Monis v The Queen & Anor; Droudis v The Queen & Anor

[2012] HCATrans 238

[2012] HCATrans 238

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 WEDNESDAY, 3 OCTOBER 2012, AT 2.15 PM

Copyright in the High Court of Australia

____________________

MR G.O’L. REYNOLDS, SC:   May it please the Court, in the Monis matter I appear for the appellant with my learned friends, MR J.C. HEWITT and MS G.R. RUBAGOTTI.  (instructed by Aston Legal)

MR D.M.J. BENNETT, QC:   If your Honours please, I appear for the appellant, Droudis, with my learned friend, MR A.K. FLECKNOE‑BROWN.  (instructed by CBD Criminal Defence Lawyers)

MR J.V. AGIUS, SC:   May it please the Court, I appear with my learned friend, MR M.G. McHUGH, for the first respondent in each appeal.
(instructed by Commonwealth Director of Public Prosecutions)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS S.E. PRITCHARD for the second respondent in both matters.  (instructed by Crown Solicitor (NSW))

MR T.M. HOWE, QC:   May it please the Court, I appear with my learned friend, MS R.J. ORR, for the Attorney‑General of the Commonwealth who intervenes in support of the first respondent in both matters.  (instructed by Australian Government Solicitor)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS L.K. BYERS, intervening on the instructions of the Attorney‑General in both matters.  (instructed by Crown Solicitor (SA))

MR S.G.E. McLEISH, SC, Solicitor‑General for the State of Victoria:   If the Court pleases, I appear with my learned friend, MR A.D. POUND, for the Attorney‑General for Victoria intervening in both matters.  (instructed by Victorian Government Solicitor)

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MS J.E. SHAW, for the Attorney‑General of Western Australia intervening in both matters.  (instructed by State Solicitor (WA))

MR G.J.D. DEL VILLAR:   May it please the Court, I appear for the Attorney‑General for Queensland intervening in both matters.  (instructed by Crown Law (Qld))

FRENCH CJ:   Mr Bennett, are you leading off?

MR BENNETT:   Yes, your Honour.  Your Honours have our outline of oral argument and your Honours will see from that the order in which I propose to deal with matters is first to deal with the second limb of the Lange test, then that leads into the question of the end to which the section relevantly serves.  I will then say a little about the first limb.

In relation to the second limb, our primary submission is that on the construction put forward by the Chief Justice and President Allsop, the provision clearly offends against what was laid down by five of the seven Justices in Coleman v Power.  That is our primary submission.  We then submit that if one takes a different construction and looks at the ordinary meaning of “offensive”, that submission becomes a fortiori.  I will be saying much less about that.

Your Honours, the starting point is this, that it seems to be clearly accepted that to prohibit the use of the mail service in a way that would fall within the ordinary sense of “offensive” would be incompatible with the maintenance of the system of government prescribed by the Constitution within the meaning of the second test. That appears clearly in a number of the judgments in the Court of Criminal Appeal. In the judgment of Justice McClellan at paragraph 109 ‑ ‑ ‑

HAYNE J:   What page in the appeal book?

MR BENNETT:   I am sorry, at page 116 in the joint appeal book.  I apologise, your Honour.  His Honour there, accepting the first limb, says:

The question in the present case is whether the section is a reasonably appropriate response fairly adapted to meet the legitimate end of regulating the postal service which is compatible with the system of government proscribed by the constitution (Lange at 562).  To prohibit the use of the mail service in the Dictionary sense of to offend, ie cause displeasure, insult or occasion displeasure in the moral sense would clearly infringe the implied constitutional freedom of political communication and would be incompatible –

The learned President, Justice Allsop, makes the same point at paragraphs 82 to 83, which is at pages 107 to 108.  Your Honour sees there that at paragraph 82 he sets out a passage from Justice McHugh’s judgment in Coleman and refers to:

The use of insulting words is a common enough technique in political discussion . . . And whether insulting words are or are not used for the purpose of intimidation, fear of insult may have a chilling effect on political debate. However, as I have indicated, insults are a legitimate part of the political discussion protected by the Constitution.

In relation to the “chilling effect”, we would add to the chilling effect not only the size of the penalty prescribed, but also the fact that it is an offence which at the election of the prosecution, at least in New South Wales, can be prosecuted before a jury.  If one is advocating, in an offensive way perhaps, an unpopular political view, the chilling effect would include the fact that a jury is likely to consist largely of people who hold the majoritarian view, making it even more of a hazard to engage in this type of speech.  His Honour goes on to say in paragraph 83, after referring to some other passages from Coleman:

Recognising the scope of the protection referred to by McHugh J, Gummow J, Kirby J and Hayne J in Coleman, the word “offensive” in s 471.12 should not extend to use of a character calculated to cause hurt or injury to feelings or even to wound.

But then he returns to the Chief Justice’s test:

of a character objectively calculated or likely to cause or arouse significant anger, significant resentment, disgust, outrage or hatred.

That is the Chief Justice’s test which is set out at page 93 in paragraph 44 where his Honour says:

In these circumstances, in my opinion, for the use of a postal service to be offensive within the meaning of s471.12 it is necessary that the use be calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances. However, it is not sufficient if the use would only hurt or wound the feelings of the recipient, in the mind of a reasonable person.

The words “hurt or wound” are probably used because the trial judge, Judge Tupman, in her judgment specifically drew a distinction in paragraph 50 on page 65 between wounding feelings and hurting feelings and said hurting feelings is not enough but wounding feelings is, something we perhaps a little unkindly describe as a distinction without a difference.

The important thing about the Chief Justice’s test, before I go to Coleman v Power, if your Honours look at that test on page 93, your Honours will note that every one of the items that make up the test is something which could be described as relating to the recipient’s feelings, whether one uses words like “hurt” or “wound” or “injure” or “cause harm” or anything else.  The words are “anger”, “resentment”, “outrage”, “disgust” and “hatred”, and two of them are preceded by the word “significant”, desired no doubt to imply a greater degree.  But all of them are degrees of causing some harm to a person’s feelings.

CRENNAN J:   But by reference, of course, to the reasonable person in all the circumstances.

MR BENNETT:   Yes, I will come to that, your Honour.  When one goes to Coleman v Power, one sees in their application of what would satisfy the second test, five of the Justices, in our submission, reject injury to feelings.  Now, it is done in different words and I will take your Honours to the words, but it is our submission that the expressions used in Coleman v Power were intended to be qualitative rather than quantitative.  But what has been done in the judgments below is to say, and I paraphrase, “Offensive means very offensive and therefore that distinguishes Coleman v Power and that is all right”.

FRENCH CJ:   I think it is still qualitative.

MR BENNETT:   Well, your Honour, we submit that the implied constitutional prohibition is qualitative, but the gloss put on the words by the Court of Criminal Appeal and said to save them is quantitative and for that reason does not save them.

Now, let me show your Honours what each of the Justices said.  It is convenient to start with Justices Gummow and Hayne in their joint judgment at paragraphs 198 to 199.  The case is Coleman v Power (2003‑2004) 220 CLR 1, going straight to the joint judgment to paragraphs 198 and 199. Your Honours will see that in 198, 198 begins with the words:

Construed in the fashion we have earlier indicated –

That is a reference to paragraph 193 on the previous page where what is said is:

as indicated earlier, “abusive” and “insulting” words can be understood as anything that is intended to hurt the hearer.  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.

