Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: MONIS, Man Haron v R; DROUDIS, Amirah v R [2011] NSWCCA 231
• Hearing dates: 23 August 2011
• Decision date: 06 December 2011
• Before: Bathurst CJ at [1]; Allsop P at [70]; McClellan CJ at CL at [93]

Decision

Appeals dismissed.

• Catchwords: CONSTITUTIONAL LAW - constitutional challenge to validity of statute - whether s 471.12 Criminal Code infringes implied freedom of political communication - test in Lange v Australian Broadcasting Commission - whether section burdens freedom of communication about government or political matters - whether reasonably appropriate and adapted to serve legitimate end compatible with maintenance of system of government prescribed by the Constitution (Cth); CONSTITUTIONAL LAW - constitutional challenge to validity of statute - implied freedom of political communication - whether necessary to have regard to actual communication; CRIMINAL LAW - using a postal service to menace, harass or offend - constitutional validity of statutory offence - whether s 471.12 Criminal Code infringes implied freedom of political communication; STATUTORY INTERPRETATION - s 471.12 Criminal Code - meaning of "offensive"
• Legislation Cited: Acts Interpretation Act 1901 (Cth), s 15A; Criminal Appeal Act 1912; Criminal Code 1995 (Cth), s 470, s 471; Customs Act 1901 (Cth); Police Offences Act 1928 (Vic), s 25; Police Offences Ordinance 1930-1961 (ACT), s 17(d); Summary Offences Act 1988; Vagrants, Gaming and Other Offences Act 1931 (Qld), s 7(1)(d)
• Cases Cited: Anderson v Kynaston [1924] VLR 214; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322; Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2) [1992] HCA 45; (1992) 177 CLR 106; Ball v McIntyre (1966) 9 FLR 237; Cohen v California 403 US 15 (1971); Coleman v Power [2004] HCA 39; (2004) 220 CLR 1; Cunliffe v The Commonwealth of Australia [1994] HCA 44; (1994) 182 CLR 272; Evans v Stevens (1791) 4 TR 224; Ex parte Collier (1877) 1 Knox (NSW) 513; Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532; Hogan v Hinch [2011] HCA 44; (2011) 85 ALJR 398; Holland v The Queen [2005] WASCA 140; Inglis v Fish [1961] VR 607; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207; Levy v State of Victoria [1997] HCA 32; (1997) 189 CLR 579; Melser v Police [1967] NZLR 437; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181; Nationwide News Pty Ltd v Wills [1992] HCA 46; 177 CLR 1; New South Wales v The Commonwealth [2006] HCA 52; 229 CLR 1; Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476; R v Burgmann (Court of Criminal Appeal, 4 May 1973, unreported); R v Smith (1974) 2 NSWLR 586; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1; Rowan v United States Post Office Department 397 US 728 (1970); Sellers v Bishop (1905) 11 ALR (CN) 61; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; Windred v Manion (1918) 14 Tas LR 36; Worcester v Smith [1951] VLR 316
• Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th Ed, 2011); F C Hutley 'Insulting Words' (1941) 14 ALJ 384
• Category: Principal judgment
• Parties: Man Haron Monis (First Appellant); Amirah Droudis (Second Appellant); Regina (Respondent); Attorney General (NSW) (Intervening)
• Representation: Counsel; G O'L Reynolds / G R Rubagotti (First Appellant); D M J Bennett QC / S E Grant (Second Appellant); J Agius SC / M McHugh (Respondent); M G Secton SC SG / J G Renwick (on behalf of the Attorney General); Solicitors; Sydney Defense Lawyers (First Appellant); Ford Criminal Lawyers (Second Appellant); Commonwealth Director of Public Prosecutions (Respondent); Solicitor General (Attorney General)
• File Number(s): 2009/00236443; 2010/260817

Decision under appeal

• Citation: R v Monis; R v Droudis [2011] NSWDC 39
• Date of Decision: 2011-04-18 00:00:00
• Before: Tupman DCJ
• File Number(s): 2009/00236443; 2010/260817

Judgment

BATHURST CJ:

Introduction and background

1 By an indictment presented on 12 April 2011, the appellant Man Haron Monis was charged with 12 counts of using a postal service, namely 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). Mr Monis 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 Criminal Code .

2 The appellant Amirah Droudis was indicted on eight counts of aiding and abetting the commission of offences by Mr Monis in using Australia Post in a way that a reasonable person in all the circumstances would regard as offensive contrary to s 471.12 of the Criminal Code.

3 Section 471.12 of the Criminal Code provides as follows:

"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."

4 The charges relate to letters allegedly sent by Mr Monis to the wives and relatives of Australian military personnel killed while serving in Afghanistan. Copies of the letters were sent on occasions to various politicians including the Prime Minister, the Leader of the Opposition and the Minister for Defence. It is not necessary to go into the terms of the letters in any detail. However, 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.

5 Each of the appellants moved the District Court to quash the indictments; Mr Monis on the ground that s 471.12 is invalid (wholly or in part) as it infringes the implied constitutional freedom of political communication and Mr Droudis on the ground that s 471.12 is contrary to the implied freedom of political communication.

6 In a judgment delivered on 18 April 2011, Tupman DCJ dismissed each motion. On 21 April 2011, Tupman DCJ granted the appellants certificates pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912 certifying that her Honour's judgment on the motions was a proper one for determination on appeal.

7 During the course of the hearing of the appeal senior counsel for Mr Monis informed the Court that the challenge to the harassment charge was abandoned.

Primary judge ' s reasons

8 Her Honour took the view that it was not necessary to analyse each of the letters in question in detail. However, she stated that she was required to determine whether the correspondence assessed broadly was capable of constituting political or governmental communication. She accepted that it was so capable (at [14]).

