Summary The High Court of Australia has split 3:3 on whether a provision of the Criminal Code (Cth) making it an offence for a person to use a postal or similar service in an offensive way is invalid as an impermissible burden on the freedom of communication about government or political matters implied in the Australian Constitution (“implied freedom”). French CJ, Hayne and Heydon JJ separately answered the question in the affirmative, while Crennan, Kiefel and Bell JJ jointly answered in the negative. Pursuant to section 23(2)(a) of the Judiciary Act 1903 (Cth), which deals with equally divided opinions of the Court, the decision appealed from — that of the NSW Court of Criminal Appeal that the provision is valid — was affirmed.
Section 471.12 of the Code provides that a person is guilty of an offence, and liable to a maximum of two years’ imprisonment, if:
(a) the person uses a postal or similar service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
In April 2011, Mr Monis was charged on indictment in the District Court of NSW with 13 offences under this section. Ms Droudis was charged on the same indictment with eight counts alleging she aided and abetted the commission of some of the offences by Mr Monis.
The counts against Mr Monis alleged amongst other things that, between 2007 and 2009, he sent letters via Australia Post to parents and relatives of soldiers killed on active service in Afghanistan. The letters were critical of Australia’s involvement in that country and the part played in it by the deceased soldiers. For example, one of the letters called the deceased a murderer of civilians, referred to his body as “the dirty body of a pig” and described Hitler as not inferior to him in moral merit.
All but one of the counts against Mr Monis alleged use of a postal service in an “offensive” way. The remaining count, which is not relevant for present purposes, alleged use in a “harassing” manner.
At their joint trial in the District Court, each accused filed a Notice of Motion seeking to have the indictment quashed on the ground that section 417.12 is invalid because it infringes the implied freedom.
Tupman DCJ, applying the test laid down by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (“Lange”) as modified in Coleman v Power (2004) 220 CLR 1 (“Coleman”), held that the provision did not infringe the implied freedom and therefore dismissed the motions.
According to that test, in determining the validity of a law alleged to infringe the implied freedom, two questions must be asked:
(i) Does the law effectively burden freedom of communication about government or political matters, either in its terms, operation or effect (“the first Lange question”); and
(ii) If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the system of representative and responsible government prescribed by the Constitution (“the second Lange question”).
If the answer to the first question is “yes” and the second “no”, the law is invalid.
Tupman DCJ accepted that the law burdens political communication for the purposes of the first question. However, her Honour held that the law was reasonably appropriate and adapted to serve the legitimate ends of protecting “the integrity of the post”, preventing beaches of the peace which might arise out of the receipt of an offensive communication, and preventing harm in the nature of wounded feelings on the part of a recipient.
The accused appealed Tupman DCJ’s decision to the NSW Court of Criminal Appeal, which unanimously dismissed the appeals, albeit for different reasons. The accused then appealed, with special leave, to the High Court.
Construction of the impugned provision
As in the courts below, all the justices of the High Court considered that a narrow construction of section 471.12 and in particular the term “offensive” was required, although the particular construction adopted and method of deriving it varied.
Hayne J held that the Court of Criminal Appeal was right to conclude that the provision is to be construed as requiring a “strong reaction” and was content to proceed on the footing that the section bears the meaning adopted by at least a majority of that Court — namely, that for the use of a postal service to be offensive under section 471.12 it must 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”.
French CJ explicitly agreed with the construction adopted by the Court of Criminal Appeal. Such a construction, his Honour held, accorded with the principle of legality in its application to freedom of expression, the need to construe a criterion of serious criminal liability narrowly where possible and the importance of postal and other services to the dissemination of information and opinion. However, his Honour observed that “the formulation of the purposes of the provision, expressed in largely metaphorical terms by reference to its application to postal and similar services, was not of assistance in [its] construction”.
By contrast, Crennan, Kiefel and Bell JJ considered that “no conclusion” could be reached about the section’s construction “without identifying its purpose”. That purpose, their Honours held, is not “merely” to ensure civility of discourse between users of the postal service but, as the section is largely concerned with unsolicited communications, is “to protect people from the intrusion of offensive material into their personal domain.” In light of that purpose, the principle of legality and the statutory history and context, their Honours concluded that the provision is directed at “a degree of offensiveness in the higher end of the spectrum”.
The first Lange question
The justices were also agreed that, notwithstanding the narrow constructions they adopted, the provision burdened the implied freedom.
According to French CJ, with whom Heydon J agreed, the section must, given its broad scope, be taken to effectively burden the implied freedom. In coming to that conclusion, his Honour rejected the submission that the reasonable person test limits the kinds of communications caught by the provision to those “outside the accepted boundaries of Australian political debate and at the outer fringes of political discussion.” On the contrary, his Honour noted that “reasonable persons would accept that unreasonable, strident, hurtful and highly offensive communications fall within the range of what occurs in what is sometimes euphemistically termed ‘robust’ debate.”
Hayne J came to the same conclusion and, in doing so, forcefully rejected the submission that a provision that works only a “little” or “insubstantial” burden does not “effectively” burden the implied freedom for the purposes of the first Lange question. Rather, the expression “effectively burden” means nothing more complicated than that the effect of the law is to prohibit or limit the making or the content of political communications.