That is a qualitative difference, we would submit:

Only if “abusive” and “insulting” are read in this way is there a public purpose to the regulation –

So there is no public purpose if you are hurting a person.  There is a public purpose if you are preventing the person from being incited to lash out.  So, returning to 198:

Construed in the fashion we have earlier indicated –

So it is limited to matters which are likely to provoke physical retaliation -

s 7(1)(d) is reasonably appropriate and adapted to serve the legitimate public end of keeping public places free from violence.  That is an end the fulfilment of which is entirely compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 –

procedure.  If the section:

is not construed in the way we have indicated, but is construed as prohibiting the use of any words to a person that are calculated to hurt the personal feelings of that person, it is evident that discourse in a public place. . . is more narrowly constrained. . . And the end served . . . would necessarily be described in terms of ensuring the civility of discourse.  The very basis of the decision in Lange would require the conclusion that an end identified in that way could not satisfy the second of the tests –

and your Honours refer to the defamation issue which arose in Lange.  So we submit that that is put in a qualitative sense.  Justice Kirby, at page 98, paragraph 256, says basically the same thing.  His Honour says:

If s 7(1)(d) is confined to the use in or near a public place of threatening, abusive or insulting words that go beyond hurting personal feelings and involve words that are reasonably likely to provoke unlawful physical retaliation, the proportionality of the contested provision and the legitimate ends of State government . . . becomes clear.  The Act, so interpreted, is confined to preventing and sanctioning public violence and provocation to such conduct.  As such, it deals with extreme conduct or “fighting” words.  It has always been a legitimate function of government to prevent and punish behaviour of such kind.  Doing so in State law does not diminish, disproportionately, the federal system of representative and responsible government.  On the contrary, it protects the social environment in which debate and civil discourse, however, vigorous, emotional and insulting, can take place without threats of actual physical violence.

Justice McHugh, who was the only Justice to find partial invalidity - the others did not need to find that because they construed the words in the way I have indicated - Justice McHugh dealt with the matter at page 53, paragraph 102 where his Honour says:

Regulating political statements for the purpose of preventing breaches of the peace by those provoked by the statements is an end that is compatible . . . However in the case of insulting words, great care has to be taken in designing the means of achieving that end if infringement of the constitutional freedom is to be avoided.  In so far as insulting words –

and we would say a fortiori offensive words –

are used in the course of political discussion, an unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom.  An unqualified prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted for preventing breaches of the peace in a manner compatible with the prescribed system.  Without seeking to state exhaustively the qualifications needed to prevent an infringement of the freedom of communication, the law would have to make proof of a breach of the peace and the intention to commit the breach elements of the offence.  It may well be the case that, in the context of political communications, further qualifications would be required before a law making it an offence to utter insulting words would be valid.  In the present case, it is enough to say that s7(1)(d) infringed the constitutional freedom by simply making it an offence to utter insulting words in or near a public place whether or not a person hears those words even when they were used in the discussion of political and governmental matters.

Finally, the Chief Justice put the matter a little differently to the other Justices generally, but on this aspect he laid down the same limitation.  In paragraph 12 on page 25 his Honour said:

Concepts of what is disorderly, or indecent, or offensive –

and that is, of course, equating the principles in relation to insulting and offensive which we likewise do –

vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs.  The same is true of insulting behaviour or speech.  In the context of legislation imposing criminal sanctions for breaches of public order, which potentially impairs freedom of speech and expression, it would be wrong to attribute to Parliament an intention that any words or conduct that could wound a person’s feelings should involve a criminal offence.  At the same time –

and this is a qualification the others do not make –

to return to an example given earlier, a group of thugs who, in a public place, threaten, abuse or insult a weak and vulnerable person may be unlikely to provoke any retaliation, but their conduct, nevertheless, may be of a kind that Parliament intended to prohibit.

That may in some ways relate to the words “menacing” or “harassing” in our legislation:

There is a similar problem in applying the concept of offensive behaviour, which often arises in relation to conduct undertaken in the exercise of political expression and action.

He refers to the familiar case of Ball v McIntyre where Justice Kerr, as he then was, held that:

a student who demonstrated against the Vietnam War by hanging a placard on a statue –

of George V was not guilty of offensive behaviour.  There are other cases involving people entering football grounds in games against South Africa to protest against apartheid and so on.  In paragraph 15 he says:

It is impossible to state comprehensively and precisely the circumstances in which the use of defamatory language in a public place will involve such a disturbance of public order, or such an affront to contemporary standards of behaviour, as to constitute the offence of using insulting words to a person.  An intention, or likelihood, of provoking violence may be one such circumstance.  The deliberate inflicting of serious and public offence or humiliation may be another.  Intimidation and bullying may constitute forms of disorder just as serious –

So that is his extension which, as I say, we are not concerned with here -

But where there is no threat to the peace, and no victimisation, then the use of personally offensive language in the course of a public statement of opinions on political and governmental issues would not of itself contravene the statute.  However, the degree of personal affront involved in the language, and the circumstances, may be significant.

So his Honour’s distinction is not put as clearly as that of the other Justices but, in my submission, four and probably five of the Justices have laid down a test which would not be satisfied by Chief Justice Bathurst’s formulation in this case.  That, your Honour, is our primary submission.

Now, we put an alternative submission in paragraph (c) and I do not propose to go into any detail about this.  It is sufficiently set out in our written submissions in‑chief, our primary written submissions.  But that is that a construction which takes the ordinary meaning of the word “offensive” should be taken and if that construction is taken, a fortiori the provision is invalid because it does not even go to the extent that the Chief Justice takes it to.

I only mention very briefly three matters in relation to that.  The first is that reliance is placed by our learned friends and by the judges below on the penalty and what is set out is a two‑year gaol sentence.  That is a serious penalty, therefore something serious was contemplated.  The short answer to that is that the prohibition which is covered by that penalty is against the phrase “menacing or harassing” and it is almost impossible to imagine a case where the maximum penalty would be applied to a case of mere offensiveness as opposed to menacing or harassing, particularly menacing.  So the fact that it is combined with those means that one cannot take anything specific from the maximum penalty and it is of course a maximum penalty.

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 that the two prohibitions have quite different sources.  The offensive came from a statute talking about indecency, obscenity and offensiveness and the menacing or harassing came from a statute dealing with quite different matters.  They were put together by the legislative draftsmen for reasons of convenience. 

FRENCH CJ:   The concept of “offensive” cannot be purely subjective, can it, because of the reference which, I think, was put to you earlier to “reasonable persons would regard”?

MR BENNETT:   Yes, yes.  Although, it is not a purely subjective – one does not just say is the person particularly sensitive but one does look at the occasion, of course, and one does look at all the surrounding circumstances.

HAYNE J:   Do you seek to make anything out of the legislative history and what you described as being the joining of two disparate legislative streams?

MR BENNETT:   Only, your Honour, that it is impermissible to apply noscitur a sociis when that is done.

HAYNE J:   In particular, it is not as I read it.  You were not submitting that the word “offensive” should in some way be read as confined to matters of the kind earlier dealt with in connection with lewd and pornographic material, that is, “offensive” is not to be read as confined to - the best expression I can think of is “morally offensive”.

MR BENNETT:   No, we do not, your Honour.  That was the original purpose and the original legislation and all the cases are in that category but no, it is not ‑ ‑ ‑

HAYNE J:   It is, I think, all that from about the mid 1950s was found in the British postal statute was concerned with transmission of articles that were offensive in the sense of lewd or pornographic or the like.

MR BENNETT:   As a matter of interest, we have included the English Hansard from the 1890s.  It does not really add anything significant to the interpretation.  It just does show the historical nature of it where it was suggested that the word “offensive” be added to “indecent” or “obscene” and one of the arguments was “We do not want to go beyond that” and the parliamentary debates say, in effect, well there is no point in adding it because it would only be construed ejusdem generis with “indecent” or “obscene” so it would not add anything, but that is a different aspect.

We do remind your Honours of a number of small matters.  The explanatory memorandum to the 2002 legislation at page 7, where in the second‑last paragraph on that page the draftsmen says this:

This offence draws on the terms of the existing section 85S offence, but broadens the scope of the offence in relation to menacing or harassing material by removing the requirement that the recipient be in fact menaced or harassed and replacing it with an objective standard.

Nothing turns on that except it shows one reason for combining them.  They wanted an objective standard for both. 