9 Her Honour then correctly recognised that the first step she was required to take in dealing with the notice of motion was to construe the legislation, in particular the word "offensive". Her Honour's conclusion was as follows:

"[24] ... In context it means something that would be likely to wound (as opposed to merely hurt) the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person in all of the circumstances. On this construction, it would not be sufficient for an offence to be committed under this section if all the postal article did was to vex, annoy or displease the recipient or to lead only to hurt feelings on the part of the recipient. It must be more than that. To the extent that the accused argue that a proper construction of the term ' offensive ' in S471.12 could mean merely creating hurt feelings on the part of the recipient of the postal article, I reject those submissions. I accept CDPP's submission that the term ' offensive ' in this section must be construed as meaning 'seriously or grossly offensive' but I reject the CDPP's submission that it could be construed to include a meaning, 'repugnant in a moral sense'. It seems to be that there is nothing in the authorities to support this construction, nor does such a construction arise otherwise."

10 Her Honour then considered whether, by reference to the two questions stated by the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 (" Lange ") and as modified in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 (" Coleman v Power "), s 471.12 so construed was contrary to the implied freedom of political communication. In answer to the first question her Honour concluded that the law effectively burdened freedom of communication about governmental or political matters. However, she answered the second question posed in Lange in the affirmative, finding that the law was reasonably appropriate and adapted to serve a legislative end and in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

11 In reaching this conclusion, her Honour held that the section had two purposes. First, "to protect the integrity of the post both physically and as a means of communication in which the public can have confidence" (at [45]). Second, to prevent breaches of the peace and protect the recipient from harm. Her Honour's conclusion was to the following effect:

"[46] I also accept that the provision has a further legitimate end, consistent with the Commonwealth's powers to legislate for peace, order and good government in relation to postal services which concentrates on the impact a postal article may have on its recipient. I accept that this further legitimate end is twofold, namely to prevent breaches of the peace which might flow from receipt of an offensive postal article and also to protect the recipient of such an article from harm. I accept the argument on behalf of the accused, that the risk of breaches of the peace is less immediate when dealing with the receipt of a letter as opposed to being present and hearing insulting words, as was the factual position under consideration in Coleman -v- Power, but it is not remote on my finding. Further, seriously offensive letters can cause anger and resentment and harm in the recipient and an attempt to prevent the postal services from being used in that way I accept is part of the purpose of the section and a legitimate purpose."

12 After taking into account a number of matters raised by the parties, her Honour concluded that the section was reasonably appropriate and adapted to serve a legitimate legislative end and in a manner which was compatible with the maintenance of the system of government prescribed by the Constitution. She summarised the matters she took into account in reaching her conclusion at [51] of her judgment:

"[51] The matters I take into account, raised by both accused and also the CDPP, in determining whether this law is appropriate and adapted to achieve its legitimate end 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."

Appellants ' submissions

13 The appellants contended that the meaning of "offensive" in the legislation was that suggested by Pape J in Inglis v Fish [1961] VR 607. The alleged offence in that case was offensive behaviour in a public place. Pape J stated that in the context of that offence the expression "offensive" meant "calculated to wound the feelings, arouse anger or resentment, or disgust, or outrage in the mind of a reasonable person". The appellants, Mr Monis in particular, submitted that her Honour erred in excluding from the ambit of the expression conduct which is merely hurtful, annoying or displeasing. They submitted this was inconsistent with what was said by this Court in R v Smith (1974) 2 NSWLR 586 at 587 and that the distinction drawn by her Honour between conduct hurtful to feelings and conduct likely to wound feelings was meaningless. They further submitted that there was no justification for limiting the expression "offensive" to "grossly offensive" conduct, pointing out that the expression "grossly offensive" appeared in the equivalent legislation in existence from 1901 to 30 June 1975, but the word "grossly" was removed from subsequent emanations of the legislation.

14 Each of the appellants supported her Honour's conclusion that the law effectively burdened communications about governmental or political matters. However, they contended that her Honour erred in holding that the law was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. They submitted that the law is not necessary to protect the integrity of the post as most postal articles would not affect its physical integrity and a conveyance of offensive material would not affect public confidence in the post. The appellants further submitted that the legislation was ill adapted to preventing breaches of the peace having regard to the enormous number of circumstances it could cover which would often not incite such breaches. They pointed to the uncertainty of its operation, submitting that given its width and vagueness it would have a chilling effect on freedom of speech generally and in particular on political and governmental communications.

Respondent ' s submissions

15 The respondent contended that the use of the word "offensive" in association with "menacing" and "harassing" demonstrated that the word in context meant something more than merely hurtful or annoying and that in the particular context in which it was used it meant seriously offensive or grossly offensive.

16 So far as the first of the questions raised in Lange was concerned, it contended that the law did not burden communications on governmental or political matters. It submitted that there were two issues to be considered in answering that question. The first involved an analysis of the communication in question. The respondents submitted that the letters were not communications about governmental or political matters at all but rather represented personal attacks on the deceased soldiers and that the fact that the letters may in part refer to a political matter does not mean those parts which are not directed to governmental and political issues do not fall within the section. The respondents submitted that this approach was consistent with the approach taken by the Western Australia Court of Appeal in Holland v The Queen [2005] WASCA 140 and by the High Court in APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322.

17 The respondent also submitted that to the extent there was any burden it was only incidental and light, so as not to effectively burden the implied freedom. In that regard, reliance was placed on the decision of Kerr J in Ball v McIntyre (1966) 9 FLR 237 that the offence of offensive behaviour in a public place was not directed at controlling actions which were no more than statements of political opinion, albeit which may have been expressed in a distasteful manner or with which the majority of the community would not agree.

