The appellants were charged under s 471.12 of the Criminal Code (Cth), which prohibits the use of a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, "menacing, harassing or offensive". Last year I noted that in Monis v R; Droudis v R [2011] NSWCCA 231 the Supreme Court of New South Wales, Court of Criminal Appeal determined that the offence of using a postal service to offend - within s 471.12 of the Criminal Code 1995 (Cth) - does not infringe upon the implied constitutional freedom of political communication.
The High Court dismissed appeals by Monis and Droidis from Supreme Court's decision. One appellant was charged with 12 counts of using a postal service in an offensive way and one count of using a postal service in a harassing way, and the other appellant was charged with eight counts of aiding and abetting in the commission of some of those offences.
In the District Court of New South Wales, the appellants had unsuccessfully sought orders quashing the indictment on the basis that s 471.12 was invalid because it was inconsistent with the implied constitutional freedom of political communication.
Tupman DCJ accepted that the term "offensive" could cover "legitimate political or governmental discourse or communication", holding that the purposes of s 471.12 are to -
- protect the "integrity of the post both physically and as a means of communication in which the public can have confidence";
- prevent breaches of the peace which might arise out of the receipt of an offensive communication;
- prevent harm in the nature of wounded feelings, anger, resentment, disgust or outrage on the part of the recipient.
The Court of Criminal Appeal dismissed an appeal to that Court. By special leave, the appellants appealed to the High Court.
The High Court unanimously held that s 471.12 restricted political communication, but divided in assessing the purpose of s 471.12.
Three Justices (Crennan, Kiefel and Bell JJ) would have dismissed the appeals, holding that the section protects against the misuse of the postal service to deliver seriously offensive material into a person's home or workplace in a manner which is compatible with the system of representative and responsible government established by the Constitution. Three Justices (French CJ, Heydon and Hayne JJ) would have allowed the appeals, holding that the end pursued by the section is neither legitimate nor implemented in a manner that is compatible with the constitutional system of government. Heydon J commented that
Close examination of the implied freedom of political communication would involve analysis of these issues. That examination may reveal that it is a noble and idealistic enterprise which has failed, is failing, and will go on failing. That close examination cannot usefully take place until some litigant whose interests are damaged by the implied freedom argues in this Court, with leave if necessary, that the relevant authorities should be overruled. No endeavour of that kind was made in these appeals. Hence these appeals offered no occasion for close examination of the relevant questions. On the existing law, there is no alternative but to make the orders proposed by Hayne J – a result which, some may think, demonstrates how flawed that law is.Section 23(2)(a) of the Judiciary Act 1903 (Cth) provides that where the High Court is equally divided in opinion, the decision appealed from shall be affirmed.
In Attorney-General for the State of South Australia v Corporation of the City of Adelaide & Ors [2013] HCA 3 the Court considered claims by the Corneloups, noted here in a comment on The Corporation of the City of Adelaide v Corneloup & Ors [2011] SASCFC 84.
A majority of the High Court allowed an appeal against a decision of the Full Court of the Supreme Court of South Australia, which had held that a by-law made by the Corporation of the City of Adelaide (ie the Adelaide city council) infringed the implied constitutional freedom of communication on government and political matters. That by-law served to prohibit people from preaching or distributing printed matter on any road to any bystander or passer-by without permission, with for example restriction on action to
- preach, canvass, harangue, tout for business or conduct any survey or opinion poll provided that this restriction shall not apply to a designated area as resolved by the Council known as a “Speakers Corner” and any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal, State or Local Government Election or during the course and for the purpose of a Referendum; ...
- give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter, provided that this restriction shall not apply to any handbill or leaflet given out or distributed by or with the authority of a candidate during the course of a Federal, State or Local Government Election or to a handbill or leaflet given out or distributed during the course and for the purpose of a Referendum.
The Corneloups each commenced proceedings in the District Court of South Australia, seeking a declaration that the impugned provisions in the by-law were invalid. The District Court declared that parts of the impugned provisions exceeded the by-law making powers conferred on the Corporation by the Local Government Act 1934 (SA) and the Local Government Act 1999 (SA). An appeal from the District Court's decision was dismissed by the Supreme Court, which held that the impugned provisions were not invalid for want of compliance with the Local Government Act but infringed the implied constitutional freedom of communication on government and political matters. As one student is wont to comment, Lange matters.
By grant of special leave, the Attorney-General for South Australia (a party to the appeal in the Full Court) appealed to the High Court.
A majority of the High Court held that the Local Government Acts indeed empowered the Corporation to make the impugned provisions, which were a valid exercise of the council's statutory power to make by-laws for
- the good rule and government of the area, and
- the convenience, comfort and safety of its inhabitants.