The new offence also increases the existing penalty of 1 year imprisonment to 2 years, in line with the suggested penalty for the draft Model Criminal Code “threats to cause harm” offence -

So it has really increased because of the menacing rather than because of “offensive” and that just answers the argument that the size of the maximum penalty in some way affects the construction of the word.  It is also significant that in 1975 the word “grossly” was removed, so it had said “grossly offensive” before that and that word was removed.  Your Honours can see that from looking at first Act No 12 of 1901, the original Post and Telegraphs Act, where your Honours see section 107(c) referred to the envelope having on it:

words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character -

That applied to the exterior of the envelope and that was another reason for the combination of the various provisions in the later legislation because now it is the same offence, whether it is on the inside or outside of the envelope.  But your Honours will see the words “grossly offensive” and then in the Statutory Rules No 130 of 1975 under the Postal Services Act, the Postal Services Regulations, regulation 53, replaced that with these words which found their way eventually to our section:

A person shall not knowingly send by post or by the courier service an article consisting of or containing matter not solicited by the person to whom the article is sent, being matter that advises, notifies or advertises the existence or availability of matter of an indecent, obscene or offensive nature.

So, in this provision the word “grossly” has been dropped and it was dropped in the form in which it now appears.  That, we submit, is a pretty strong indication that it was not intended that “offensive” be read in the manner referred to by the Chief Justice.  But as I say, I do not need to spend, and I do not want to spend any further time on the construction issue because our primary submission is that, accepting the Chief Justice’s test, it clearly does not satisfy Coleman v Power.

The same applies, I should say, to the test laid down by the learned President.  Justice Allsop at page 111 in paragraph 89 floats – he does not put this, as your Honours will see, as being his answer – he rather floats it and then seems to reject it.  But he says in the second sentence of paragraph 89:

An additional qualification could be added, being one that takes an element of meaning from the surrounding words of “menacing” and “harassing” by being directed to an additional requirement of causing of real emotional or mental harm, distress or anguish to the addressee.

He then suggests a combination of that with the Chief Justice’s test.  The point we make about that “floated” definition is that real emotional or mental harm, distress or anguish are also all matters affecting a person’s feelings.  They are merely words of degree.  They are quantitative.  The difference is quantitative not qualitative.

HAYNE J:   Well, how would that understanding fit with the civil law tort of Wilkinson v Downton, deliberately causing harm, et cetera?

MR BENNETT:   Well, your Honour, in the same way as with defamation there were questions which arose as to the extent to which the common law must be read down by reference to the constitutional limitation.  There would be a question in relation to that. 

HAYNE J:   It seems that his Honour may be, as you put it, floating the idea that to send something that will, or may, or could cause psychiatric injury would fall within the offensive limb.

MR BENNETT:   He does not use those words, your Honour.

HAYNE J:   No.

MR BENNETT:   Or go quite as far as that.  We do not have to deal with that.  No one has suggested that meaning.  Indeed, Justice Allsop goes on in paragraph 91 to reject it because he says in that paragraph:

It must, however, be recalled that this is a process of statutory construction and not legislative drafting.  In the end, I am content to rest with the meaning of “offensive” proposed by the Chief Justice.

So, at the end of the day, he accepts that this is merely something he posited.  We submit all it adds is a matter of degree which, again, would not save it from Coleman v Power. So, your Honour, those are the submissions in relation to that.

Then I move to paragraph 2 of my outline of oral argument – the end to which which the section serves and we submit that either of the two or, perhaps, three possible constructions – the only end served is the end of preventing offensive conduct, perhaps conduct which would cause some mental hurt or injury, or whatever phrase one wants to use.  It clearly:

goes beyond conduct which is intended or likely to cause any of the following –

·physical damage to the postal system . . .

·a breach of the peace;

·a fear of physical harm to the recipient;

·medically cognizable psychological harm –

which is the question your Honour Justice Hayne just asked me:

(assuming that this falls within the second limb).

There may be a question as to whether it does.  We do not need to address that.  Two justifications under the second limb are suggested and these are the so‑called integrity of the post and the question of the risk of retaliation.  I should just deal with those very briefly.  In relation to the first, we submit that “integrity of the post” is a meaningless slogan.  It is invented for the purposes of this case, it does not mean anything and it cannot possibly affect either construction or constitutionality of the provision. 

If it means anything it would relate to harmful or dangerous substances or perhaps the reliability of the post but to suggest that one, it violates the integrity of the post for a person to receive something the person does not like is, in our respectful submission, something which just does not arise.

KIEFEL J:   But in the sense that it is used by the Court of Criminal Appeal is not the “integrity of the post” meant to refer to people being deterred from using the post?

MR BENNETT:   Well, deterred from using it by receiving or from using it by ‑ ‑ ‑

KIEFEL J:   By receiving I mean one has to – yes, I suppose you could close off your letterbox.

MR BENNETT:   Yes.

KIEFEL J:   There are two aspects to that, I suppose.  One is they are deterred from using the post as an effect upon the person, therefore they cut themselves off from receiving the post and the second is the effect upon postal business which might, arguably, bring in some other ‑ ‑ ‑

MR BENNETT:   Yes.  First of all, of course, your Honour, the deterrence of people using the post by posting letters is what the section does achieve and what we object to but in relation to people receiving it is hard to imagine a person saying, “Well, because I have occasionally received something offensive or might receive something offensive I will never open my mail” particularly as one can, of course, put things into a person’s letterbox other than through the post and it is hard to ‑ ‑ ‑

KIEFEL J:   You cannot really put a sign up which is equivalent to saying “Australia Post only” and saying “No offensive material, please”.  It does not work that way, does it?

MR BENNETT:   It does not in practice, your Honour, no.

KIEFEL J:   No.

MR BENNETT:   No.  Chief Justice Bathurst at paragraph 58 on page 98 rejects the concept and he says:

As I indicated earlier the primary judge held that the section had two purposes.  The first was to protect the integrity of the post both physically and as a means of communication in which the public could have confidence.

Stopping there, why is it not a means of communication in which the public could have confidence because something which is on an offensive subject or the subject matter of which is offensive is occasionally in it?

I am unable to accept this conclusion.  First, the integrity of a postal or similar service is expressly dealt with in s471.13 and offensive material would not threaten the physical integrity of the post.  Second, the suggested purpose of maintaining confidence in the integrity of the postal system is a somewhat ephemeral concept particularly having regard to the wide variety of services to which the section could apply.  It does not seem to me that the legislative purpose in prohibiting the dissemination of offensive material was to protect such integrity – presumably of its efficiency and reliability.

We respectfully adopt those words. 

BELL J:   What of the purpose that is identified in the next paragraph at paragraph 59?

MR BENNETT:   Yes, that is what I am just coming to, your Honour.  That is the purpose of preventing breaches of the peace. 

BELL J:   I do not understand it to be confined to that.  I thought his Honour was identifying a broader purpose when he spoke of protecting persons from being subjected to material that is offensive and then he goes on to speak of the features of the post including that the recipient of material is essentially a captive audience.

MR BENNETT:   Except that, of course, a person can glance at a document and read no further or throw it away.  There is no captivity requiring the person to read all of it.  We all, when we read documents, tend to form a view as to what the document is saying before we read it.  That is a normal human way of dealing with written material.  The person is not captive at all.  The person is only captive, if anything, for the first few seconds while the person identifies what the material is.

BELL J:   But as I read what the Chief Justice was saying, it was that there are features of the receipt of material by post that include that an addressee is a person likely to open the post, not knowing what is in it, and that it was the purpose of the Parliament to proscribe sending material that was offensive, in the way that the Chief Justice defined that term, having regard to those features of the postal – of the mail.  What is wrong with that characterisation?

MR BENNETT:   What is wrong with it, your Honour, is that it is going further than is necessary for a purpose consistent with the constitutional system.  It is banning speech which includes political speech in order to protect people from being offended or upset by material they receive which they are under no obligation to read once they see what it is and that really goes to the triviality of the protection.

HAYNE J:   I would have thought that a common case of written communication provoking significant anger or significant resentment is the intra familial communication?