18 The respondent also submitted that the second question posed by Lange should be answered in the affirmative. It said that s 471.12 had two legitimate purposes; first, protecting the integrity of the post as a means of communication in which the public could have confidence and second, avoiding breaches of the peace. It contended that words can be inflammatory, provoke violence or self-harm, and can inflict pain and adversely effect the health of the recipient.

19 The respondent further pointed out that the qualification in the section that the use of the postal service had to be regarded by reasonable persons in all the circumstances as offensive was of importance in considering this issue. It submitted that that determination would be made in the context that in this country, political debate is of a robust nature. It pointed out that this qualification was not contained in the legislation considered in Coleman v Power . It submitted that the legislation enhanced the system of representative and responsible government and it protected those who participated from uses of the post that are menacing, harassing or offensive.

Attorney General ' s submissions

20 The Attorney General intervened in support of the respondent. He supported the construction of the word "offensive" found by the primary judge, pointing 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.

21 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.

22 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.

23 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.

Analysis

24 The parties agreed that the question of whether the legislation infringed the implied constitutional freedom of communication about governmental or political matters was to be determined by reference to the questions posed by the High Court in Lange (at 567-568) as modified in Coleman v Power (at [93]-[96], citations omitted):

"[93] No doubt the Court would have made the meaning of the second limb in Lange clearer if it had used the phrase 'in a manner' instead of the phrase 'the fulfilment of' in that limb. The second limb would then have read 'is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?'. However, it is clear that the Court did intend the second limb to be read in a way that requires that both the end and the manner of its achievement be compatible with the system of representative and responsible government. This is clear from the example that the Court gave immediately after formulating the two-limb test. The Court said:

'In ACTV , for example, a majority of this Court held that a law seriously impeding discussion during the course of a federal election was invalid because there were other less drastic means by which the objectives of the law could be achieved . And the common law rules, as they have traditionally been understood, must be examined by reference to the same considerations. If it is necessary, they must be developed to ensure that the protection given to personal reputation does not unnecessarily or unreasonably impair the freedom of communication about government and political matters which the Constitution requires.' (emphasis added)

[94] The example of ACTV shows that in Lange the Court intended the adjectival phrase 'compatible with the maintenance of the constitutionally prescribed system' to govern the means by which the impugned law achieved its end. The Parliament had enacted the relevant legislation in ACTV 'to safeguard the integrity of the political system by reducing, if not eliminating, pressure on political parties and candidates to raise substantial sums of money in order to engage in political campaigning on television and radio, a pressure which renders them vulnerable to corruption and to undue influence by those who donate to political campaign funds'. Despite the object of the legislation - an object that enhanced representative government - Parliament adopted means that were not compatible with the implied freedom. The ACTV example demonstrates the point that it is the content of the law - the manner in which it seeks to achieve the end - as well as the end which must be compatible with the prescribed system.

[95] The true test was clearly expressed by Kirby J in his judgment in Levy v Victoria . After discussing a number of tests that have been used to determine whether a law is consistent with the freedom, his Honour said:

'A universally accepted criterion is elusive. In Australia, without the express conferral of rights which individuals may enforce, it is necessary to come back to the rather more restricted question. This is: does the law which is impugned have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides?' (emphasis added)

[96] In my view, this formulation accurately states the second limb of the Lange test. It emphasises that a law that burdens communications on political or governmental matters in the sense I have explained will be invalid unless it seeks to achieve an end in a manner that is consistent with the system of representative government enshrined in the Constitution."

See APLA Ltd v Legal Services Commissioner (NSW) supra at [26]-[29], [58], [213], [376], [446].

Construction of s 471.12

25 The first step in assessing the validity of any given law is one of statutory construction. Further, so far as different constructions appear to be available, a construction is to be selected which would avoid, rather than lead to, a conclusion of constitutional invalidity: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [11].

26 Although the section in the present case has not been the subject of judicial consideration, the meaning and extent of offensive behaviour has been considered in the context of a number of other statutes in circumstances involving political activity.

27 In Worcester v Smith [1951] VLR 316 O'Bryan J considered the meaning of "offensive behaviour" in s 25 of the Police Offences Act 1928 (Vic) which prohibited behaving in an offensive manner in a public place. The defendant in that case was one of a group of demonstrators demonstrating against the Korean War outside the United States Consulate in Melbourne. He was carrying a banner "Stop Yank Intervention in Korea" and in a discussion with a bystander, in response to a comment "You Communists are only looking for trouble", he replied, "The bloody Yanks are causing the trouble". The Court held there was no evidence to support a charge of offensive behaviour. In the course of his judgment O'Bryan J made the following comments (at 317):

"In my opinion, the whole of this evidence did not support the charge of offensive behaviour. This section is not directed to the peaceful and inoffensive statement either verbally or in writing of political views. There is nothing, in my opinion, in the wording of any of the banners which could reasonably be taken to be offensive. They are strong expressions of opposition to a political policy with which the great majority in this community would probably agree. The mere disagreement with that policy, whilst it may be in one sense offensive to some people, is not, in my opinion, offensive in the sense in which this word is used in sec. 25."

and (at 318):

"The behaviour of the defendant in this case, in my opinion, fell far short of being offensive as that word is used in sec. 25. Behaviour, to be 'offensive' within the meaning of that section, must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person. The mere expression of political views, even when made in the proximity of the offices of those whose opinions or views are being attacked, does not, in my opinion, amount to offensive behaviour within the meaning of this police offence."

