off beforehand without consideration of end, without consideration of connection with end.
MR McLEISH: One does not get to the second limb of Lange, it is submitted. One gets to the first limb and when looking at the effect overall on the freedom of communication, the answer one gets, we submit, is that this provision prohibits only certain modes of, or manners of, communication. That is, communication through the post in the first place and, secondly, communication which is offensive as construed. And that, as I submitted, includes having, after recognising the expectation of reasonable persons, that other people will express unpopular and extreme views within certain boundaries.
We submit that the case is mutatis mutandis with the case as your Honour Justice Hayne saw it in Wotton at paragraph [59]. In other words, what the section achieves is a restriction on the manner of communication which does not prevent the substance of what a person wants to communicate from being communicated, including to the public at large. I do not want to take time on the private/public distinction but the nature of this burden is that it affects communications to individuals through the post, even in a series of individuals, but it does not say anything about a person’s ability to communicate the message to the public at large.
It is for that reason we submit the first limb is not engaged. If one gets to the second limb it is submitted that the object of preventing the intrusion of offensive communications into people’s lives through the post is itself a legitimate one. I do not want to repeat or depart from what the Commonwealth said about the integrity of the service but we submit that one does not need to get that far, that it is a legitimate object to prevent the intrusion of offensive communications into people’s lives through the post.
Chief Justice Bathurst used the expression “captive audience” at paragraph 59 of the judgement. That is, of course, an expression with the provenance in the United States cases and it is significant, it is submitted, that even in the context of the First Amendment it is recognised that it is legitimate for the government to protect people in a captive context, metaphorically, from offence. We have referred to several of these cases in our written submissions and I just wanted to take the Court to two of them.
The first is Federal Communications Commission v Pacifica Foundation (1978) 438 US 726. This is a case about public broadcasting. It amply shows the significance of context. A broadcaster saw fit to broadcast a satiric monologue repeating a variety of words that could not be said on the public airwaves. That monologue appears in the report and it is plainly a different context, at least in that regard. I do not propose to take your Honour to the monologue but it was held that that provision breached a Federal Communications Commission law forbidding:
the use of “any obscene, indecent, or profane language by means of radio communications.”
It is a different provision, of course, but in the First Amendment context what the court said is significant, it is submitted. Firstly, at page 746 of the report in the judgment of Justice Stevens his Honour said, five lines from the bottom:
Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. See, eg, Hess v Indiana, 414 US 105. Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context . . . Words that are commonplace in one setting are shocking in another.
It goes on to explain how that is significant at page 748 in the bottom paragraph:
First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home –
There is a reference to privacy, perhaps an inapt reference for Australian purposes, to a possible US privacy right, but at the bottom of the page his Honour continues:
To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.
That passage was approved by Lord Hoffman in a case I do not have time to take the Court to, but it is referred to in our written submissions, R(ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185 and the passage is at paragraph 22. The second case is Frisby v Schultz (1988) 487 US 474. This is a case about picketing outside a private residence and there was an ordinance, as the headnote reveals:
making it “unlawful for any person to engage in picketing before or about the residence or dwelling of any individual” -
and it was declared that the primary purpose of that law was:
to “protec[t] and preserv[e] the home” through assurance “that members of the community enjoy in their homes . . . a feeling of well‑being, tranquillity and privacy.”
Somewhat amorphous rights, perhaps directed mostly at people’s feelings, certainly not any particular harm that they might suffer. The court said in relation to that – it appears firstly at page 484 in Justice O’Connor’s “Opinion of the Court” at the bottom of the page:
One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear . . . the home is different. “That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech . . . does not mean we must be captives everywhere.”
That is citing Rowan which of course is a do not call sort of list case. This is different:
Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions.
That is a word used by the members of the Court of Criminal Appeal below in a number of passages describing the purpose of section 471.12:
Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom.
Perhaps I should go further onto page 487, your Honours. The bottom paragraph there states that:
The First Amendment permits the government to prohibit offensive speech as intrusive when the “captive” audience cannot avoid the objectionable speech . . . The target of the focused picketing banned by the Brookfield ordinance is just such a “captive”. The resident is figuratively, and perhaps literally, trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech . . . Thus, the “evil” of targeted residential picketing, “the very presence of an unwelcome visitor at the home,” –
similar to some of the examples Mr Agius gave –
is “created by the medium of expression itself.”