MR BENNETT:   Yes, precisely, your Honour.  There are many people who would be very upset to receive a bill or a letter of demand.  The genus of which we are talking cannot be something which you would rather not have read or received.  That cannot be the genus.  It must be something narrower than that.  As I have submitted, the effect of Coleman v Power is it does not include things which merely affect by hurting the feelings of the recipient. It has to be something which has some further public purpose such as the prevention of a breach of the peace. That brings me to the second suggestion and that is at paragraph 59 where his Honour says:

Her Honour also held that the second purpose was to protect –

I think it means prevent –

breaches of the peace which may flow from the receipt of offensive material and protect the recipients from harm.

It seems to be a bit of a non sequitur.  Perhaps it is to protect the senders from harm or other people from harm.  But, in any event, he goes on to say:

It is to protect persons first, from being menaced by use of a postal service.  Second, it is to protect persons being harassed by [it]…and third, to protect persons from being subjected to material that is offensive in the sense I have described –

then, the Chief Justice’s definition is set out again.

CRENNAN J:   When the Chief Justice speaks of arousing –

significant anger, significant resentment, outrage, disgust or hatred in the mind of a reasonable person –

is that getting close to the formula to which you took us in paragraph 193 in Coleman v Power in the joint judgment of Justice Gummow and Justice Hayne where there was reference to “insulting” words:

reasonably likely to provoke unlawful physical retaliation.

Is there much of a difference between what the Chief Justice is saying?

MR BENNETT:   Yes, your Honour, for a number of reasons.  First, of course, if one uses insulting words to a person’s face in a public place there may be a risk of physical retaliation and a breach of the peace.  That being the purpose, the statute is limited to that.  When one receives something through the mail the sender is not immediately on hand.  One may not know who the sender is.  One could breach the section by sending anonymous material.  One certainly may not know the sender’s address.  Here the address on the documents was a post office box. 

Thirdly, of course, quite apart from those matters, maybe some detective work might enable one to find the sender but by the time one does there is an opportunity to cool down and to think about it and so on.  We are concerned with words which are likely to provoke immediate retaliation in Coleman v Power.  Here it is obviously theoretically possible that a person might receive something offensive, work to identify the sender and then go and assault the sender but it is a pretty far‑fetched possibility.  It is certainly not likely enough, one would have thought, to justify the breadth of the prohibition which is not confined to that type of situation.

HAYNE J:   It is perhaps notable that the offensive words and offensive behaviour statutes concern, I think for the most part, conduct in a public place or conduct observable from.

MR BENNETT:   Yes.

HAYNE J:   They do not, I think, regulate what occurs in private.

MR BENNETT:   Yes that is so, your Honour.  There is a common law offence, the name of which escapes me, under which a person engages in obscene acts in his or her own home but by a window in sight of a public place or even in sight of another private place there is a common law offence that covers it, but that is an exceptional situation.

HAYNE J:   The comparison here, a comparison that may have to be examined, is what would happen if instead of using the postal service the same communication were delivered by hand to the letterbox of the recipient.  What would happen if the same communication were delivered in person but in private?

MR BENNETT:   Your Honour, there would be no offence of which I am aware.  The reason for the offence ‑ ‑ ‑

HAYNE J:   Connection with the postal service has at least an explanation found in the enumerated heads in section 51 ‑ ‑ ‑

MR BENNETT:   Yes.

HAYNE J:   ‑ ‑ ‑ but what other connection is identified in the reasoning of the Court of Appeal, or otherwise?

MR BENNETT:   Your Honour, we would submit that there is none, except the two matters I have referred your Honour to, which simply do not take one there.  That brings me finally to the third and last matter which – your Honours to the first leg of the questions in Lange.  First, we submit, and there cannot be serious doubt about this, the section plainly burdens both political and non‑political communication and the passages in Coleman establish that the law may be invalid without specifically targeting political communication.  It burdens such communications directly by the method, or use or content of a communication, or both and, again, that is enough to satisfy the first Lange question.  I just very briefly refer to paragraph 91 of the judgment of Justice McHugh where his Honour says, on page 49 of the report:

91       In determining whether a law is invalid because it is inconsistent with freedom of political communication, it is not a question of giving special weight in particular circumstances to that freedom.  Nor is it a question of balancing a legislative or executive end or purpose against that freedom.  Freedom of communication always trumps federal, State and Territorial powers when they conflict with the freedom.  The question is not one of weight or balance but whether the federal, State or Territorial power is so framed that it impairs or tends to impair the effective operation of the constitutional system of representative and responsible government by impermissibly burdening communications on political or governmental matters.  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 –

Well, a law prohibiting insulting language in a public place fell within that and, we would submit, a law prohibiting offensive material in general through the mail falls within that.

HAYNE J:   Is it a necessary step in your argument to demonstrate that the communications in issue in this case were communications on a political matter?

MR BENNETT:   It is not a necessary step but my next submission is that they are.

HAYNE J:   The reason I put the necessary step proposition to you is that, is the relief that you would if you were successful be entitled to any broader than that the specific charge identified brought against your client in respect of an identified communication was beyond power?

MR BENNETT:   Well, your Honour, all I am moving to do is quash the indictment and I am appealing against the refusal to do that.

HAYNE J:   Yes.

MR BENNETT:   I do not need to go any further, although some of my arguments involve a further consequence.

HAYNE J:   But because that is so, does it become a necessary step to demonstrate that the communication which is the subject of the charge was communication on a political matter of a kind within the relevant doctrine?

MR BENNETT:   No, your Honour, because if my primary submission is correct, the provision is simply invalid and the fact ‑ ‑ ‑

HAYNE J:   Wholly so and cannot be read down?

MR BENNETT:   Precisely, your Honour.  But I do not need to go that far because, as we say in paragraph 3(d), “the communications at issue in these appeals” are clearly “communications on government and political matters.”  If your Honours are with me on that and are of the view that in this case it is not necessary to go any further, that would be sufficient for your Honours to allow the appeal and quash the indictments on that ground.  May I just very briefly demonstrate that in relation to some of the material?

The clearest example of something which is almost exclusively political and not in any way personally offensive is the letter sent to Mrs Senger on page 49.  This was the consequence of a bombing in Indonesia outside a hotel where an Australian official was killed.  What the letter says – and I invite your Honours to read it – it contains, beginning in the fourth paragraph, a detailed political attack on the Australian Government on a number of bases.  Then the statement is made:

Who is to blame?  Who is the main responsible body for the attacks against the Australian nation?  Is the Indonesian government . . . No.  Is it the Indonesian nation . . . No.  Is the Australian government the main responsible body . . . No.  So who is the main body who is responsible?  The answer is:  “Australian nation”.

You might say:  “It doesn’t make sense, how can the victims of the attacks be responsible for the attacks?  Do you have any logical reason to prove your point?”

I answer:  Yes, of course.  Below is my reason:

Who has elected the Australian government?  The majority of the Australian nation.

Both the majority that has voted to the elected government and the minority that has not had any role for electing the government, have been silent when they have seen the oppression of their government.  This means both majority and minority of the nation are responsible for the behaviour of their government.  The Australian government represents the Australian nation.  The Australian nation has approved the oppressive behaviour of its own government.  How?  By its silence.  Insane people and children are exceptions.  In other words every single member of the Australian nation that is:

A.       Sane
B.       Adult
C.       Silent towards the oppression of the Australian government

is responsible for the oppressive behaviour –

et cetera.  Now, your Honours, that is said to be offensive material.  It may not be the most powerful form of advocacy.  It may not persuade your Honours to the cause that it advocates, but it is purely political.  It is putting an extreme view.  It is putting what is no doubt very much a minority view, but it is purely political and it requires considerable imagination to see how that can be regarded as offensive in any way.  That, of course, does not matter.  If it is offensive it is offensive because the views are offensive, which is exactly what the freedom is designed to protect.

FRENCH CJ:   It may be offensive because of the context in which it is put and the circumstances of the addressee.

MR BENNETT:   Your Honour, there is an answer to that.  If one is running a campaign or seeking to advocate support for a campaign against a war and what one is seeking to advocate is basically unpopular, if one can enlist to one’s cause people who are associated with the military or families of people associated with the military, or even families of people who lose their lives in war they, no doubt, would be a very powerful voice in support of that sort of campaign.  Your Honours will see many of the letters seek to exhort the recipients to join the sender of the letter in what is being advocated. 