28 In Ball v McIntyre supra, a student was charged with behaving in an offensive manner in a public place contrary to s 17(d) of the Police Offences Ordinance 1930-1961 (ACT). The act complained of was that on the occasion of a political demonstration against the Vietnam War, the student hung a placard upon and squatted on the pedestal of a statue erected as a public memorial to King George V outside Parliament House, Canberra. In allowing an appeal from a conviction by a magistrate, Kerr J made the following remarks:

"The question therefore is, was this political behaviour, because of its nature and circumstances, also offensive behaviour? It is clear that some kinds of political behaviour can be offensive behaviour in the eyes of the law, but one must be careful in the case of political behaviour not to condemn as offensive, conduct of which one disapproves on political grounds." (at 240)

and

"People may be offended by such conduct, but it may well not be offensive conduct within the meaning of the section. Some types of political conduct may offend against accepted views or opinions and may be hurtful to those who hold those accepted views or opinions. But such political conduct, even though not thought to be proper conduct by accepted standards, may not be offensive conduct within the section. Conduct showing a refusal to accept commonly held attitudes of respect to institutions or objects held in high esteem by most may not product offensive behaviour, although in some cases, of course, it may." (at 241)

29 Kerr J also pointed out (at 242) that the word "offensive" in s 17(d) is to be found with the words "threatening, abusive and insulting", all words which he said carried with them the idea of behaviour likely to arouse significant emotional reaction.

30 The matter was considered by this Court in R v Burgmann (Court of Criminal Appeal, 4 May 1973, unreported). Ms Burgmann was convicted by a magistrate of behaving in an offensive manner in a public place during the course of an anti-apartheid demonstration at the Sydney Cricket Ground where a match between the South African Rugby Union team and a Sydney team was in progress. Ms Burgmann climbed the picket fence and sat down near the field of play. The game was stopped and Ms Burgmann and four others were arrested.

31 The Court of Criminal Appeal unanimously quashed the conviction. Jacobs P pointed out that it was notoriously difficult to define what behaviour is capable of being regarded as a criminal offence. He also stated that the section was not intended to make it a criminal offence to behave in a manner which might in particular circumstances offend another or others, and that if behaviour was innocent on one motivation and capable of offending some persons on another motivation it was not offensive behaviour.

32 Reynolds JA emphasised the need for some external standard. During the course of his judgment he made the following remarks:

"It is upon this material that the question of law which I have previously mentioned is submitted to this Court. One difficulty is that the word 'offensive' is in the nature of a relative description of conduct. This aspect has been discussed in an article in 14 ALJ 384 by F C Hutley under the title 'Insulting Words'. It cannot be that it is enough if, in a subjective sense, some people or even many people would be offended by the conduct or behaviour complained of. There must surely be some external standard for otherwise strong political or religious opinions or criticisms would generally be regarded as offensive. That there must be an external standard has been recognised by the authorities in modern times."

33 In the article referred to by Reynolds JA, Mr Hutley, as his Honour then was, dealt with the importance of offensive behaviour and similar forms of criminal conduct being evaluated by that which a reasonable person would regard as offensive. He pointed out (at 385) that the reasonable man provides a flexible measuring stick; one which can take account of social and technical progress and at the same time one which can be applied with due regard to human frailty. He described the reasonable person in the following terms:

"It is submitted that the type whose reaction to words or conduct should give them their 'objectively' insulting or offensive character should be the 'sane' or 'balanced' citizen, one lacking the vanity of the Coroner in Ex parte Collier (Knox) (NSW) 513, or the touchiness in money matters of the prosecutor in Sellers v Bishop 11 ALR (Cn) 61, or the exaggerated sense of personal rectitude of the prosecutor in Windred v Manion 14 Tas LR 36."

34 One might add to that characterisation of persons, a person not overly sensitive to robust political debate. In that context Mr Hutley (at 387) emphasised that the law had to consider political and religious freedoms.

35 I have been through these earlier cases in some detail because they demonstrate two things. First, the Courts have consistently emphasised the need to consider words such as offensive or insulting in conjunction with associated words. Second, although those cases all occurred before the High Court recognised the implied freedom of political communication, the courts were astute to interpret the sections so that they did not unduly fetter political debate.

36 I have set out the terms of s 471.12 above. It should be noted that it extends not only to the traditional postal service. Section 470.1 of the Criminal Code defines postal or similar service as follows:

" postal or similar service means:

(a) a postal service (within the meaning of paragraph 51(v) of the Constitution); or

(b) a courier service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(c) a packet or parcel carrying service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(d) any other service that is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(e) a courier service that is provided by a constitutional corporation; or

(f) a packet or parcel carrying service that is provided by a constitutional corporation; or

(g) a courier service that is provided in the course of, or in relation to, trade or commerce:

(i) between Australia and a place outside Australia; or

(ii) among the States; or

(iii) between a State and a Territory or between 2 Territories; or

(h) a packet or parcel carrying service that is provided in the course of, or in relation to, trade or commerce:

(i) between Australia and a place outside Australia; or

(ii) among the States; or

(iii) between a State and a Territory or between 2 Territories."

37 The section forms one of a number of provisions clearly directed to protecting people being harmed by misuse of the postal service. Thus s 471.10 prohibits postal or similar services being used to induce a false belief that an explosive or dangerous article has been left in any place, whilst s 471.13 prohibits a dangerous or explosive substance being carried by means of a postal service in a way which gives rise to the danger of death or serious harm to another person. The maximum penalty for each such offence is 10 years imprisonment.

38 Section 471.11(1) makes it an offence to use a postal service to threaten to kill another person whilst s 471.11(2) provides it is an offence to use a postal service to threaten to cause serious harm to a person. The maximum penalty for each of these offences is 10 years and 7 years imprisonment respectively.

39 Although the penalty for a contravention of s 471.12 is substantially less, it still creates a criminal offence with a significant penalty.