Similarly here, we submit, the evil here is created by the medium of the post itself. What these cases demonstrate, it is submitted, is that even under the First Amendment, it is recognised as a legitimate objective to protect the captive audience against offensive speech which it is unable or unwilling to avoid. But even aside from –and a fortiori, it is submitted, in relation to the implied freedom, it should not be held, we submit, that a similar objective is not legitimate for the purposes of the second limb of Lange. But even aside from the “captive audience” aspect, it is submitted it is a legitimate object for government to seek to protect the public from offensive intrusions into their lives, whether through the mail or otherwise. In Coleman v Power, Chief Justice Gleeson – I will not take the Court to it, given the time – but, at paragraphs 9 and 32 gave the example of the mother in the park who ought not to have to put up with an insult and held that the risk of retaliation was not a sufficient criterion to apply to determine whether or not that law pursued a legitimate object. We submit the case, again a fortiori, is a fortiori with respect to offensiveness in one’s own home or workplace, which is the context of this case.
That same objective of protecting the public from offensive intrusions into their lives can also be achieved in relation to a carriage service. I have already referred the Court, without mentioning it, to section 474.17 of the Criminal Code, which is the equivalent provision about a carriage service, and we submit that it is legitimate for government to seek to protect people against offensive intrusions directed at them through a carriage service, for example, acts of bullying or cruelty. I do not want to multiply the examples.
Aside from the United States, a document was handed up this morning on behalf of the appellant, Ms Droudis, referring to some overseas legislation, and one of those instances was – if your Honours have that document, it is a three‑page document that was handed up this morning - on the last page of that document, there is set out section 1 of the Malicious Communications Act 1988 of the UK, on the third page at the top of the page. That provision creates an offence, relevantly:
if any person sends to another person:
“(a)a letter, electronic communication or article of any description which conveys –
(i)a message which is indecent or grossly offensive –
reading over some words –
. . . if [the sender’s] purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.”
Arguably, it is submitted, that imposes a lower threshold in section 471.12, given the reference to causing distress or anxiety, irrespective of whether it creates a lesser or, in fact, creates a higher standard and protects speech in a lesser way. I wanted to draw the Court’s attention to a case that considers that. It is the case of Connolly v Director of Public Prosecutions. I think the Court has been given copies of this case, [2008] 1 W.L.R. 276.
This case, as the headnote reveals, was a case in which an anti‑abortion activist sent letters containing images of aborted foetuses to pharmacies which sold the morning after pill, claiming that her purpose in doing so was to protest and educate against abortion. She was charged with offending against the provision that I have read to the Court.
In short, that conviction was upheld. The analysis is, of course, somewhat different. There is a description of the content of the communication at paragraph 11 and I will not read it to the Court. What is significant is that the court needed to analyse this conviction by reference to the Human Rights Convention and while, of course, that involved looking at the individual right of the sender of the communication, it also involved identifying a legitimate purpose and also a proportionality analysis, in ways that are significant for the present case. At paragraph 28, the court looks at the fact that the persons who worked in the three pharmacies concerned were targeted and it is said at line 4:
Just as members of the public have the right to be protected from such material (sent for such a purpose) in the privacy of their homes, so too, in general terms, do people in the workplace. But it must depend on the circumstances. The more offensive the material, the greater the likelihood that such persons have the right to be protected from receiving it. But the recipient may not be a person who needs such protection.
So there is an example of a doctor distinguished from the pharmacists’ employees. Then Lord Justice Dyson goes on:
To take a different example, suppose that it were Government policy to support abortion. A member of the Cabinet who spoke publicly in support of abortion and who received such photographs in his office in Westminster might well stand on a different footing from a
member of the public who received them in the privacy of his home or at his place of work.
That brings in again the question of context and the nature of the particular use, which is also found in section 471.12. At paragraph 32, rather than remit “the case to the Crown Court” the court summarised the way in which the provision operated in this case. Four lines from the bottom:
I would hold that it has been convincingly shown that the conviction of Mrs Connolly on the facts of this case was necessary in a democratic society. Her right to express her views about abortion does not justify the distress and anxiety that she intended to cause those who received the photographs. Of particular significance is the fact that those who work in the three pharmacies were not targeted because they were in a position to influence a public debate on abortion.
We submit that that kind of analysis shows that in the UK as well, it is accepted as a legitimate objective to protect members of the public from offensive intrusions through the post and that laws of that kind can be upheld tolerably readily by reference to a proportionality analysis, bearing in mind the way in which those laws have to be construed.
