During the early 1990’s a number of decisions were made in the High Court that significantly influenced parliament’s capacity to regulate speech. The first case to establish an implied right of freedom of political communication was Nationwide News v Wills.
This implied constitutional protection has had a significant effect on the development of ‘public order’ laws in Australia where a freedom of speech might be in issue. In recent times the decision in Monis has left the breadth of this protection on an uncertain footing that may have significant implications for any laws that might impair political communication.
Theophanous and Lange
The cases of Theophanous v Herald & Weekly Times and Lange v ABC established some early principles around how the court might read impugned laws in relation to the implied constitutional right of freedom of political communication establishing a defence to the tort of defamation. Theophanous along with Stephens restricted the legislative and executive power of the states and also overrode incompatible principles in State statute and common law.
Lange established a two step test for whether a law unconstitutionally burdens on the freedom of political communication. Firstly by asking does the law effectively burden freedom of communication about government or political matters, if the answer is no then the law is held to be valid. If the answer is yes a second question applies, that being is the law reasonably and appropriately adapted to serve a legitimate end… which is compatible with the Constitutions system of democracy.
Coleman v Power
Both Theophanous and Lange were discussed in Coleman v Power , where Mr Coleman had been charged with offences under s 7 (1)(d) and also s 7A(1) of the Vagrants, Gaming and Other Offences Act 1931 (QLD) (VGOOA). Prior to reaching the High Court the Queensland Court of Appeal held that s 7A(1) was beyond the scope of the Queensland parliaments power as it did not pass the test set out in Lange and therefore the charges relating to that section should be set aside. The Queensland Court of Appeal held that s 7(1)(d) was valid. On appeal to the High Court held that s 7(1)(d) was valid however was more limited in its application than determined by the lower courts, with Gummow, Kirby and Hayne JJ stating that only insults that might illicit an unlawful physical retaliation or were reasonably likely to do so were the subject of the offence. The dissenting view of McMurdo P appears to have influenced the Queensland Governments response to restructuring the offence.
Critical Discussion around the Introduction of the Summary Offences Act 2005 (QLD)
In 2003 the Queensland Government added a new section to the VGOOA entitled ‘Public Nuisance’, most likely in response to the decision in the Queensland Court of Appeal in Power v Coleman. In 2005 the VGOOA was repealed and replaced with the Summary Offences Act 2005 (QLD) (SOA). At the time there was significant public pressure to address drunken behaviour that was said to impair the general public’s enjoyment of public places. To this end S 5 of the SOA states that the object of the Act is to ensure the use of public places without interference from acts of nuisance from others.
The use of the word ‘nuisance’ is clumsy when reviewing its practical effect. Furthermore, the use of ‘public nuisance’ in s 6 of the SOA differs substantially from other jurisdictions where ‘offensive behaviour’ is used, of particular relevance is legislation in NSW which was noted by a review by the CMC.
This may well be due to the majority in Coleman finding that a certain level of ‘seriousness is required before ‘offensive’ will be an offence. The subjective interpretation of what might constitute a nuisance, particularly when an officer does not require a complaint from the public to support the offence seems to be poorly wielded and applied by the Queensland police resulting in what might be unnecessary charges being laid. This has appears to have placed a further burden on the Courts who now must carry out a role of not only applying the law but reviewing police discretion. Through case law we can see that the courts have adapted their views on offensive, or nuisance behaviour to remain in line with social values which have changed over time which seems contrary to the interpretation of police.
The inclusion of an element whereby behavior must interfere with a person’s peaceful passage through or enjoyment of a public place should in theory provide a limitation to the powers the police can use to charge a person with public nuisance to prevent a catch-all situation.
Also, as an effect of s 6(2)(b) of the SOA, by introducing a purpose, or a legitimate end for the offence, such as protecting the public’s enjoyment of public places, the law is more likely to pass the test set out in Lange than the previous offence which had no such direct purpose and merely prohibited certain communications.
The fact the previous law in the VGOOA merely prohibited certain communications left it open to an attack based on constitutional invalidity as discussed in Lange. This issue was later affirmed in Attourney-General (SA) v Corporation of the City of Adelaide, where it was held that the local by-laws that prohibited preaching or distributing printed matter on a road that did so in the interest of public safety were valid.
The numerous interpretations by the High Court of the term ‘insulting’ in Coleman as set out in s 7(1)(d) of the Vagrants Act appear to have led to its omission in the SOA. It might well be assumed that given the object of the SOA it is unlikely that the legislature saw the bar for the offence being an act of nuisance of such a high level as to illicit a physical retaliation as suggested by Gummow, Kirby and Hayne JJ.
The inclusion of ‘without reasonable excuse’ in the offence adds yet another barrier to a freedom of political communication by turning a possible defence in to an element of the offence. The effect therefore requires the accused to negative the charge in what effectively reverses the burden of proof, placing further potential limitations on the freedom of political communication.
The effect of Monis on this issue could be substantial, and potentially fatal to s 6 of the SOA and other laws such as s 46 of the Criminal Code (QLD). In a 3:3 split that mirrored the genders of the judiciary the female judges found that the freedom of political communication did not extend to personal insults and offensive assertions. In contrast however the three men of the bench said that the impugned law was invalid. The critical discussion focused not around whether the appellants conduct was morally acceptable or acceptable only in scenarios that are palatable to us, the decision discussed whether the implied right existed or it did not and the split decision left that interpretation on a knife edge.
The decision in Monis suggests that simply because a person’s conduct is not agreeable to another does not appear to suggest that it does not bear the protection of the Constitution. This has overarching implications for the breadth of laws that may even slightly infringe any potential for political communication.
What is considered political communication has been widely discussed since the birth of the implied constitutional right however, its meaning continues to be interpreted in almost as many different ways as judges who have been faced with it.
What can be seen in the development of laws following the birth of the freedom of political communication protection is that the High Court has consistently set boundaries for legislators to work within where free speech might be in issue. Through history we can interpret that those boundaries seem to err on the side of supporting reasonable political communication. The prohibition of such conduct continues to be limited by the High Court much to the chagrin of the Government. If it was left to the male members of the bench in Monis, seditious acts might be protected by the implied right to freedom of political communication.