Crennan, Kiefel and Bell JJ, on the other hand, accepted that “an effect upon political communication which is so slight as to be inconsequential may not require an affirmative answer to the first limb enquiry”. However, their Honours held that section 471.12 does not fall within that category and “[o]nce a real effect upon the content of political communication is seen as likely, attention must be directed to the second limb of the test.”
The second Lange question
Despite their broad agreement on construction and the first Lange question, the members of the Court divided sharply on the second Lange question.
French CJ, with whom Heydon J agreed, held that “[h]aving regard to the scope of the term ‘offensive’ as properly construed and the range of the ‘postal or similar services’ to which s 471.12 applies, it is not possible to define its purpose by reference to common characteristics of such services.” Rather, its purpose is “properly described as the prevention of the conduct which it prohibits”. That, his Honour held, “should not be regarded as a legitimate end not least because ... its very breadth is incompatible with its implementation in a way that is consistent with the maintenance of the [implied freedom]”. In light of the latter point, his Honour held that the two limbs of the second Lange question —whether the section serves a legitimate end (“the first limb”) and, if so, whether it serves that end in a manner compatible with the constitutional imperative (“the second limb”) — “collapse into one” and the law is therefore invalid.
Hayne J also concluded that, on the ordinary processes of statutory construction, the offensive limb of section 471.12 has only one object: to penalise, and thereby prevent, the use of a postal or similar service in a way that would give offence. In doing so, his Honour rejected as having no basis in the statutory language each of the other objects contended for by the parties and adopted in some of the judgments below. For example, the section’s purpose cannot be the prevention of violent retaliation because the likelihood of violence is neither a necessary nor a sufficient element of the offence.
That being so, his Honour went on to hold that the section does no more than regulate civility of discourse: it does not, for example, protect the “integrity of the post” or make any real contribution to keeping the peace. And, following Coleman, regulating civility of discourse is not a legitimate end — a conclusion, it was said, supported by the fact that the general law has never recognised any right or interest not to be offended. Accordingly, unlike French CJ, Hayne J was of the view that the second limb of the second Lange question did not arise for consideration. However, his Honour noted that, if regulating the civility of discourse was a legitimate end, the fact that the provision makes all seriously offensive uses of a postal service an offence, including those uses where the user would have a defence of truth or of qualified privilege to a claim for defamation founded on that use, demonstrates that the section goes too far and is invalid.
By contrast with French CJ, Hayne and Heydon JJ, the female justices of the Court held, as noted above, that the purpose of section 417.12 was “to protect people from intrusion of offensive material into their personal domain”. In light of the narrow construction of offensiveness which they adopted, their Honours held that the section goes no further than is reasonably necessary to achieve its protective purpose. Further, they held that the protective purpose was not incompatible with the constitutional imperative or the implied freedom. The remaining question, then, was whether the section imposes “too great” a burden upon the implied freedom by the means it employs. Their Honours held that it did not because communications of the kind prohibited by section 471.12 are limited to those which are of a seriously offensive nature. That does not “suggest an effect upon freedom which could be regarded as extensive. It does not prevent communications of a political nature which do not convey such offensive matter.”
This decision, together with Attorney-General for South Australia v Corporation of the City of Adelaide and Ors  HCA 3 which was handed down on the same day and is also reviewed in this Bulletin, is the latest in an important series of recent High Court decisions considering the implied freedom.
Strictly speaking, given that the Court’s opinion was equally divided, the decision is of limited precedential value. Indeed, while the decision disposes of the appeal and binds other courts in Australia to arrive at a like result on the issues dealt with, it establishes no principle of precedent having authority in the High Court: Re Wakim (1999) 198 CLR 511, 571 (Gummow and Hayne JJ).
That said, the decision is instructive in at least three respects. First, it confirms that the test for invalidity is that set out in Lange as modified in Coleman — on that point, all six justices were agreed. However, at the same time, it throws into sharp relief the key points of disagreement amongst the members of the bench that arise in applying that test. One of those is whether, contrary to Hayne J’s view, the term “effectively” in the first Lange question has any work to do. Another is the nature of the enquiries that must be undertaken in answering the second Lange question and whether, as Crennan, Kiefel and Bell JJ would have it, those enquiries are best described as a form of proportionality analysis and, if so, the extent to which comparisons may validly be drawn with proportionality analyses in other jurisdictions. A third is the degree of harm that conduct must inflict before a law which seeks to prevent it may be considered legitimate. French CJ, Hayne J and Heydon J’s judgments suggest a high threshold, while the joint judgment seems content with something less. Finally, in what is not said, the decision highlights that aspect of the Lange test that remains most unclear — namely what the “maintenance of the system of representative and responsible government” actually requires.
With two changes to the composition of the bench since the decision was handed down, only time will tell whether and how the answers to those questions will change and develop.
The decision can be found online at: http://www.austlii.edu.au/au/cases/cth/HCA/2013/4.html
Rowan Minson is a solicitor at King & Wood Mallesons and a secondee at the Human Rights Law Centre