Given the burden, as we identify it, and especially the way in which the reasonable persons’ test must accept that people in our society express fringe or extreme and unpopular opinions, we submit, the cases in the category described by Justice McHugh in the ACTV Case at paragraph 235. In other words, a reasonable time, place and manner regulation proportionate to protecting an aspect of the public interest.
I am reminded of the question your Honour Justice Hayne asked me. I think I have probably given my best answer to it. I hope I have. That was your Honour’s question about why it was reasonably appropriate and adapted to regulate this content through the post but not otherwise. Perhaps, what I should say in addition to that, the reason I believe I given relates to the captive audience point. The second reason we would place less emphasis on, is that it is a question of Commonwealth power. The Commonwealth has also regulated, as I mentioned, the sending of similar material through a carriage service. So, it is not merely through the post. If the Court pleases?
FRENCH CJ: Thank you. The Solicitor‑General for Western Australia.
MR DONALDSON: If your Honours please. For the purposes of our brief oral submissions this afternoon, your Honours, we proceed on the basis that the construction of the relevant provision advanced by the Chief Justice at paragraph 59, is to be accepted and we are not going to advance any submissions in relation to that matter, although, it is the same as the construction of Justice Allsop at paragraph 89. On that construction of the provisions, your Honour, the question then becomes as to the first question in the Wotton or Lange formulation.
Your Honours may have observed in our written submissions that we pose a number of questions, or issues, as to the first stem. The difficulty – and it may be that it is a difficulty that only we have, your Honours – but it may be understood in this way. If one looks at the formulation in Wotton – and that is in paragraph 25 – it is set out, your Honours, in paragraph 6 of our written submissions. But, the first question, of course, asks whether the law as constructed in this case on its proper construction, in those terms, operational effect, effectively burdens freedom of communication about government or political matters.
Now in this case, your Honour, for our part, we would not contend that the communications in this matter, for instance, do not relate to government or political matters. They may relate to other matters as well, but if one has regard to those, they relate to both those communications. They relate to such matters.
Does the law here burden a freedom to advance those communications? Of course, this law criminalises that conduct and if that is the question that is asked, then it seems, with respect, that it is almost axiomatic that that is an effective burden upon that communication. It may be that we misunderstand that first step because we read that first question in effect, your Honours, as follows; does the law effectively burden a person’s freedom of communication about government or political matters?
If that is what the first limb means, your Honours, then, in our submission, in cases involving the criminalisation of speech, the first question is almost axiomatic. If the first question has a different meaning and that term “effective” – or it may be “effective” and the term “burden” has a qualitative aspect, then my friend Mr McLeish has addressed your Honours on that and we will not repeat anything that he has said. Of course, as my friend’s submissions have indicated, the same question is in effect asked in the first and second question in any event, as to the specific operation of the particular law.
Moving then from the first question to the second question, and the formulation of it in Wotton, could I advance this submission to your Honours? In approaching the correct response to the second question, in our respectful submission, the Court ought have regard, as this Court has stressed on every occasion where this question has arisen, that the issue which confronts it is a limitation on legislative power deriving from the requirement to maintain representative and responsible government as required and prescribed in the Constitution.
That is, does the law, as it operates in this case, does this criminal statute which prohibits the offensive use of the mail in the way that it has been defined by the Chief Justice, is that incompatible with the maintenance of representative government under the Constitution? In a sense, the question is, is it a threat to the maintenance and continued existence of representative government provided for by the Constitution?
In our submission, if one has regard to the manner in which these words have been construed by the court below, and the limits that are placed upon the word “offensive” there, then in our respectful submission the answer to that question is fairly clearly “no”. That is because any person is free to engage in political and governmental discussion or communications about such matters in a manner that is not offensive in the manner contended for.
The breadth of the area which is open for those to engage in political discussion is extraordinarily broad and does not and could not really, with respect, sensibly be contended to pose any threat to the ongoing institutions of representative government.
FRENCH CJ: Thank you.
MR DONALDSON: Could I just simply, your Honours, raise one other matter. I am sorry, your Honour, I will not pause again. Your Honour ‑ ‑ ‑
KIEFEL J: I hope you have conquered cyclical breathing.
