14 September 2012


In Magee v Delaney [2012] VSC 407 the Supreme Court of Victoria has found that the freedom of expression in the Victorian Charter did not cover all graffiti.

The judgment concerned the appeal under under s 272(1) of the Criminal Procedure Act 2009 (Vic) against the decision in Delaney v Magee (Unreported, Magistrates’ Court of Victoria, Magistrate Mealy, 14 February 2011).

Kyrou J rejected the argument by a man who painted over an advertisement in a Melbourne bus shelter that the painting (regarded as damage to property) was protected by a claimed right to freedom of expression under s 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The Court found that the right to freedom of expression could not protect all forms of expression, nor did it constitute a lawful excuse where the public had a right to be protected against damage to property.

Magee apparently did not advance an argument based on the implied freedom of political communication. Kyrou J commented on "the fact that the basic premises upon which the appeal was brought were fundamentally flawed", stating that -
Put simply, it would have been readily apparent, had careful consideration been given to the wording of the Victorian Charter, that the appeal should not have been brought because it had no realistic prospects of success. 
A recurring theme in the submissions made on behalf of Mr Magee at the hearing of the appeal was that his conduct did not involve either serious or permanent damage to property or any interference with public order. It was said that the magistrate should have concluded that the right to freedom of expression under s 15(2) of the Victorian Charter was engaged, that s 15(3) did not apply, and that, accordingly, Mr Magee had a ‘lawful excuse’ for the purposes of s 197(1) and 199(a)(i) of the Crimes Act 1958. However, the Court held that, whether ss 197(1) and 199(a)(i) constitute restrictions on the right to freedom of expression that were reasonably necessary to respect the rights of others or for the protection of public order, depended on the nature and scope of those provisions rather than on their impact on Mr Magee. 
In so far as the appeal was brought to test the provisions of the Victorian Charter, the facts of the present case meant that it was a poor choice for that purpose. The submissions that were made in support of the proposition that those facts engaged the right to freedom of expression, so as to provide a lawful excuse for the purposes of s 197(1) and 199(a)(i) of the Crimes Act, were devoid of merit and lacked proper perspective.