Ferguson v Walkley & Anor  VSC 7 (31 January 2008) Under ss 17(1)(c) and 17(1)(d) of the Summary Offences Act 1966 (Vic), it is an offence to use insulting words and behave in an insulting manner in a public place. In this decision, Harper J held that these sections are subject to the decision in Coleman v Power (2004) 220 CLR 1 (that is, ‘whether the impugned behaviour is so deeply or seriously insulting, and therefore so far contrary to contemporary standards of public good order, as to warrant the interference of the criminal law’). The Court held that, the effect of such an interpretation renders the provisions of the Summary Offences Act consistent with the right to freedom of expression enshrined in s 15 of the Victorian Charter.
Mr Ferguson was convicted of two charges under the Summary Offences Act. These charges arose out of two incidents in which he swore at the police, using insulting words in a public place contrary to s 17(1)(c), and behaving in an insulting manner in a public place contrary to s 17(1)(d). In the first incident, the police officers were called to attend at the Commercial Hotel, whereFergusonhad refused to leave the premises. Upon leaving and walking onto the street, Ferguson yelled insults at the police officers for a period of five minutes, using phrases with the words ‘f***’, ‘c***’ and so on. The second incident occurred when the police officers attendedFerguson’s residence after complaints were made about loud music, andFergusonagain used similar language.
Fergusonappealed to the Supreme Court of Victoria, arguing that the magistrate had erred on the ground that words are not ‘insulting’ within the meaning of the Summary Offences Act unless they are intended, or are likely, to provoke unlawful physical retaliation. Ferguson submitted that there could be no reasonable likelihood of unlawful retaliation since the words were directed at police; and that it must be assumed that the police would not retaliate unlawfully.
Justice Harper rejected Ferguson’s submission, commenting that the same argument had been rejected by a majority of the High Court in Coleman v Power. His Honour also highlighted the inappropriateness of adopting a test based on the likelihood of retaliation by the victim, and adopted the test laid down by Gleeson CJ in Coleman v Power, that is, ‘whether the impugned behaviour is so deeply or seriously insulting, and therefore so far contrary to contemporary standards of public good order, as to warrant the interference of the criminal law’. Based on this reason, Harper J then concluded thatFerguson’s behaviour in each instance met those criteria and was thus contrary to the relevant provisions of the Summary Offences Act. Accordingly, the appeal was dismissed.
Relevance for the Victorian Charter
Justice Harper noted that criminalising offensive language or conduct has the potential to interfere with the rights protected by s 15 of the Charter. Section 15 enshrines the right to freedom of expression, which includes the ‘freedom to seek, receive and impart information and ideas of all kinds’. His Honour made no further explicit reference to s 15, but commented on the potential effect of s 17(1)(c) of the Summary Offences Act on ‘freedom of speech’. Harper J’s conclusion was that Ferguson’s swearing was devoid of intellectual content or value, and so the freedom of speech issue was not relevant in this case.
Regardless, s 15(3)(b) of the Charter recognises that ‘the right may be subject to lawful restrictions reasonably necessary … for the protection of national security, public order…[emphasis added]’. Under the test adopted, an offence occurs only where ‘the impugned behaviour is so deeply or seriously insulting, and therefore so far contrary to contemporary standards of public good order, as to warrant the interference of the criminal law [emphasis added]’. Therefore, these provisions of the Summary Offences Act operate as examples of the lawful restrictions envisaged by the Charter itself.
The greatest challenge, and the greatest risk of injustice, in respect of the right to freedom of expression, lies with determining what level of behaviour is sufficiently ‘contrary to contemporary standards of public good order’. On this point, Harper J observed that consideration of the particular context is critical. For example, the use of personally offensive language in the course of a public statement of opinions on political and government issues would not of itself contravene the provisions. On the other hand, a contravention would occur where a ‘mindless barrage of insults’ is directed at police who are in the course of executing their duties, while other members of the public are present, such as in the present case.
No doubt the greatest difficulty will arise in cases that lie between these extremes. In each scenario, the right to freedom of expression needs to be balanced against any competing public interests. However, assuming appropriate consideration is given to the relevant factual context, this decision suggests that these provisions of the Summary Offences Act are not, prima facie, inconsistent with s 15 of the Charter.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2008/7.html.
Joseph Ip, Human Rights Law Group, Mallesons Stephen Jaques.