By Professor Adrienne Stone
In Monis v The Queen  HCA 4, it was alleged that Monis (aided and abetted by Droudis) wrote letters to relatives of Australian soldiers killed in active service in Afghanistan and to the relative of an AusAid official killed by a bomb in Indonesia. The letters expressed opposition to the war in Afghanistan in ‘intemperate and extravagant terms’ and directly insulted those who had died, including describing them as murderers and comparing them to Hitler. These allegations bear an uncanny resemblance to those of Snyder v Phelps, a controversial recent decision of the United States Supreme Court. The Supreme Court found that the Westboro Baptist Church had a right under the First Amendment to the Constitution of the United States to picket the funerals of American soldiers in order to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in the American military.
Despite these similarities, the law at issue in the Australian case was quite different. While the Westboro Baptist Church faced a civil action brought by the soldiers’ families, Monis and Droudis have been charged by the Commonwealth Director of Public Prosecutions under s 471.12 of the Criminal Code 1995 (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.’ Monis and Droudis argued that s 471.12 infringed the Australian Constitution’s implied freedom of political communication, so they could not be charged with that crime. In an unusual result, a six member Court divided equally as to the validity of the law. Under s 23 of the Judiciary Act 1902 (Cth), the appeal was therefore dismissed and the trial of Monis and Droudis can now proceed.
What Postal Communications are Criminal?
On the construction of the statute, the Court was unanimous that the ‘offensive’ aspect of s 471.12 covers only the most serious forms of offense: those that are ‘calculated or likely to arouse significant anger, significant outrage, disgust or hatred in the mind of a reasonable person in all the circumstances’ (Chief Justice French and Justice Hayne) or that constitute ‘“very”, “seriously” or “significantly” offensive’ uses of the post (Justices Crennan, Kiefel and Bell). (Justice Heydon was in ‘broad’ agreement with Chief Justice French.)
The Constitution’s Freedom of Political Communication
In addition there was unanimous agreement as to the test to be applied to determine whether a law is consistent with the freedom of political communication. All judges adopted the formulation previously stated in Lange v Australian Broadcasting Corporation and adapted in Coleman v Power:
First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?
Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
Refining the Constitutional Test
Despite this agreement, at the level of fine detail there were some important doctrinal refinements and differences of emphasis among the judges.
The First Step of the Lange Test
In earlier decisions there had been some suggestion that the Court might give considerable weight to the concept of an ‘effective’ burden, which distinguishes between burdens on freedom of political communication that infringe the Lange test and burdens that don’t. In Hogan v Hinch, two distinctions were drawn:
(a) a distinction (which turns on the size or degree of burden) between ‘substantial’ and ‘insubstantial’ burdens of freedom of political communication; and
(b) a distinction (which turns on the manner in which the burden is imposed) between laws that ‘directly’ or ‘inherently’ restrict political communication and those that do so indirectly or incidentally.
These statements appear to have been relied upon by the Commonwealth Director of Public Prosecutions in Monis to argue that the criminal offence in question is valid because to the extent it burdens freedom of political communication it does so ‘indirectly’ or in a manner that is ‘insubstantial’ or ‘slight’.
The Chief Justice and Justice Hayne are quite clear that such distinctions are of no relevance to the first stage of the Lange test. Justice Hayne addresses the distinction in its first form and is clear that size or degree of burden is not significant at the first stage of the test. In his Honour’s words, even a ‘little’ burden on political communication qualifies as an ‘effective burden’ for the purposes of the first limb of the Lange test. The Chief Justice directs his attention to the second distinction holding that the question of whether a law imposes an ‘indirect’ or a ‘direct’ effect on political communication is relevant only at the second stage of the test. On this last point Justices Crennan, Kiefel and Bell agree for the purposes of this case but they leave open the possibility that a law the effect of which is ‘so slight as to be inconsequential’ may survive the first stage of the Lange test and thus be valid.
The Second Step of the Lange Test
Turning to the second stage of the Lange test, we see once again some doctrinal refinement and difference of emphasis.
To put this test in some context, the second stage of the Lange test is the conceptual equivalent of the test imposed in overseas human rights law that limit the extent of a freedom or right to speech, some of which are specific to a guarantee of freedom of expression (such as art 10(2) of the European Convention on Human Rights) and some of which are general limits on all human rights (like s 1 of the Canadian Charter of Rights and Freedoms). Most courts applying these ‘limitation clauses’ use a proportionality style test which assesses the nature of the end to which the challenged law is directed, the means used to achieve that end and which balances the costs to freedom of expression against the end pursued. (For a long analysis of the comparative constitutional law of freedom of expression see here.) I have argued (here) that the process involved in applying the second stage of the Lange test, despite its different formulation, involves equivalent kinds of considerations. Both tests involve assessing the legitimacy of the end pursued, the proportionality of the means used and involve a balancing of the cost of protecting the right against the interest pursued by the relevant law.
In Monis, Chief Justice French and Justice Hayne applied the Lange test in a conventional way but the convergence between ‘proportionality’ and ‘reasonably appropriate and adapted’ is made explicit by Justices Crennan, Kiefel and Bell. In their view, while the proportionality test implemented under Lange may not be identical to proportionality tests used elsewhere, it is analogous and involves at least three separate inquiries: whether (1) the law pursues a valid legislative object; (2) whether the means employed are ‘reasonably appropriate and adapted’ to that end; and (3) whether both the means and the ends are ‘compatible with the constitutional imperative of the maintenance of the system of representative and responsible government.’