40 There are four significant differences between the legislation the subject of the cases to which I have referred, and the legislation in the present case. First, the penalty of two years is significantly greater. By contrast, the maximum penalty for offensive behaviour in a public place contrary to s 4 of the Summary Offences Act 1988 is three months imprisonment. This would tend to suggest that the conduct is directed to offences carrying a greater degree of criminality than those created by legislation such as s 4 of the Summary Offences Act.

41 Second, unlike offensive behaviour in a public place, the section extends to private communications. If the legislation extended to conduct which in the eyes of a reasonable person would tend to wound a recipient, a great deal of private correspondence would be caught by the section. At a prosaic level it would extend to all letters bitterly written in the aftermath of a relationship breakdown. It would be unlikely that the legislature intended this kind of conduct would be visited with a potential sanction of two years imprisonment: cf Coleman v Power at [12], [183].

42 Third, as I have pointed out the word "offensive" is used in conjunction with the words "menacing" and "harassing". This tends to suggest, in my opinion, that the word is directed to conduct more serious than using the postal service to hurt or wound the feelings of a recipient.

43 Fourth, the section makes it clear that the use of the service has to be offensive in the eyes of a reasonable person in all the circumstances. Although this is not relevant to the meaning of the word "offensive", it is relevant in my view in considering the answer to the second question posed by Lange .

44 In these circumstances, in my opinion, for the use of a postal service to be offensive within the meaning of s 471.12 it is necessary that the use be calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances. However, it is not sufficient if the use would only hurt or wound the feelings of the recipient, in the mind of a reasonable person.

45 Such a construction, in my opinion, reflects the use of the word "offensive" in conjunction with "menacing" or "harassing", takes into account that it extends to private communications and reflects the level of criminality envisaged by the prescribed maximum penalty. For the reasons which follow, such a construction also, in my opinion, strikes an appropriate balance between the implied freedom of political communication and the rights of persons to be protected from the misuse of the postal service.

The validity of the provision

46 Prior to dealing with the two questions raised by Lange, it is convenient to deal with the submission made by the respondent to the effect that, in answering these questions, it is necessary to have regard to the actual communications to see whether or not they concern political or governmental matters.

47 In my opinion, this approach is not correct. The relevant questions raised by Lange focus on the validity of the law in question, not whether the activities of persons amount to a political or governmental communication. This follows also from the fact that the implied freedom is a limitation on legislative power, not the grant of an individual right: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [65]; Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2) [1992] HCA 45; (1992) 177 CLR 106 at 150; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at [180]; Hogan v Hinch [2011] HCA 44; (2011) 85 ALJR 398 at [50]. The position was summarised by Hayne J in APLA Ltd v Legal Services Commissioner (NSW) supra in the following terms (at [381]):

"The implied freedom of political communication is a limitation on legislative power; it is not an individual right. It follows that, in deciding whether the freedom has been infringed, the central question is what the impugned law does, not how an individual might want to construct a particular communication or (in this case) advertisement."

48 In support of the submission that it was appropriate to have regard to the text of the communication in determining at least the answer to the first question in Lange, the respondent relied on the following passage of the judgment of Gleeson CJ and Heydon J in APLA Ltd v Legal Services Commission (NSW) supra (citations omitted):

"[28] The possibility that an advertisement of the kind prohibited by the regulations might mention some political or governmental issue, or might name some politician, does not mean that the regulations infringe the constitutional requirement. The regulations do not, in their terms, prohibit communications about government or political matters. They prohibit communication between lawyers and people who, by hypothesis, are not their clients, aimed at encouraging the recipients of the communications to engage the services of lawyers. Such communications are an essentially commercial activity. The regulations are not aimed at preventing discussion of, say, 'tort law reform', or some other such issue of public policy. They restrict the marketing of professional services."

49 In my opinion, this passage does not support the proposition contended for. Their Honours focused on the regulations in question which prohibited the advertisement of a particular form of legal services in drawing the conclusion that regulations of that nature did not effectively burden communication on governmental or political matters. Gummow J (at [218]) reached a similar conclusion pointing out that whilst it was possible to combine an advertisement to supply legal services with communication about governmental and political matters, it would only be the advertisement which was proscribed. However, if it be the case that offensive material can include communication on governmental and political matters, then such a distinction cannot be drawn in the present case.

50 The respondent also relied on the decision of the Court of Appeal of Western Australia in Holland v The Queen supra in support of its submission. That case involved an appeal against conviction for the importation of pornographic material contrary to certain provisions of the Customs Act 1901 (Cth) and the regulations thereunder. Although at one point in his judgment (at [49]) Malcolm CJ stated that to come within the area of "implied immunity" the communication must relate to a political or governmental matter, he ultimately determined the issue by reference to the validity of the section and regulations generally. His conclusions were expressed in the following paragraphs:

"[100] In my opinion, the direct purpose of the relevant statutory provisions and regulations in the present case is not to restrict or burden political communication as such in a way that would impermissibly burden or restrict the freedom of communication implied from the relevant sections of the Constitution . The direct purpose of the relevant statutory provisions and regulations is to prohibit the importation of pornographic publications of the kind referred to in reg 4A. These include, in particular, items of child pornography within the meaning of s 233BAB(3) of the Customs Act and publications to which reg 1A applies, namely, that describe and depict, in a way that is likely to cause offence to a reasonable adult, a person who is or looks like a child under 16."

and

[111] I also agree that neither s 233BAB or reg 4A(1)(b), whether expressly or otherwise, impose any impermissible burden or restriction on governmental or political discussion about such matters. They do not impose any relevant prohibition, restriction or restraint upon anyone advocating changes in the relevant law. In short, I agree with Roberts-Smith JA that material of this kind does not constitute any part of legitimate political communication, with the consequence that neither s 233BAB nor reg 4A(1)(b) is invalid because neither of them infringe the implied freedom of political debate under the Constitution."