MR DONALDSON: Yes, I am not even sure that I know what that is, your Honour, but I will try and conquer it when I learn what it is. Your Honours, can I make one other observation about the appellant’s submissions. If one has regard to paragraph 7 of the judgment of the Chief Justice which, your Honours, is in the appeal book at page 78 it can be seen that the charges in this matter related both to offensive communications and to an harassment charge. So there was one charge of harassment and that can be seen, your Honours, in the material; I think it is at page 4 of the appeal book. The objection or the challenge to the constitutional validity of the harassment matter was withdrawn before the Court of Appeal.
It is not my understanding, your Honour, that that matter is live before this Court. That, of course, gives rise to an interesting notion in itself and that is there is no challenge by the appellants here that the law, to the extent that it criminalises harassing communications is not inconsistent
with the maintenance of constitutional government. But, in any event, your Honours ‑ ‑ ‑
HAYNE J: Which count charged harassing?
HEYDON J: Three.
HAYNE J: Three? Thank you.
HEYDON J: Page 3.
MR DONALDSON: I am grateful to your Honour, yes it is on page 3, I am sorry, your Honour. The challenge to that was withdrawn as we had understood it, your Honour, and reported at paragraph 7 of the Chief Justice’s judgment. If that is the case, your Honours, then the relief which is sought, which is the quashing of all of the indictments would seem to be, with respect, misplaced because there is no challenge, it would seem, to the indictment in relation to the harassment charge. It may be, your Honours, that there are other matters that occurred below in relation to that about which we are not familiar. If that is the case, no doubt, the appellants will advise your Honours. If your Honours please.
FRENCH CJ: Thank you. Mr del Villar.
MR DEL VILLAR: Your Honours, it is unnecessary to go through points one to four of the oral outline and I adopt the submissions of the learned Solicitor‑General for Victoria in respect of those matters. Can I touch briefly upon Coleman v Power? I will attempt not to take your Honours into detail into that case, but can I make just a couple of points about it? The first is it seems to have been asserted by Ms Droudis in her reply submissions at paragraph 6 that there is a majority in Coleman v Power for the proposition that the end of civilising discourse is necessarily illegitimate and not one that can ever satisfy the second limb of Lange.
Your Honours, I pointed out in point 5 of the oral submissions that there is no majority for that view and can I simply say one of the Judges to whom Miss Droudis in her submissions refers is the judgment of Justice Kirby. At paragraph 237 – I need not take your Honours to it – I will just make this point. His Honour there points out that the ends chosen – the means chosen to effect the end on the construction that your Honour Justice Heydon and Chief Justice Gleeson took would be intolerably over‑wide. In other words, his Honour was finding it would be disproportionate. His Honour, in my submission, could not have made that finding unless he accepted that the end in itself was legitimate.
Your Honour, it is said that Chief Justice Gleeson formed part of five Judges in Coleman v Power who supported the proposition that I have outlined. Your Honour, in my submission, that is not the case. I have given your Honours the references there but could I also give your Honours the reference to appeal book 108 at paragraph 82 where President Allsop makes it quite clear that in his understanding Chief Justice Gleeson was not, in fact, supporting that proposition.
Your Honours, with respect to civilising discourse and legitimate objects, I just make the second observation at point 6 of the oral outline. The example has already been given of the mother in a public place, and so on. That, in my submission, would be an example of the sorts of objects which are clearly legitimate but which, on the very wide view of civilising discourse taken by Miss Droudis, would be very difficult to reconcile with the implied freedom.
Finally, your Honours, I simply note that it is not clear, in my respectful submission, that the fact that the common law of qualified privilege required an extension in the case of Lange, necessarily imports that regardless of its scope a law which has the aim of civilising discourse has to be legitimate. Your Honours, unless I can be of further assistance, those are my submissions.
FRENCH CJ: Thank you, Mr Del Villar. Mr Bennett.
MR BENNETT: Your Honours, your Honour Justice Kiefel asked about the distinction between robustness and offensiveness. The answer to that relates to a number of the submissions that are put against us. But the vital matter to bear in mind in this area of discourse is a passage which is most strongly put by Justice Kirby but also put in different form in other judgments in Coleman v Power. That is the passage at paragraph 239 of Justice Kirby’s judgment where his Honour says:
One might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion. They are part and parcel of the struggle of ideas. Anyone in doubt should listen for an hour or two to the broadcasts that bring debates of the Federal Parliament to the living rooms of the nation. This is the way present and potential elected representatives have long campaigned in Australia for votes . . . “Insulting” therefore requires a more limited interpretation in order for s 7(1)(d) to be read so as not to infringe the constitutional freedom defined in Lange.