The United States, as your Honours would know, it is a matter of general knowledge there is an organisation called “Military Families Speak Out”, which consists of the families of deceased and serving soldiers who advocate an end to the wars in Iraq and Afghanistan.  Now no doubt ‑ ‑ ‑

HEYDON J:   No, no I do not know that.  How would one know that?

MR BENNETT:   A matter of conditional notice, your Honour.  It is referred to from time to time in the newspapers, it is on the net.  It is not a necessary part of my argument, in any event.  It just illustrates the point I am making which is that if one can recruit such people to one’s campaign, whether or not these letters are likely to be effective in doing so, they would be a particularly powerful support for what is being advocated, namely an end to the particular military campaigns.  That is a greater reason why these communications can be regarded as falling within the political protection.

Your Honours, I will not go through all the letters.  My learned friend refers to the letter on page 35 which he says is particularly offensive but all that does is say, and I paraphrase, that Jewish people should have higher standards, therefore it is worse for a Jew than other people to be involved in the crimes of the Australian army.  That is generally the political flavour of the letter.

FRENCH CJ:   You are pitching your argument, in any event, on invalidity of the provision insofar as it relates to offensive conduct independently of any particular communication?

MR BENNETT:   Yes, your Honour, I am, but I then submit that if the protection is confined to political communications your Honours should find that these letters squarely fall within that.

HAYNE J:   And what is the relevance, if any, of the desirability or utility of these letters?  It has none, does it, Mr Bennett?  The political freedom is there or it is not.  Why do you seek to defend the utility or lack of offensive character of these letters?  What is the legal point that you seek to make?

MR BENNETT:   Well, it is more a matter for the trial than for today, your Honour, but it goes to my learned friend’s argument that the circumstance of the addressees is what may make the letters offensive and I am simply pointing out that the circumstance of the addressees is something which may go to their political justifiability.

FRENCH CJ:   Not justifiability, perhaps characterisation.

MR BENNETT:   Yes, characterisation I should have said.  That is the word I should have used.  This is not a case like the Brown Case where one sort of adds a few sentences to something which clearly offends and one says, “Oh that brings it within”.  That was a case your Honours recall where there was a detailed article in a university students’ magazine on how to shoplift, giving detailed instructions and detailed advice on methods of shoplifting. 

There were a few sentences at the beginning saying, in effect, “all property is theft, large companies have too much money therefore it is all right to shoplift” and it was sought to be argued that that made the whole article political and the court said, of course, it does not.  It is a little analogous to what occurs in some of the cases in the United States where ‑ ‑ ‑

FRENCH CJ:   The question there was whether the article answered the statutory characterisation of a publication which instructs in crime and then whether that prohibition, the prohibition of publication by operation of provisions of the relevant Act, were within the Lange test.

MR BENNETT:   Precisely, your Honour.  One sees it in some of the American First Amendment cases on pornography where one might have an extremely pornographic book with a one sentence introduction saying, “This book is written as a warning to young girls not to get into cars with strange men.”  That sentence does not give the whole book redeeming social importance.  It is a question of characterisation.  Here one only has to read the letters as a whole to see that they are making – maybe not with the highest forms of advocacy – but they are making a political statement and using the occasion as an occasion to drive that statement home using some hyperbole for that purpose.

HEYDON J:   Mr Bennett, if you compare the vast range of political communications that could be made if you were troubled about the waging of a war in another country with the political communications in these documents, are they not trivial, relatively speaking?  In other words, does that not demonstrate that there is not a significant burden on political communication because there are so many other ways of advocating the desired cause?

MR BENNETT:   No, your Honour.  All it indicates is that the author may not be an expert in the art of political rhetoric.

HEYDON J:   I do not think my question was addressed to that.  If you have some trouble with the war in Afghanistan, it is best to deal directly with politicians not with people whose relatives died in the last 24 hours in the war in Afghanistan. 

MR BENNETT:   Well, your Honour, but there are two answers to that.  First, copies of these letters were sent to government leaders as your Honours see.  But secondly and more importantly, there is a political purpose as I have said in conscripting people in that category to the anti‑war cause.  That explains that aspect of it.

HEYDON J:   What does it mean to distinguish between a significant burden on political communication and a trivial one in this context?  The method chosen, I am repeating myself I suppose, is simply minute, insignificant in comparison with the available and conventional methods.

MR BENNETT:   Your Honour, I would submit not it is not minute.  These are letters sent with copies to government to people who have been immediately affected by the war in a particularly troubling way.  They contain expressions of sympathy and then contain ‑ ‑ ‑

HEYDON J:   That, of course, adds to the offensiveness it might be thought.

MR BENNETT:   Your Honour, that is a view one might take.  The other view one might take is that they are part of the attempt to conscript, however unlikely to succeed, objectively.

HEYDON J:   But you cannot offer condolences for the loss of someone’s son and speak of the dirty body of a pig or say that Hitler was not inferior to them in moral merit.

MR BENNETT:   Your Honour, the writer is drawing a distinction between the parents and the son and it is the parents to whom the sympathy is offered.

FRENCH CJ:   But characterisation of these letters, given the argument that you have been primarily advancing which is about the validity of the legislation, which I understood to be the basis of the challenge and the motions that were moved to quash the indictment, irrespective of the character of the letters may be an undesirable path to follow, especially if it is unnecessary for a variety of reasons.

MR BENNETT:   Your Honour, that is why we put as the alternative submission, if the section is to be confined to communications which are not political communications and if your Honours accept my submission that these letters are in that category, then your Honours should quash the indictment for that reason and allow the appeal and there is no need to go further into constitutional invalidity.  That is all this submission goes to.  The broader submission is that the provision is invalid or, at least, the word “offensive” is invalid.

So for those reasons, your Honour, we submit, primarily, that this is an easy case.  The Chief Justice’s formulation adopted by the learned President is squarely within, in a qualitative sense, what this Court held in Coleman v Power – what five Justices of this Court held in Coleman vPower – was insufficient to protect it under the second limb.  And, for those reasons – and the reasons I have given – otherwise your Honours should allow the appeal and quash the indictment. 

Your Honours, in relation to costs, I do not want to spend any time on that.  It is a matter for your Honours.  Though I know it is a criminal case, there are criminal cases which have been primarily constitutional, where there has been a public interest and if your Honours find for the appellants – particularly if you find on a broader basis – your Honours may well consider it appropriate to make an order for costs.  I will not say more about it than that.

FRENCH CJ:   Thank you, Mr Bennett.  Yes, Mr Reynolds.

MR REYNOLDS:   Do your Honours have a copy of my client’s synopsis of argument?

FRENCH CJ:   Yes, Mr Reynolds.

MR REYNOLDS:   Would your Honours like a moment to have a look at it?

FRENCH CJ:   I think you can take us to it, Mr Reynolds.

MR REYNOLDS:   Okay.  Your Honours will see that the first issue that we raise is the issue of construction.  I think my learned friend, Mr Bennett, has taken your Honours adequately to the test adopted by the Court of Criminal Appeal which is to be found at page 93 of the appeal book.  If your Honours can perhaps have that tabbed because I am going to be coming back to various aspects of it in a moment.  There is not any notice of contention filed by either of my learned friends, Mr Agius or Mr Sexton, who is a party to the appeal below. 

Now, in one sense as with Mr Bennett, my client is content to adopt the construction given by the Court of Criminal Appeal, effectively, for the same reason given by Mr Bennett and, that is, that when your Honours construe, in due course, the authorities, particularly Coleman v Power, then if I can put it this way, my client can live with that construction.

That said, your Honours will have seen from our written submissions - and I would ask your Honours to have to hand the appellant’s written submissions in Monis and also the appellant’s reply in that case because I am going to be taking your Honours briefly to some portions of it - the construction, or the alternative construction, which my client propounds is the construction which is propounded all the way through these proceedings from the time it was in the District Court.  That construction is to be found at paragraph 11 of our submissions in‑chief. 