51 Roberts-Smith JA adopted a similar approach (at [212], [213], [223]) as did McLure JA (at [303]).

52 It follows, and it is my view, that it is irrelevant to consider the actual communication in order to resolve the matter.

Does s 471.12 of the Criminal Code effectively burden freedom of communication about governmental or political matters?

53 The first question posed by Lange is whether the law in question effectively burdens freedom of communication about governmental or political matters either in terms of operation or effect.

54 In this regard it must be borne in mind that the scope of the communication on governmental and political matters is wide. In Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 124, Mason CJ, Toohey and Gaudron JJ stated that the implied freedom covers "all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about". In Hogan v Hinch supra at [49], French CJ stated that the range of matters that may be characterised as "governmental and political matters" for the purpose of the implied freedom is broad and "arguably include social and economic features of Australian society".

55 In Coleman v Power , it was conceded that the provisions of s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld), which prohibited the use of insulting words to any person in a public place, effectively burdened governmental or political communication within the first limb of Lange . That concession was accepted by a majority of the Court: at [27] per Gleeson CJ; [79]-[81] per McHugh J; [197] per Gummow and Hayne JJ; [230] per Kirby J. McHugh and Kirby JJ expressly stated the concession to be correct. Callinan J (at [298]) stated the concession was incorrect, whilst Heydon J (at [319]) stated that it would have been necessary to examine the correctness of the concession if the outcome of the appeal, in his opinion, turned on its correctness. His Honour held the law was valid in any event.

56 Notwithstanding the meaning I have attributed to the word "offensive" in s 471.12, in my opinion, the law does effectively burden freedom of communication about governmental and political matters. The restriction it imposes at least limits the nature of political and governmental communications through a wide variety of postal and similar services. It does not seem to me to be sufficiently insubstantial so as not to amount to an effective burden on the freedom of communication of such matters. It has been recognised that in this country political debate can take place in a fashion that is generally robust, frequently insulting and sometimes acrimonious: See Coleman v Power at [105], [237]-[239]. Section 471.12 of the Criminal Code even interpreted the way I suggest would limit the form if not the substance of such communications. It does not seem to me possible to say the burden would be insubstantial.

57 It follows that the first question posed by Lange should be answered in the affirmative.

Is the law reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the system of government prescribed by the Constitution?

58 As I indicated earlier the primary judge held that the section had two purposes. The first was to protect the integrity of the post both physically and as a means of communication in which the public could have confidence. I am unable to accept this conclusion. First, the integrity of a postal or similar service is expressly dealt with in s 471.13 and offensive material would not threaten the physical integrity of the post. Second, the suggested purpose of maintaining confidence in the integrity of the postal system is a somewhat ephemeral concept particularly having regard to the wide variety of services to which the section could apply. It does not seem to me that the legislative purpose in prohibiting the dissemination of offensive material was to protect such integrity - presumably of its efficiency and reliability.

59 Her Honour also held that the second purpose was to protect breaches of the peace which may flow from the receipt of offensive material and protect the recipients from harm. In my opinion, the purpose of s 471.12 can be shortly stated. It is to protect persons first, from being menaced by use of a postal service. Second, it is to protect persons being harassed by the use of such a service and third, to protect persons from being subjected to material that is offensive in the sense I have described, namely material which is calculated or likely to arouse significant anger, significant resentment, outrage, disgust or hatred in the mind of a reasonable person. It can be inferred that the legislature considered such protection necessary having regard to features unique to a postal service including first the fact that the post is generally sent to a person's home or business address and therefore personalised, and second that material sent by post is often unable to be avoided in the ordinary course of things, given it is the norm to open all of the mail addressed to an individual. A recipient of material sent by post essentially is a captive audience.

60 In considering whether or not the law is reasonably appropriate and adapted to serve that end in the manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government, there are a number of matters to be borne in mind. First, the freedom is not absolute. In Australian Capital Television Pty Ltd v The Commonwealth (No 2) supra, Deane and Toohey JJ emphasised (at 169) that it was not an absolute and uncontrolled licence but an implication of freedom under the law of an ordered and democratic society: See also Cunliffe v The Commonwealth of Australia [1994] HCA 44; (1994) 182 CLR 272 at 336-337. In Lange the Court summarised the position as follows (565-566, citations omitted):

"Similarly, the content of the freedom to discuss government and political matters must be ascertained according to what is for the common convenience and welfare of society. That requires an examination of changing circumstances and the need to strike a balance in those circumstances between absolute freedom of discussion of government and politics and the reasonable protection of the persons who may be involved, directly or incidentally, in the activities of government or politics."

61 Second, in determining whether a law is reasonably appropriate and adapted to a legitimate end the question for the court is not whether some choice other than that made by Parliament was preferable or desirable but whether the parliamentary choice was reasonable in light of the burden placed on the constitutional freedom of communication. The role of the court is to ask whether Parliament's enactment is a reasonable means of achieving its purpose, keeping in mind the importance of constitutional freedoms: Levy v State of Victoria [1997] HCA 32; (1997) 189 CLR 579 at 598, 608, 614-5, 618-620, 627-628 and 647-648; Mulholland v Australian Electoral Commission supra at [32]-[33], [234]-[239], [256]-[257], [360]; Coleman v Power at [31], [100], [292] and [328].

62 Third, in this context the distinction has been drawn between legislation the direct purpose of which is to restrict political communications and that which only incidentally restricts such communication. The distinction was drawn by Gaudron J in Levy v State of Victoria supra in the following terms (at 619, citation omitted):

"If the direct purpose of the law is to restrict political communication, it is valid only if necessary for the attainment of some overriding public purpose. If, on the other hand, it has some other purpose, connected with a subject matter within power and only incidentally restricts political communication, it is valid if it is reasonably appropriate and adapted to that other purpose."