The same point is made in a slightly different form in paragraph 81 of Justice McHugh’s judgment where he says:
Insults are as much a part of communications concerning political and government matters as is irony, humour or acerbic criticism. Many of the most biting and offensive political insults are as witty as they are insulting.
He gives an example of Lloyd George and Sir John Simon. There was also a reference in the joint judgment at paragraph 197 to the historical fact that:
Insult and invective have been employed in political communication at least since the time of Demosthenes.
Now, what we get from that is this that the offensive communications, even in the sense used by the Chief Justice, which can really be rephrased as very offensive or grossly offensive, is something which is so much part of political communication that it is a significant restriction on political communication to prohibit political communication, which contains that element and, in my respectful submission, that is a significant factor in this case.
The second matter and I am dealing with matters in a fairly miscellaneous order; for that I apologise. The second matter concerns a reference to page 572 of Lange – I will not take your Honours to it I will summarise it – and also to a case called Lang v Willis 52 CLR and that is that one of the major factors in looking at the importance of the policy, which is put up under the second limb as justifying the restriction, is the extent of the publication. Clearly, a communication to thousands of people is capable of doing more harm if the communication is in some way harmful than a communication to one person. What we are talking about in this case, of course, is in the normal circumstance, communications to one person or a small number of people.
So for that reason one would give somewhat less weight to the need for legislation protecting people against the receipt of offensive material. The third matter concerns the reference to reasonable persons in the offence. Our submission is this that that does not remove subjectivity.
The underlying concept still involves subjectivity even if one is saying what would reasonable persons regard. That subjectivity is one of the things which give rise to the chilling effect. The discussion in argument earlier today about the various ways a jury could be directed and how a jury would deal with it has the effect that the decision about basic constitutional facts is passed onto a jury and, as I submitted in‑chief, if one is talking about unpopular political opinions and the freedom to disseminate unpopular political opinions, there is an added chilling effect that a jury which will decide the subjective question is likely to be composed of a majority of people who are of the opposite view.
That rather relates to the submission that was made by my learned friend, Mr Agius, in relation to paragraph 102 of the judgment of Justice McHugh in Coleman v Power, where his Honour pointed out that the prohibition was not qualified and my learned friend submitted, well, here it is qualified by the reference to “reasonable persons”. That is not, we would submit, the type of qualification his Honour was referring to in paragraph 102, he was rather referring to a qualification limiting it to matters likely to provoke physical retaliation or possibly a qualification in relation to political speech, but it was not this type of qualification.
Now, your Honour Justice Bell referred to section 473.4, which contained a list of matters relevant to whether something was offensive. That section only applies to Part 10.6, which is not the part that the present section appears in; it is concerned with communications through a telephone or carriage system, so that does not assist in this case. In any event, the list does not refer to political matters as being something to be taken into account and it does not remove the subjectivity from the definition, even where it does apply. Now, your Honour Justice Hayne referred, in relation to the first limb, to the distinction between legislation which targets political speech, but incidentally and legislation which targets it directly, rather like Australian Capital Television.
Our answer to that is, as I submitted at the beginning of my submissions in reply, that a high proportion of political speech is offensive, so there is a fairly direct reference there. But more importantly, in Coleman v Power itself, it was a general prohibition and it would have been invalid, unless it was confined to matters giving rise to physical consequences. I am putting that in very broad terms. In any event, that would only go to the extent to which one looks at the importance of the countervailing factor under the second limb.
In relation to the provocation of retaliation, we simply repeat what was said in‑chief, that it is a very long bow to take the view that offensiveness in the sense defined by the Chief Justice is something likely to produce retaliation in the context of someone receiving something through the mail and the reasons for that are obvious. It is so unlikely that it cannot have been intended to be the reason for this legislation, or a matter entitled to great weight under the second limb.
In relation to the question of integrity of the post, we point out again that the Chief Justice in paragraph 58 rejected that submission, and we respectfully support his reasons for rejecting it. Much has been made of the “captive audience” point, and the point about people being entitled in their homes to be protected from an intrusion of this type, and so on. Of course, the prohibition is not limited to homes. It will apply to communications sent through the post to places of work, to corporations, to politicians, or even to post office boxes. If that were the purpose of it, that would need to be the qualification, and even then, it would not be a justification under the second limb.
