16 December 2011


In Monis v R; Droudis v R [2011] NSWCCA 231 the Supreme Court of New South Wales, Court of Criminal Appeal has 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 Court held that although the law effectively burdens the freedom, it does so in a way which is consistent with the maintenance of the system of government prescribed by the national Constitution. The law would only be breached if a person mindful of the robust nature of political debate, and considerate of the accepted boundaries of that debate, would conclude that the use of the postal service was offensive.

Man Haron Monis (aka Sheik Haron) had appealed against conviction regarding multiple indictments of using a postal or similar service to menace, harass or cause offence. He was charged with 12 counts of using a postal service, (ie Australia Post)in a way that a reasonable person would regard as being, in all the circumstances, offensive contrary to s 471.12 of the Criminal Code 1995 (Cth). He was also charged with one count of using a postal service, Australia Post, in a way that reasonable persons would regard as being, in all the circumstances, harassing contrary to s 471.12 of the Code .

In April Monis he unsuccessfully sought to have the case dismissed in the NSW District Court. The charges in R v Monis; R v Droudis [2011] NSWDC 39 reflect the allegation that he had sent offensive letters to the wives and families of Australian soldiers who died in Afghanistan and to the family of a trade official who died in last year's Jakarta bombing. Copies were also allegedly sent to the Defence minister, Prime Minister and Opposition Leader. Monis unsuccessfully argued the charges were invalid because they infringed on the implied constitutional freedom of political communication.

Tupman DCJ in rejecting that argument identified factors considered in determining whether the Act is appropriate and adapted to achieve its legitimate end. Those factors include -
That the impact on political and governmental communications of S471.12 is only indirect and incidental. The intention of the provision, particularly viewed in the light of its legislative history, is broadly to prevent public postal services being used to disseminate more generally offensive material, not to regulate or limit dissemination of political and governmental communication through the post.

That it is a provision giving rise to a criminal sanction.

That this provision may have a chilling effect on political communication because its limits are uncertain and might amount to massive overreach to achieve its legitimate ends, leading to the risk of selective prosecution.

That in terms there are no defences for an offence committed under the section, but this I accept is subject to the important qualifying words in the section ' ... that reasonable persons would regard as being, in all the circumstances ...' .

That this is a provision enacted post Lange so that it can be inferred that the legislature did not intend the section to catch postal communications which are genuinely political or governmental communications in their true context, but rather that it apply to communication that is offensive in a way that goes beyond its relevance to political debate or beyond its political purpose.

That any impact on the implied freedom is limited by the fact that, if at all, it applies only to postal services, and that representative government and political discourse which underpins democratic and representative government is not broadly affected by the provision.

Significantly in my view are the words appearing in the Section, ' ... that reasonable persons would regard as being, in all the circumstances ...' as a qualifier of the term 'offensive' . This is not just relevant to a construction of the term 'offensive' but is important because it means that the law is not unqualified or unlimited in its operation, which was a matter Justice McHugh considered important in determining the validity of the disputed provision in Coleman v Power. These qualifying words would in my view allow the tribunal of fact to determine the context in which the postal service was used by an accused person, including the intended identity of the recipient of a postal communication, any circumstances surrounding that person and his or her receipt of such an article, the circumstances of the accused including it seems to me his state of mind and the extent to which that might be genuinely reflected in the content of the communication, contemporary debate about current political issues, contemporary values about political debate in a robust democracy and similar maters concerning the circumstances in which such a communication is made."
The Court of Criminal Appeal earlier this month unanimously endorsed the rejection of the request to dismiss the charges, commenting that "Whilst at one level the letters are critical of the involvement of the Australian military in Afghanistan, they also refer to the deceased soldiers in a denigrating and derogatory fashion". It indicated that people had a right to expect that communications that arrived at their home or office would not "undermine or threaten a legitimate sense of safety or security of domain".

The Attorney General, intervening in support of the respondent, supported the construction of the word "offensive" found by the primary judge. He pointed out that it would not be expected that a section creating a criminal offence with a maximum penalty of two years would be created for behaviour that was trivial or minor such as merely hurting or wounding feelings. He submitted that because the word was associated with menacing and harassing, it connoted behaviour likely to arouse significant emotional reactions of a similar nature.
The Attorney General also pointed to the fact that the use of the postal service related to the method of use as well as the content of the communication. He submitted that this demonstrated that one of the purposes of the legislation was to protect the integrity of the post.

The Solicitor General who appeared on behalf of the Attorney General did not seek to support the submission made by the respondent that the first of the two questions posed by Lange should be answered in the negative, but submitted that the legislation was reasonably appropriate and adapted to secure a legitimate end compatible with the maintenance of a system of representative and responsible government. He pointed to the fact that the question was not whether the choice made by parliament in enacting the legislation was preferable or desirable but rather whether it was reasonable. He also drew the distinction between laws that have as their purpose the restriction of communication on governmental or political matters and those that merely affect such communications incidentally. He submitted that the law in question in the present case fell into the latter category and, as the limiting effect was incidental and unrelated to the political nature of the communication, an affirmative answer to the second question posed by Lange was unlikely.

The Solicitor General submitted that in those circumstances the primary judge was correct in her conclusion, particularly having regard to the fact that for there to be a contravention, the communication must be offensive to a reasonable person in all the circumstances.
The appeal by Monis's co-accused, Amirah Droudis, charged with eight counts of aiding and abetting the sending of the letters, was also dismissed.

The Ausralian jurisprudence differs from that in the US, where speech that is offensive but does not involve threats has received greater protection. A salient example is expression by adherents of the Westboro Baptist Church, infamous for homophobic protests at the funerals of US military casualties. That hatespeech is discussed in works such as 'Not Your Mother's Remedy: A Civil Action Response to the Westboro Baptist Church's Military Funeral Demonstrations' by Chelsea Brown in 112 West Virginia Law Review (2009), 'The First Amendment Right Against Compelled Listening' by Caroline Corbin in 89 Boston University Law Review (2009) 939, 'The Respect for America's Fallen Heroes Act: Conflicting Interests Raise Hell with the First Amendment,' by Rebecca Bland in 75 University of Missouri-Kansas City Law Review (2006-2007) 523 and 'The Constitutionality of Let Them Rest in Peace Bills: Can Governments Say Not Today, Fred to Demonstrations at Funeral Ceremonies' by Katherine Ritts in 58(1) Syracuse Law Review (2007-2008) 137.