Your Honours will see there that the definition there propounded is likely to hurt feelings, arouse anger or resentment, or disgust or outrage in a reasonable person, which I think I am correct in saying is its basic dictionary meaning.

Now, as between that construction and that adopted at paragraph 44 by the Court of Criminal Appeal there are relevantly really only three differences, as your Honour will see from our synopsis.  The first and perhaps the most important one is the – this is our synopsis at paragraph 1.4(i) is, if your Honours go to the Chief Justice’s definition of “offensive” in paragraph 44 on page 93 of the appeal book, your Honours will see that there is, in the final sentence of that paragraph, a sort of carve‑out at some level that is removing from the concept of “offensive” the notion of hurt or wounded feelings, at least on the part of the recipient.

Now, our submission, in short, is that that is an unwarranted excision from the usual and natural meaning of the expression “offensive” and if your Honours look at the words in paragraph 44, just above that final sentence, your Honours can see the sort of difficulties which would be presented in a case such as this for the tribunal of fact, that is that one allows for:

resentment, outrage, disgust or hatred –

“anger” and, one assumes, related emotion, but yet at one level hurt or wounded feelings are somehow not to impact on the equation of what is offensive.  Now, this is a matter which we dealt with in our initial submissions at paragraph 15, where we referred to some cases which refer to wounded feelings. 

As your Honours will have seen from the terms of the section, which are set out conveniently in our submissions at paragraph 2, the provision refers to whether or not the relevant use of the post is, in all the circumstances, relevantly offensive.  I submit that the hurt or wounded feelings, in particular hurt or wounded feelings on the part of the recipient, would naturally be included within that concept.

Further, if your Honours go back to paragraph 14 of our submissions in‑chief, your Honours will see there that there are cases referred to which talk about wounded feelings as being the natural and usual meaning of the word “offensive”.  Now, in their submissions, the respondents took issue with this and if your Honours have our reply to hand, in paragraph 3 your Honours will see that we respond to a submission made by my learned friend, Mr Agius - R[30] means the Crown at paragraph 30 of their submissions where it was submitted that a construction of the word “offensive” which included hurt or wounded feelings was unsupported by authority.

Well, again, your Honours, Ms Rubagotti got to work on this and your Honours can see the effect of that research in the remaining lines of that paragraph.  When one looks in greater detail than I regret I say I did in drafting paragraph 14 of the original submissions, when someone gets stuck into the research task the submission made on behalf of the Crown becomes, I respectfully submit, acutely difficult.

I am not going to take your Honours to any of these cases other than to note the last one which is quoted at the bottom of page 1 of our reply wherein the predecessor provision to section 471.12 was the subject of a decision in Court of Sessions, as it used to be called in my home State, where the original provision, although it used the word “grossly”, also was given a judicial definition including “wounded feelings”.

So we submit that the task that my learned friends appearing for the two respondents have in trying to cull out at some level the notion of “hurt or wounded feelings” from the notion of “offensive” is, we submit, a very difficult one.

Can I deal with (iii) which is the second difference, that is, paragraph 1.4(iii) of my synopsis of argument?  That fastens, if your Honours go back to paragraph 44 of the Chief Justice’s judgment, on the words “calculated or likely”.  Now, the point that we have made in our written submissions at paragraph 15 is that “calculated” generally means either likely or intended.  If it is simply meant to mean likely, then one would strike it out of that paragraph on the grounds that it simply reiterates the words which follow.

If, on the other hand, it is getting into a form of mens rea requirement, then I respectfully submit one would not go inserting it in that definition.  The reason is made clear in particular by the submissions filed on behalf of the Commonwealth of Australia in this case at paragraphs 10 and 11. 

I need not perhaps take your Honours to the terms of those paragraphs, but the point that my learned friends make on behalf of the Commonwealth there is that there are in sections 5.61 and 5.62 of the Code respectively, mens rea requirements as to conduct, a mens rea requirement of intention and, as to circumstances, a mens rea requirement of recklessness.

My point, and I apologise for beating around the bush, is that one would not overlay a mens rea requirement of that kind on top of some notion of intention.  So, in short, “calculated” will either mean intended, in which case that does not work with a mens rea provision.  If, on the other hand, it means likely, then you would not stick it in there because of the words “or likely” that follows. 

So that is the second submission which I make by way of difference.  I underline, with respect, a small difference from the Court of Criminal Appeal.  The third matter that I wanted to raise with your Honours and the final matter on construction is a matter which we deal with at paragraph 16 of the appellant’s written submissions.  It relates to the presence of the word “significant” in the definition given by the Chief Justice at paragraph 44.

Now, my learned friend, Mr Bennett, has already said something about the legislative history here and the quite obvious intention on the part of the legislature to delete the requirement of “grossly”.  Now, that, in my respectful submission, does not amount to, in any respect, an invitation to a court to go back and work in a sort of much lower level notion of “grossly” by judicial interpretation.  That is one difficulty. 

A second difficulty we point to in our submissions is that the word “significant”, I would submit, is not a word which one would normally choose to insert into any form of statute creating a criminal offence.  One envisages how this case might proceed eventually at a trial.  The jury, I submit, would almost certainly want to know by way of questioning of the judge how they determine the meaning of “significant”. 

It inevitably raises all sorts of matters of taste and opinion, judgment and the like on the part of the jury which, I submit, ought not appropriately to be in the definition.  If it be the case that the prosecuting authorities are dealing in their view with a likelihood of anger, et cetera, which is probably insignificant then I would submit that is more the sort of situation where the prosecutorial discretion, as it used to be known and still is known, would be exercised or could be exercised not to prosecute or alternatively if, after a conviction, the presiding judge thought that the relevant anger, resentment and what have you which was likely to be aroused was a matter of insignificance, then that is quite obviously a matter which could be taken into account on the issue of penalty.

Now, my learned friend, Mr Bennett, touched on that issue and I would adopt the submissions that he made in relation to penalty.  There has been an attempt at some level by both the Crown in this case and by the Court of Criminal Appeal to focus on the maximum sentence which would or could be imposed for a conviction under this section. 

This is a matter which we deal with at paragraph 5 of our submissions in reply.  We make a number of points there.  The main one is the point Mr Bennett made and that is that that is a maximum penalty and one has to allow for the fact that with menacing and harassing also being alternative charges in this section that the penalty of two years is likely to reflect a serious or aggravated form of use of a post which is menacing and harassing.

Again, your Honours will see from paragraph 5 that my learned juniors have been at work and have given your Honours some examples of the sort of penalty that has been imposed and very often for a conviction on purely offensive use of the post the penalty has been fairly light, certainly light as compared with a two‑year imprisonment.  So, we would submit that it is difficult to use that maximum sentence provision in that way to have it operate to any real extent on the relevant meaning of “offensive”.

My learned friend, Mr Bennett, has also taken your Honours to Coleman v Power and it is perhaps unnecessary to take your Honours to the text of what I will call, relevantly, the four majority Justices, Justices Gummow, Hayne, Kirby and McHugh, but the point that we make for present purposes at this stage at paragraph 1.5 of our synopsis is that regardless of whether one accepts the construction of paragraph 44 of the Court of Criminal Appeal’s judgment or the variations which I have attempted to propound in three respects, one does not, in my submission, come really anywhere near the construction which was given in Coleman v Power in the passages Mr Bennett referred to, namely “intended or likely to provoke unlawful physical retaliation”. The definition that is given at paragraph 44 is quite a material distance, I respectfully submit, from that.

Your Honour Justice Hayne at one point in your judgment in Coleman v Power referred to some of the American case law on the First Amendment and the definition which in effect was adopted by these four Justices in this case is tantamount to what the Americans call “a fighting words” construction and although I am not suggesting that your Honours should be interpreting the implied freedom by reference to First Amendment jurisprudence the point that I would make is that when one talks about “fighting words”, words that are likely to provoke an unlawful physical retaliation, then it is much easier to see why a formulation of a crime in those terms would be compatible with the implied freedom.