It is very easy for a person receiving offensive material in the sense defined by the Chief Justice to see that it is material the person does not wish to receive within a second or two of opening the envelope and then to throw it away. It is not like the person who is hit once and is – if he runs away or she runs away, suffers from the first blow. That is not a fair analogy. It is very easy to discard what one does not want to read.
The other aspect, of course, is this that when it is said this may cause people not to read their mail with unfortunate results, we would submit that that is a very long bow to draw. To say that someone because the person has received material of the type described by the Chief Justice might cease reading mail is, with respect, simply not a submission which stands the test of common sense. There are, of course, people who may not read their mail at all. They may be foolish professional debtors who do not want to receive bills or demands or summonses ‑ ‑ ‑
HAYNE J: Rather than these elaborations, Mr Bennett, does not the point come to this, that the end sought to be achieved by this legislation is said to be concerned with public safety or breach of the peace. That is one end identified, an end you reject. No one, I think, has said it is for the avoidance of injury of a kind recognised in the civil law, personal or psychiatric. A possible point of view is that the end of the legislation is for the avoidance of serious distress, elaborated perhaps in the fashion Chief Justice Bathurst did, but including distress short of injury.
MR BENNETT: Yes, your Honour.
HAYNE J: Well, do we need to then elaborate beyond that?
MR BENNETT: Your Honour, we add to that that if the matters I have taken from five Justices in Coleman v Power are right then the protection from that sort of harm is simply not sufficient to be within the second limb. The ratio of the trial judge and to a large extent of the Court of Criminal Appeal is simply to say, well, in Coleman protection against the offence caused by insult was not enough.
The case suggests that the same might be so of dictionary offensiveness, but if one is talking about something which is very offensive, or grossly offensive or offensive summarised in the three or four lines of the Chief Justice’s test, then somehow that takes it over the line and becomes something which it is legitimate to protect people against under the second limb. That is the ratio and we submit that flies in the face of the decision in Coleman v Power.
There was a reference in the first respondent’s submissions to the possibility of self‑harm. That is a fairly remote possibility and certainly, if one were trying to protect people against that, one would need a very different piece of legislation. That of course might make it unlawful to send a person a copy of the book called Final Exit which, as your Honours know, is a book which explains how to commit suicide and says that it should not be illegal and so on.
Now, that would be an example, I suppose, of something that might cause self‑harm, but certainly not the general run of matters that fall within the Chief Justice’s extended definition. In relation to the orders that should be made, my client of course is not charged with menacing or harassing, so that charge only affects the first appellant and your Honours have heard that the objection to that was withdrawn. As I say, my client is not affected by that and I do not need to address it.
In relation to quashing, we submit that it is appropriate for this Court, rather than the trial judge, to decide the issue of whether the letters in fact relate to political or governmental matters. If your Honours take the view that that is an inquiry, the result of which would result in the prosecution failing, your Honours have the letters. The question is one of weighing a constitutional fact. It is a question of construction of the letters which is a legal issue and, in my respectful submission, it would be appropriate for this Court to answer that very short question in those circumstances and, if satisfied, as I submit, that they are political communications within the first limb, to quash the indictments.
The English case that was referred to about the photographs of foetuses is a case which involved the words “rights of others” in particular human rights legislation. It involved the performance of a task very different to the task involved under our implied constitutional assessment.
KIEFEL J: I thought it referred to a number of European cases which apply a test of proportionality.
MR BENNETT: Yes. Your Honour, in my respectful submission, that is answered by what Justice McHugh said in Coleman v Power, that the implied freedom trumps other considerations of that nature except to the extent that the second limb enables them to be taken into account.
KIEFEL J: The second limb requires a proportionality assessment.
MR BENNETT: Well, your Honour, in one sense it does, but to the extent that it does, and to the extent that that is a matter to be determined at a trial, the subjectivity of that very much goes to the chilling effect, as I have submitted. Now, your Honours, those are my submissions in reply.
FRENCH CJ: Thank you, Mr Bennett. Yes, Mr Reynolds.
MR REYNOLDS: Your Honours, I have no reply other than to point out that the order sought by my client at page 130 of the appeal book is to quash the indictment except in relation to count 3. If the Court pleases.
FRENCH CJ: Thank you. The Court will reserve its decision. The Court adjourns until 9.30 tomorrow morning in Canberra and 9.30 tomorrow in Sydney.
AT 3.49 PM THE MATTER WAS ADJOURNED
3
9
0