Given their conceptual equivalence, the explicit alignment of the two tests may not be of immediate practical assistance. However, the adoption of the language of proportionality, a feature of Canadian, South African and European law (together with some deliberate distancing from the law of the United States’ First Amendment) might be taken to indicate an orientation with respect to foreign law that will be significant in later cases.
The Disagreement: Is Preventing Offense a Legitimate End?
The most striking point of disagreement, however, and the one most pertinent to the outcome of the case, lies in the application of this part of the test to s 471.12.
The three judges who found the law invalid (Chief Justice French and Justices Hayne and Heydon) did so on the basis (1) that the law was aimed at preventing offense and (2) that preventing offense is not a ‘legitimate aim’ compatible with the constitutionally prescribed system of representative and responsible government.
Justice Hayne makes the point most clearly:
Anger, resentment, outrage, disgust and hatred, however intense, are transient emotional responses which may, and more often than not will, leave no mark upon the individual who experiences them. More than that, the emotional responses described are universal human responses which are among the ‘ordinary and inevitable incidents of life’.
History, not only recent history, teaches that abuse and invective are an inevitable part of political discourse. Abuse and invective are designed to drive a point home by inflicting the pain of humiliation and insult. And the greater the humiliation, the greater the insult, the more effective the attack may be.
For Justice Hayne, then, the case was clear cut: the end pursued by the law was not legitimate and thus there was no need to proceed to the fine balancing of interests that characterise other elements of the proportionality test. The Chief Justice’s approach was similar:
The prevention of uses of postal or similar services which reasonable persons would regard as being, in all circumstances, offensive … should not be regarded as a legitimate end.
‘[U]nreasonable, strident, hurtful and highly offensive communications’, the Chief Justice reminded us, are part and parcel of Australian political debate. In addition his Honour also focussed on the breadth of the provision noting the difficulty of defining the range of circumstances in which s 471.12 might prohibit communications on government or political matters.
In doing so, the Chief Justice and Justice Hayne are sounding notes heard before in the High Court in its decision in Coleman where the Court divided 4:3 on the validity of a conviction under a state statute directed at ‘insulting’ language. The notable feature of the majority judgments in that case was the finding (discussed here) that the pursuit of ‘civility’ in public discourse was an illegitimate end under the freedom of political communication. The Chief Justice and Justice Hayne thus appear to treat the avoidance of offense as the substantive equivalent of the pursuit of civility.
However, Justices Crennan, Kiefel and Bell found the law challenged in this case to be valid, though they did not question the authority of Coleman. Rather their Honours, with careful attention to particular features of the law at issue in this case, distinguish it from the law in Coleman. The distinctions are at least twofold.
First, this law is aimed at preventing only a very serious form of offense that causes ‘significant emotional reaction or psychological response’, a limitation not evident in the Coleman law. Second, the law in Coleman concerned statements made in a public place whereas this law operates to prevent the intrusion of very offensive material in to the home and the workplace. Taken together these features lead the judges to the conclusion that s 471.12 pursued a legitimate object and did not go beyond what was reasonably necessary to achieve the provision’s object.
In these circumstances their finding is that it is legitimate for a law to address ‘offensiveness’ and this particular law does so in a relatively restrained way. The joint reasons of Justices Crennan, Kiefel and Bell are notably restrained in tone. However some light of this reasoning is thrown by the reasons of Justice Heydon, whose agreement with the Chief Justice and Justice Hayne as to outcome is notably reluctant, vividly addresses the kind of hurt caused by the expression targeted in this case. The recipients of the letters will experience them as ‘sadistic, wantonly cruel and deeply wounding blows [received] during the most painful days of their lives’.
Conclusion: Two Views about Political Communication
In the High Court, then, there are two views about reasonable limits on freedom of political communication.
One view places great store on the value of offensive expression as a necessary evil in a truly free political debate, is cautious about the possibility that an unnecessarily broad law might stifle that discussion and is relatively relaxed about the harm caused by seriously offensive expression, which it regards as likely to be transient and to leave no long term mark on their recipients.
The other view takes more seriously the harm caused by expression but at the same time appears to be less concerned at the possible over-regulation of political communication, perhaps confident that, where the laws do over-reach, the courts will have the opportunity to restrain them.
Both these views are defensible. Indeed, both views are well represented in other constitutional systems of freedom of expression. The distinctive feature of the Australian context is that the competition between these two ideas is finely balanced. To return to the United States, the law is quite settled. Snyder was decided by a clear majority (with the sole dissent of Justice Alito) and is regarded as confirming a well-established tolerance for highly offensive forms of speech. The decision was notable principally because the Supreme Court held to these commitments in the face of an especially compelling set of facts. In the High Court of Australia, by contrast, the support for each of these competing visions of freedom of expression is left balanced on a knife’s edge.
AGLC3 Citation: Adrienne Stone, ‘Free Speech Balanced on a Knife’s Edge: Monis v The Queen; Droudis v The Queen‘ on Opinions on High (26 April 2013) <http://blogs.unimelb.edu.au/opinionsonhigh/2013/04/26/stone-monis/>.
Professor Adrienne Stone is Director of the Centre for Comparative Constitutional Studies and Professor of Law at the Melbourne Law School.