63 In the case of legislation which only incidentally affects political communication, the court will not strike down a law which may incidentally burden freedom of political speech simply because it could be shown that some more limited restriction could achieve that purpose: Coleman v Power at [31].

64 In the present case, it seems to me that offensive communications of the nature which I have described, namely ones calculated or likely to arouse significant anger, significant resentment, outrage, disgust or hatred in the mind of a reasonable person in all the circumstances, would be communications which could provoke retaliation and thus be legitimate for Parliament to prohibit.

65 Further, accepting that communications through the post are less likely to provoke retaliation than spoken words, it seems to me it is a legitimate end to protect recipients of postal articles from such material and that such protection is compatible with the maintenance of the system of government prescribed by the Constitution. The only political or governmental communications which would be affected would be those calculated or likely to arouse significant anger, significant resentment, outrage, disgust or hatred in the mind of a reasonable person in all the circumstances. Such a reasonable person, in my opinion, would be aware of the robust nature of political debate referred to by McHugh and Kirby JJ in Coleman v Power , and would not be offended by it in the sense I have described. Political and governmental communications would only be proscribed when they cross that boundary and arouse significant anger, significant resentment, outrage, disgust or hatred in the mind of a reasonable person. It seems to me that in those circumstances the legislation is reasonably appropriate and adapted to serve the end of protecting use of the post in a manner compatible with the system of government prescribed by the Constitution.

66 What I have said is consistent, in my opinion, with the reasoning of Gleeson CJ, Gummow and Hayne JJ, and Kirby J in Coleman v Power . Each of their Honours held that the prohibition on the use of insulting words in a public place properly construed was compatible with the maintenance of the system of government prescribed by the Constitution. Gleeson CJ (at [14]) said that the language in question must be of such a nature that its use in the place where it is spoken is contrary to contemporary standards of good order and goes beyond what, by those standards, is simply an exercise of freedom to express opinions on political matters. The construction of the word "offensive" which I have suggested in the present case achieves a similar end.

67 Gummow and Hayne JJ and Kirby J construed the expression "insulting words in a public place" to mean words intended to provoke unlawful physical retaliation or likely to provoke unlawful physical retaliation: at [183] per Gummow and Hayne JJ; at [254] per Kirby J. Although the likelihood of physical retaliation is less in the case of a private communication through a postal service than in the case of words uttered in a public place, words which are calculated or would be likely to arouse significant anger, significant resentment, outrage, disgust or hatred in the mind of a reasonable person have the potential to provoke physical retaliation and at the very least cause an emotional reaction in the recipient from which the recipient is entitled to protection. Such a limitation does not impose a significant fetter on political communication that would ordinarily be expected to take place in an ordered democratic society, and to the extent that it does limit such communications it is not incompatible with the maintenance of the system of government prescribed by the Constitution.

68 It follows that the second question posed by Lange should be answered in the affirmative.

Conclusion

69 For these reasons, the appeals should be dismissed.

70 ALLSOP P: I have read the reasons of the Chief Justice. It is unnecessary for me to repeat any background material dealt with by him. I agree with the orders proposed by him and with much of his reasoning. I prefer to express my own reasons.

71 As made clear in Coleman v Power [2004] HCA 39; 220 CLR 1 at 21 [3] (Gleeson CJ), 64 [147] and 68 [158], (Gummow J and Hayne J), 84 [219] (Kirby J) and 115 [306] (Heydon J), the first step in any analysis as to whether a law of a Parliament infringes the implied Constitutional freedom of political communication is to construe the relevant provision. Once construed, the two-stage test in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 (as modified in Coleman ) is to be applied, as set out in the Chief Justice's reasons.

72 The process of statutory construction involves the ascription of meaning to the words used by Parliament using all relevant rules of statutory construction, both common law and statutory. A number of such principles are relevant here. First, s 471.12 is a criminal offence punishable by imprisonment for up to two years. It would be wrong to attribute to Parliament an intention to criminalise conduct to this extent unless it was of a serious character. This can be seen as an incident of the principle of legality that the community's entitlement of free expression is not to be abrogated or truncated otherwise than by clear expression and that the law has to take due account of the rights and freedoms of citizens and those within the country: Melser v Police [1967] NZLR 437 at 443-446; Coleman at 25 [11]-[12] (Gleeson CJ).

73 Secondly, the word offensive takes its meaning from its context. Here, the linking of the words "menacing, harassing or offensive" indicates that they should be understood as informing the meaning of each other by their collocation and textual context: Evans v Stevens (1791) 4 TR 224 at 227; 100 ER 986 at 987, cited by Spigelman CJ in Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 at [30]; D C Pearce and R S Geddes Statutory Interpretation in Australia (7 th Ed, 2011) at 135 [4.25]. Textual context in this sense is particularly important where a word (such as "offensive" here) has a broad scope of possible meaning or many shades of meaning: Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1 at 11 and 16-17 (Fisher J). Here, the nearby words in the same provision are "menacing" and "harassing". Both have an element of personal direction at the recipient of the post; both contain an element of calculated conduct, though objective in character; both have a serious quality of objectionability in civil society.

74 The context of the section is Div 471 entitled "Postal Offences". Surrounding provisions deal with serious subject matters: hoaxes involving explosives and dangerous substances: s 471.10; threats: s 471.11; dangerous articles: s 471.13; explosives or dangerous or harmful substances: s 471.15.

