In the case of Monis v The Queen ( HCA 14) the High Court of Australia considered familiar issues concerning offensive communications and freedom of expression. The defendant, Man Haron Monis, is alleged to have written letters to the families of soldiers killed in action in Afghanistan. While expressing sympathy to the families, the letters were critical of Australia’s involvement in Afghanistan and of the soldiers and the part they had played in the war, referring to the soldiers in ‘a denigrating and derogatory fashion’.
Monis was charged with 13 counts of using a postal or similar service to menace, harass or cause offence contrary to s471.12 of the Australian Criminal Code which provides;
“A person is guilty of an offence 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.
Penalty: Imprisonment for 2 years.”
Twelve of the charges related to ‘offensive’ use of the postal service, and one to using the postal service to harass. Ms Droudis was charged on the same indictment with eight counts of aiding and abetting the commission of some of the offences. Mr Monis and Ms Droudis both sought to have the indictment quashed in the District Court on the grounds that s471.12 was invalid as it infringed the right to freedom of political communication as implied by the Australian Constitution. The Constitution prohibits parliament from enacting any law that restricts freedom of communication on government and political matters, unless such law is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government in Australia.
The District Court found both of these requirements satisfied and dismissed the motion. The appellants appealed to the Court of Criminal Appeal, dropping their argument in relation to harassment. The appeal was thus only concerned with the constitutionality of s 471.12 in so far as it relates to ‘offensive’ uses of a postal service. On this question, the Court of Criminal Appeal found s 471.12 to be valid, and the appellants appealed to the High Court.
In a judgment handed down on 27 February 2013 the High Court dismissed the appeal. The court was split 3-3 with French CJ, Hayne and Heydon JJ giving separate judgments allowing the appeal and Bell, Crennan and Kieffel JJ dismissing the appeal in a joint judgment.
In determining whether s471.12 infringed the implied right to political communication the court applied the test derived from the earlier case of Lange v Australian Broadcasting Corporation. The Lange test has two limbs;
(1) Does the law effectively burden freedom of communication about government or political matters?
(2) If so:
- does the law have an object that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? and
- is the law reasonably appropriate and adapted to achieving that legitimate object or end?
The Court was unanimous in finding that s471.12 effectively burdened the implied right to freedom of communication about government or political matters. Political communication may by its very nature be offensive, indeed Hayne J noted that, “History, not only recent history, teaches that abuse and invective are an inevitable part of political discourse” . S471.12 applies without distinction to the nature of the communication and so will plainly effect the communication of political ideas.
Where opinions did differ however, was on the issue of the purpose of s471.12. The District Court had found that s471.12 had three purposes;
- To protect the “integrity of the post both physically and as a means of communication in which the public can have confidence”;
- To prevent breaches of the peace which might arise out of the receipt of an offensive communication;
- To prevent harm in the nature of wounded feelings, anger, resentment, disgust or outrage on the part of the recipient.
The High Court did not agree. Crennan, Keifel, and Bell JJ all placed weight on the nature of postal communications as being often unsolicited and difficult to avoid; anyone who receives a letter addressed to them is likely to open and read it. The judges therefore held that the purpose of s471.12 was to protect people from, “the intrusion into their personal domain of unsolicited material which is seriously offensive” . Further, they found that any burden placed upon political communication by s471.12 was merely incidental as;
“communications of the kind which are prohibited by s 471.12 are limited to those which are of a seriously offensive nature. This does not suggest an effect upon the freedom which could be regarded as extensive. It does not prevent communications of a political nature which do not convey such offensive matter” .
For these reasons, the judges held that the Lange test was satisfied; s471.12 does not impermissibly burden the implied freedom of communication of political ideas and thus the appeal should be allowed. French CJ, Hayne and Heydon JJ disagreed, holding that the purpose of s471.12 was simply to prevent the postal service from being used in a way that would cause offence. Hayne J stated;
“This is not a legitimate object or end. It is not compatible with the maintenance of the constitutionally prescribed system of government and its necessary incident the freedom of political communication. The section goes no further than maintaining the civility of discourse carried on by means of a postal or similar service. Section 471.12 does not protect the “integrity of the post”. It makes no real or substantial contribution to keeping the peace. And it was not shown to be directed to achieving any further social good other than penalising, and so protecting against, conduct that is offensive.” 
French CJ also highlighted the importance of the postal system as a mechanism of political communication and as an essential aspect of the dissemination of information and opinion, and went on to observe that;
“References to the promotion or protection of postal and similar services, the integrity of the post and public confidence in the post do not define in any meaningful way a legitimate end served by s 471.12. Its purpose is properly described as the prevention of the conduct which it prohibits. That is the prevention of uses of postal or similar services which reasonable persons would regard as being, in all the circumstances, offensive. That should not be regarded as a legitimate end not least because, as explained below, its very breadth is incompatible with its implementation in a way that is consistent with the maintenance of that freedom of communication which is a necessary incident of the system of representative government prescribed by the Constitution.” 
French CJ, Hayne and Heydon JJ therefore held that such a purpose was not compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and thus the second limb of the Lange test was not satisfied.
As the judgment in Monis makes clear, the provisions of s471.12 bear some similarities with domestic legislation; both s127(1)(a) of the Communications Act (2003) and s1(1) of the Malicious Communications Act (1988) establish offences based on sending articles or messages of a ‘grossly offensive’ nature. s127(1)(a) has received much attention in recent months following some high profile prosecutions. This has led the DPP to issue interim guidelines on prosecuting cases involving communications sent via social media and to launch a public inquiry into the issue (which recently closed).
The concerns expressed in Monis by French CJ, Hayne and Hendon JJ with regards to s471.12 highlight some of the issues with criminalising ‘offensive’ conduct more generally. As French CJ noted ‘offensive’ is a highly subjective concept, encompassing a wide range of behaviour; “It may describe conduct which would cause transient displeasure or irritation and also conduct which would engender much more intense responses” . The existence of criminal offences based on this highly subjective concept, “places in the hands of the Court, mediated by the emotional reactions of imaginary reasonable persons, a judgment as to whether the content is within or outside the prohibition” . Even Crennan, Kiefel and Bell JJ acknowledged that, “the word ‘offensive’ may be problematic in statements of what constitutes a criminal offence on any view”.
Aside from the definitional difficulties, it is questionable whether it is within the proper remit of the criminal law to police ‘offensive’ conduct at all. As I have noted in an earlier post on this blog, restricting freedom of speech because a comment is offensive is dangerous territory. There is no right not to be offended, nor should there be. Being offended is the price we pay for freedom of expression. I’m sure that many people will not have much sympathy for the appellants in Monis; the letters they are alleged to have sent were undoubtedly offensive and must have been upsetting to the families who received them. However, it is important not to let distaste for the particular circumstances of this case colour ones views on freedom of expression more generally, particularly with regards to expression of political views. As Hayne J noted in Monis;
“Particular attacks may be admired, others condemned. But admiration or condemnation depends not upon whether offence is given but upon the content of the views that are advanced or attacked and the identity of those associated with those views. Great care must be taken in this matter lest condemnation of the particular views said to have been advanced by the appellants, or the manner of their expression, distort the debate by obscuring the centrality and importance of the freedom of political communication, including political communications that are intended to and do cause very great offence.” 
Ultimately, the freedom to express only innocuous, unobjectionable and inoffensive opinions is no freedom at all.
Eloise le Santo is a trainee barrister at Matrix Chambers.