HAYNE J:   It is not use of fighting words ‑ ‑ ‑

MR REYNOLDS:   No.

HAYNE J:   It is use of fighting words in public.

MR REYNOLDS:   Quite.  Can I just develop that for a moment with your Honour because your Honour said something to my learned friend about the fact that the delivery of mail is a matter which would, as a matter of common experience, normally occur in private or if there is any public aspect to it, it would be delivery by a postman and one of the points, as I recall, made by your Honour Justice Hayne in the Coleman v Power Case is that when one looks at legislation in this context, it is important to see what the public purpose of it is.

If one is talking about communications which, I would not say by definition but in terms of likelihood are apt to occur privately, then it is a very different situation from the sort of situation that arises in relation to what are sometimes called public order offences, as we had in my home State under what, I think, was known as the Summary Offences Act.  So, I am sure some of your Honours will remember with a greater or lesser degree of alacrity.

The point that I am trying to make and again, perhaps too slowly, is that there is an important distinction to be made not only in terms of the definition adopted in Coleman v Power of the meaning of “insulting”, but also in terms of the relevant public purpose.  That is all I wanted to say about construction, but I emphasise that the three matters which we have raised, comparatively minor in the scheme of things, and I also note that neither of my learned friends are propounding any alternative construction. 

In the last case my learned friend, Mr Hinton, dealt with matters arising on my notice of contention as part of his submissions in‑chief.  Unless your Honour, the Chief Justice, stops me, I am proposing to deal with a matter which arises on my learned friend, Mr Agius’ notice of contention and that is the first limb of the Lange test and I do that in part because it is logically anterior to any discussion of the second limb.

Your Honours will have seen from the joint appeal book at page 135 that my learned friend, Mr Agius, per medium of the Commonwealth Director of Public Prosecutions, maintains that the Court of Criminal Appeal erred in holding that the section, that is section 471.12 of the Criminal Code effectively burdened the freedom of communication about government or political matters, that is, as we say, simply a restatement in substance of the first limb of the Lange test.  The Solicitor‑General for New South Wales in his submissions on behalf of the Attorney‑General of that State - I can take your Honours briefly to this - it deals with this issue at paragraph 27.  This is Mr Sexton’s submission, that is the second respondent’s submissions at paragraph 27, and he submits, notwithstanding the position taken by the Commonwealth Director that this is a case, although, he says, perhaps a rare one where it can be assumed that the first limb question should be answered in favour of Ms Droudis and Mr Monis.

The test on the first limb, your Honours are well familiar with, it was referred to briefly in Wotton v Queensland (2012) 86 ALJR 246. The question is conveniently stated. It may be convenient for your Honours to have this. In paragraph [25], that is:

whether in its terms, operation or effect, the law effectively burdens freedom of communication about government or political matters.

Those words “terms, operation or effect” I will be submitting are important.  In the same paragraph five Justices of this Court stated that the terms of the questions are settled and there is certainly no doubt about that in relation to the first limb and I make the point just briefly that neither of my learned friends attempt to challenge the formulation of the first limb adopted most recently in the Wotton Case.

Now, as it happens, all the four judges in the courts below dealt with this particular issue and Judge Tupman dealt with this issue at paragraph 40 of her judgment.  We perhaps do not need to go to that.  I just mention that to underscore the fact that all of the judges found in my client’s favour on this issue.  The Chief Justice at appeal book page 97 at paragraphs 56 to 57 answered this question in my client’s favour.  Your Honours will see there that he sets out at paragraphs 56, 57 his conclusion.  His Honour’s reasoning is to be found at the beginning of paragraph 53 and going through to paragraph 57.

His Honour at paragraph 55 notes the concessions that were made in relation to the first limb in Coleman v Power and I will be coming back to that in a moment, but the core of his Honour’s reasoning is at paragraph 56. Likewise, the President at paragraph 84 of his judgment at page 108 of the appeal book poses the question in the standard terms on the first limb and comes to the conclusion in that paragraph at the top of page 109 that:

the provision would effectively burden freedom of communication –

Justice McClellan also came to that conclusion at paragraph 108 of his judgment which is to be found at page 116.  This is a matter dealt with – because it is a notice of contention point – in my client’s reply and it is dealt with, if your Honours have that to hand, at paragraphs 10 through 16.  At paragraph 13 – this is the first point we make by way of support for the reasoning of all of the four judges below is that that finding that the first limb was infringed is consistent with, we would submit, a number of decisions in this Court and we have set them out at paragraph 13.

FRENCH CJ:   It is not a matter of infringement of the first limb, is it; it is the engagement of the first limb.  The question is whether the implied freedom is infringed and that requires the second question.

MR REYNOLDS:   Your Honour is right.  I have telescoped things.  The question is whether it effectively burdens freedom of communication and we submit that it does and that there is ample precedent in this Court for that conclusion.

If your Honours look briefly at paragraph 13 of the reply Justice Kirby dealt with it at paragraphs 229 to 232 of Coleman v Power because as your Honours may recall he did not accept that concessions could be made about that so he made that finding.  But the case that I would like to take your Honours to very briefly, in this respect, is the decision in Lange v Australian Broadcasting Corporation [1997] 189 CLR and this, to make a very trite observation, is the case where the first limb was originally articulated. 

I will not take your Honours back to that particular passage.  But the court in this case had to consider – because it was dealing with the law of defamation in New South Wales – it had to look at whether the law of defamation, which is an amalgam in that State, or was at that time, of both statute and the common law, whether those laws, if I can call them that, effectively burdened freedom of communication.  Their Honours in this joint judgment say – this is at page 568 at about point 3 that:

The law of defamation does not contain any rule that prohibits an elector from communicating with other electors concerning government or political matters relating to the Commonwealth.  Nevertheless, in so far as the law of defamation requires electors and others to pay damages for the publication of communications concerning those matters or leads to the grant of injunctions against such publications, it effectively burdens the freedom of communication about those matters.

So what their Honours are there doing is looking at the law of defamation in this State, both common law and statute, and they are looking at the laws as I think your Honour the Chief Justice put to my learned friend, Mr Bennett, and they look at whether those laws effectively burden the freedom of communication, and looking at those laws they find that they do.

Now, one of the themes, in effect, of our submissions on both the first and second limb is to draw a correlation of sorts between the law of defamation and the provisions of section 471.12. But for present purposes the submission is simply this. That when one looks at page 568.4 and looks at the defamation laws and how they proscribe a form of offensive publication and there is a finding that those laws effectively burden freedom of communication, notwithstanding the existence of various defences, then it is, I respectively submit, but a small jump to come to the conclusion that a criminal offence couched in terms of offensiveness of communication via the post fairly easily comes within the first limb.

Now, there are some other cases we have obviously set out at paragraph 13 of our submissions and perhaps it is unnecessary to go to the text of them because in one sense if one goes back to the fons et origo of the formulation of these two limbs of the test and it is clear that ab initio the court was dealing and analysing the first limb of the test in terms that, I respectfully submit, pretty much cover the present case exactly, then there is not much doubt about the first limb and one can understand why the four judges below did not have much doubt about it either.

We have referred in our outline at paragraph 2.6(ii) to concessions which we have noted that were made in Coleman v Power which were picked up in paragraph 14 of our reply and, apart from noting that the concessions were made, I do note that Justice McHugh at paragraphs 78 to 80 noted that the concessions were, as judges sometimes do, properly made. So the short point is that my learned friend, Mr Agius, unsupported by his learned friend, Mr Sexton, has a job to do, I submit, to persuade your Honours that in the current state of authority, that this is a case where there has been no effective burden placed upon freedom of political communication.

KIEFEL J:   But, does the extent of the burden become relevant in any event in relation to the second limb?

MR REYNOLDS:   It must do, your Honour.

KIEFEL J:   Yes.

MR REYNOLDS:   Inevitably, one of the factors – and I think I put this in my list in the last case.  If I did not, I meant to.  I think it reappears in the factors which we have placed at paragraph 3.12 of our outline that the degree of effect on political communication is ‑ ‑ ‑

KIEFEL J:   Well, can we just identify what it is?  On one view, the burden on the overall freedom to communicate political views is the burden not to be offensive, is it not?

