In Victoria the Scrutiny of Acts & Regulations Committee of the State Parliament has criticised [PDF] proposed amendments to the Gambling Regulation Act 2003 (Vic) regarding the offence - punishable with a fine of up to $11,000 - of insulting the Minister for commercial gambling.
The Committee comments that -
Freedom of expression – Offence to insult Minister or authorised person exercising due diligence powers relating to legacy monitoring systemsThat HCA decision is Coleman v Power [2004] HCA 39, 220 CLR 1.
Summary: The Committee refers to Parliament for its consideration the question of whether or not new section 3.8.11, which creates an offence of insulting the Minister for Gaming or an authorised person while they exercise due diligence powers relating to legacy monitoring systems, is reasonably necessary to respect those people’s rights and reputation.
The Committee notes that clause 32, inserting a new section 3.8.11 into the Gambling Regulation Act 2003, makes it an offence to "assault, obstruct, hinder, threaten, abuse, insult or intimidate" the Minister for Gaming or authorised persons exercising due diligence powers relating to legacy monitoring systems.
Charter s. 15(3) [discussed recently] provides:
Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary‐The Statement of Compatibility remarks:
(a) to respect the rights and reputation of other persons; or
(b) for the protection of national security, public order, public health or public morality.
New section 3.81.11 is a lawful restriction that is reasonably necessary to respect the rights and reputation of the minister and authorised persons and complies with section 15(3)(a) of the charter act. The limitation is authorised by law and is reasonably necessary to ensure that the minister or authorised person is able to exercise their powers under the act without hindrance. The assault, obstructions, hindrances, threats, abuse, insults or intimidation that is prohibited under this new section would offend the minister’s or authorised persons’ right to liberty and security under section 21 of the charter act, as well as the right to privacy and reputation under section 13 of the charter act. It follows that new section 3.8.11 is compatible with the freedom of expression under section 15 of the Charter Act.While the Committee agrees that the criminalisation of assaults, obstructions, hindrances, threats, abuse and intimidation are compatible with the Charter’s right to freedom of expression, it notes that the criminalisation of insults may capture behaviour that is unlikely to hinder the exercise of powers under the Act or impinge on anyone’s rights or reputation. In 2004, a majority of the High Court held that the allegations of corruption can amount to insulting behaviour (subject to the constitution’s implied freedom of political communication.)
The Committee went on to observe that -
since the Charter was enacted, at least two Bills and one regulation have removed or refrained from introducing offences of insulting behaviour. Two further Bills that criminalised insulting such officers did so to preserve order in public proceedings and imposed a fineOn to the High Court?
of only 10 penalty units. By contrast, new section 3.8.11 applies to all public and private exchanges and carries a fine of 100 penalty units.
The Committee refers to Parliament for its consideration the question of whether or not new section 3.8.11, by creating an offence of insulting the Minister for Gaming or an authorised person when they exercise due diligence powers relating to legacy monitoring systems, is reasonably necessary to respect those people’s rights or reputation.
Adam Samaha in 'Regulation for the Sake of Appearance' (University of Chicago Law & Economics, Olin Working Paper No. 576) argues that -
Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. These normative questions include aesthetics, transparency concerns, and the likelihood of a self-fulfilling prophecy. A final section applies these ideas to prominent debates over campaign finance regulation and broken windows policing. Leading empirical studies are examined and, throughout, the Article draws from scholarship in philosophy, sociology, psychology, economics, and political science. ...
This Article suggests a distinction between the elusive concepts of appearance and reality, along with several ways in which the two can be related. Often we think that reality is insulated from any influence that can be linked to appearance, but sometimes an appearance becomes the basis for conduct that fosters a corresponding reality over time, and sometimes the concepts essentially collapse in the first place. Grasping these relationships is important for reaching sensible normative judgments about appearance-based justifications. The evaluative issues are comparatively simple when appearance and reality are essentially the same. As always, cost and efficacy of appearance management will be relevant, but still other questions arise when appearance and reality might diverge. If reality seems insulated from appearance, the key question involves transparency: whether, for example, attempts to build public confidence can be justified despite the risk of a gap between the apparent and actual conduct of officials. If instead reality might be a function of appearance over time, the transparency issue becomes subordinate to a causal question: whether, for example, the appearance of good behavior will help produce a beneficial self-fulfilling prophecy.