MR REYNOLDS:   I think that is a fair characterisation, your Honour.

KIEFEL J:   Now, is that a slight burden or is it an onerous burden in relation to the overall freedom to speak freely about political communications?

MR REYNOLDS:   Can I answer your Honour’s question this way?  It is a burden which is very similar to the burden placed by the law of defamation, except that it must be necessarily greater in the following respects.  First of all, the notion of what is offensive is, if anything, slightly larger than what is defamatory.  And, second of all, is the point we made in our submissions, none of the usual defences which are available in the defamation case are available as defences under this section. 

I think we have said in a footnote in our submissions in‑chief that one has, under the code, defences like infancy and the like.  But, subject to that, there are no defences that bite on the same sorts of matters as your Honour is well familiar with as defences to defamation.  So, I accept that in one sense the response that I am giving you, your Honour, is not quite as ‑ ‑ ‑

KIEFEL J:   No, I understand what you are saying and you are drawing very much on the Coleman v Power approach.

MR REYNOLDS:   Yes, I am, and, if I can just pause there?

KIEFEL J:   I suppose the point – I understand what you say about Coleman v Power and that that might be seen to provide a legal burden on the freedom.

MR REYNOLDS:   Exactly.

KIEFEL J:   But there is very much in this case a flavour of an assumption that political communications would somehow equate robustness with offensiveness and that to say that political communications cannot be offensive is to somehow of itself place a burden which is sufficient to invalidate a law.  Now, do you go that far or do you rely only upon the analogy with the burdens created legally by the analogy with defamation law?

MR REYNOLDS:   This is the approach that I am going to articulate probably tomorrow, but I take as the focus really of my analysis of the section and the implied freedom, I take the judgments in Coleman v Power and particularly I think it is paragraph 199 which is the judgment of your Honour Justice Hayne and Justice Gummow, and I am going to track back through that by picking up the reference in that paragraph to the Lange Case and I am going to suggest that this case is, in a sense, a fortiori of it, first of all because “offensive” is, if anything, a little bit broader than “defamatory”; secondly, because we are dealing here with a criminal offence, not a mere matter of damages; and thirdly, because of the non‑availability of these various defences which we discussed a moment ago.

HAYNE J:   Well, there is a further point, Mr Reynolds, the criminal offence is committed not in public.

MR REYNOLDS:   That is right.

HAYNE J:   It is committed by the use of a public facility but it is not committed in public.

MR REYNOLDS:   Quite.  There is very often in defamation a public aspect to the equation which your Honours are familiar with, but here, as your Honour Justice Hayne says, we are talking about matters that have a private – perhaps a purely private – aspect.

KIEFEL J:   Well, this public/private divide does not, however, necessarily mean that the Parliament cannot legislate with respect to civil standards of behaviour.

MR REYNOLDS:   Well ‑ ‑ ‑

KIEFEL J:   Can I just add to that?

MR REYNOLDS:   I am sorry, your Honour.

KIEFEL J:   That is really what, I think, the Chief Justice and President Allsop were referring to.  But, as I understand your argument, what was said in Lange would really make that an impossible legal conclusion because here, if the Parliament has legislated for such a standard of behaviour occurring in a private domain, it has not permitted for the balance of defences and other matters which would normally balance an offence created by the Parliament.

MR REYNOLDS:   Quite so, and the most direct point is that if one looks at the actual defence articulated in Lange, which I will paraphrase as reasonable discussion of political matters, that particular defence does not exist at all here in relation to this offence of offensive communication.

KIEFEL J:   So could I pose this question for you perhaps for tomorrow?  Is the proper characterisation of the question then, in relation to proportionality, whether or not the creation of an offence of this kind in the way in which it occurs and without the safeguards of defences, and the like, creates a very substantial burden upon the freedom?  Or is it that the law goes too far in seeking to attain an object without giving the safeguards?  I am not quite sure which area it is, it might be the former.

MR REYNOLDS:   Would your Honour mind if I accept the invitation to ‑ ‑ ‑

KIEFEL J:   Yes I will do the same I will think about it now that I have posed it on the run.

MR REYNOLDS:   ‑ ‑ ‑ consider it overnight?  It has been a long day for all of us.

HAYNE J:   In connection with the public/private divide, if you would be good enough to look at paragraph 189 of the joint reasons in Coleman v Power, with particular reference to in what other respects the law regulates, either civilly or criminally, private interaction between people in the form of words. 

MR REYNOLDS:   Would your Honour mind if I consider that overnight as well?

HAYNE J:   Of course.  Because we have here a criminal offence penalising a communication by use of a public system of what is a private communication.

MR REYNOLDS:   I have seen counsel rebuked for asking Justices questions, but with your Honour’s leave ‑ ‑ ‑

HAYNE J:   Stand by.

MR REYNOLDS:   I am, your Honour.  I am ready to duck.  But your Honour said something to my learned friend a little while ago which I took to be, if I may be so bold, floating at least provisionally the possibility that there may be a characterisation issue underlying this case.

HAYNE J:   You are ahead of me, Mr Reynolds, if that is what I was intending.

MR REYNOLDS:   I may be boxing at shadows, your Honour, but I thought your Honour was raising the question of whether this was within the mail power or the post and telegraph as I should ‑ ‑ ‑

HAYNE J:   I was not raising such an issue.

MR REYNOLDS:   I will go back to ‑ ‑ ‑

KIEFEL J:   Just in relation to the question of the mail power, one of the aspects pointed to, I think, particularly by President Allsop was the fact that the post was being used not just for private communication but totally unsolicited.  Now, that gives a slightly somewhere between private and public, I think, domain to it but certainly it is not in the public domain, but this is not a totally private communication by people who have sought it.

MR REYNOLDS:   The opening of mail, of course, will normally, as I think your Honour Justice Hayne either said or implied will normally have a purely private aspect or at least it is a situation where the recipient can control that aspect of things, both in terms of opening the mail in private and, as my learned friend Mr Bennett said, in terms of whether he or she even reads the thing beyond making some preliminary identification as to the contents.

FRENCH CJ: What is the argument you are meeting in relation to the notice of contention? I am looking at pages – at the first respondent’s submissions which commence under the heading “An effective burden?” at 39 and go through to 47 and the primary submission seems to be based upon, as it were, a lightness of touch on the political character, that is section 471.12:

regulates a particular type of communication and one which is not inherently political in its nature:

et cetera.  Then goes on to say, well, this is an incidental and light burden.  That seems to be what is being put, is it not?

MR REYNOLDS:   Something along those lines.  The difficulty is that I have tried to telegraph at this stage is that, inter alia, that runs headlong into the original decision in Lange because one cannot, and this is a theme which, I submit, is going to come up again and again, at least in my

submissions in this case.  If the respondents in this case are content to let Lange lie and they accept the two limbs as stated in that case with, I think, one qualification in Coleman v Power, then, I submit, the proper analysis of Coleman v Power and Lange will lead to them losing it. 

They cannot, I submit, get around not only the way the tests are framed but also, if I can just ask your Honours perhaps to ponder this overnight, the level at which the tests have been applied, particularly in Lange, but also in Coleman v Power, that is one has not only the formulation of these two tests but the manner and level at which they have been applied, in particular to the law of defamation which has an obviously fairly close analogy with any talk of offensive communication.

FRENCH CJ:   I think my concern was whether you were presenting an argument that was more wide‑ranging than was necessary to deal with the argument that has been put against you but, in any event, we can return tomorrow and ‑ ‑ ‑

MR REYNOLDS:   I am sorry, your Honour, if I did not answer that directly, but it is not a wide‑ranging argument on my part.  We submit that, in effect, it is a wide‑ranging argument on my learned friend’s part that needs to confront these various decisions.  If the Court pleases.

FRENCH CJ:   Yes, all right, thank you.  The Court will adjourn until 10 o’clock tomorrow morning.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 4 OCTOBER 2012