75 As a provision concerned with the postal or similar service, whether public or private (see s 470.1), the provision is directed to a service that brings communications into the homes or places of work or business of people, generally in envelopes or packages that will be opened by the person to whom the communication is addressed. Thus, the seriousness of the use of the postal service that brings into the personal domain of an addressee a communication that is menacing or harassing or offensive is derived, in part, from the invasion of that personal domain of the addressee.

76 Thirdly, the Acts Interpretation Act 1901 (Cth), s 15A, requires that the provision be read subject to the Constitution and so as not to exceed the legislative power of the Commonwealth; see also Gypsy Jokers Motorcycle Club Inc v The Commissioner of Police [2008] HCA 4; 234 CLR 532 at 553 [11] (Gummow J, Hayne J, Heydon J and Kiefel J) and New South Wales v The Commonwealth [2006] HCA 52; 229 CLR 1 at 161-162 [355] (Gleeson CJ, Gummow J, Hayne J, Heydon J and Crennan J). Relevantly, here, the provision should be read, if possible, in a way that will not offend the implied freedom of political communication. This consideration will affect the content of the notion of offensive in s 471.12, in the light of the purpose of the provision. It is to be noted, however, that the operation of the provision of itself caters, to a degree, for the Constitutional principle. The offending conduct must be such that reasonable persons would regard, in all the circumstances, the use as offensive. Such circumstances would be taken to include the recognition by reasonable persons of the existence and importance to Australian democracy and representative government of the freedom and thus of a possibly legitimate purpose for the use of the post, even if the use, through the communication, may offend the recipient of the communication.

77 This last rule of construction thus ties the process of ascription of meaning to the provision in question closely to the operation and consideration of the two-stage test in Lange and Coleman . This is especially so where, as here, one has a broad relative concept, such as "offensive". The process of construction or reading down can be done within a broad scope of content of meaning of such a word to a relevant content, if any, as would not lead to constitutional invalidity. Of course, if competing considerations make such a reading down impermissible as contrary to the proper meaning of the word, then the Court is not permitted to rewrite the section. It is construction of the words of Parliament that is the task being engaged in, not legislative drafting.

78 The purpose of the provision was said by the Director of Public Prosecutions to be "the integrity of the post". The appellants' submissions tended to deride this expression of the matter as inappropriately vesting services with some animate form or essence. I respectfully disagree with that criticism. Part of an ordered and civil society involves communications that come to individuals, personally addressed to them, at their homes or other places by some form of postal service. Use of the postal service that is menacing, harassing, or offensive intrudes upon members of the community in a way which could undermine a sense of civil peace and security by permitting the intrusion of such communications into the lives of members of the community, without warning and without their consent. It is legitimate in the maintenance of an orderly, peaceful, civil and culturally diverse society such as Australia that services that bring communications into the homes and offices of people should not be such as to undermine or threaten a legitimate sense of safety or security of domain, and thus public confidence in such services.

79 The above is the context in which to give meaning and content to the word "offensive" in s 471.12. The word "offensive" is a relative descriptor. It is, of course, the way the postal service is used that is to be offensive - not that someone is in fact, or may be, offended by a communication sent via the post. The character of the use is the question - by reference to an objective standard: see the discussion in the note by Mr Hutley (as his Honour then was) in (1941) 14 Australian Law Journal 384 at 385. A standard is required for the assessment by reasonable persons, in all the circumstances, of the intrinsic quality of the act: Anderson v Kynaston [1924] VLR 214 at 217 (Cussen ACJ), Ball v McIntyre (1966) 9 FLR 237 at 240-241 (Kerr J) and R v Burgmann (Court of Criminal Appeal, 4 May 1973, unreported), in particular, Jacobs P. To predicate satisfaction of a provision such as s 471.12, insofar as it refers to "offensive", on the finding that the person to whom the communication was made was offended would be an intolerably wide meaning for a criminal provision. The use of the service must be offensive in a serious way and judged so intrinsically by reference to a standard against which the quality of the communication sent via the post can be judged. The need for a standard to assess the quality of the act in question is assisted by the requirement that it is what reasonable persons in all the circumstances would regard as offensive use of a postal service. Thus, as Mr Hutley said in his note at 385, this excludes the citizen "lacking the vanity of the Coroner in Ex parte Collier [(1877) 1 Knox (NSW) 513] or the touchiness in money matters of the prosecutor in Sellers v Bishop [(1905) 11 ALR (CN) 61] or the exaggerated sense of personal rectitude of the prosecutor in Windred v Manion [(1918) 14 Tas LR 36]".

80 One is assisted in the task of ascription of meaning to the word "offensive" here by the consideration of cases such as Worcester v Smith [1951] VLR 316, Ball v McIntyre , R v Burgmann and Inglis v Fish [1961] VR 607, as discussed by the Chief Justice. The word "offensive" is capable of encompassing within its meaning the sense that the act or communication is such as to cause, amongst other things, hurt or wounding. It also encompasses the sense that the act or omission is such as to cause or arouse anger, outrage, resentment, disgust or hatred. How wide the meaning should be taken to be in the context of the implied political freedom requires an appreciation of the potential scope of the political freedom.

81 The impact of the implied freedom on construction depends upon the extent to which the communications protected by the Constitutional freedom could be expected to fall within the meaning of the provision. The freedom is derived from the text and structure of the Constitution and the form of representative government provided for in the Constitution: Lange at 560. The freedom, so textually founded, is to protect choice inhering in the election of representatives by the ensuring of "an opportunity to gain an appreciation of the available alternatives": Lange at 560, citing Dawson J in Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; 177 CLR 106 at 187. The election is of representatives to pass laws in Parliament, the constitutionality of which is, at root, founded on their rational character: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at 512-513 [101]-[102] (Gaudron J, McHugh J, Gummow J, Kirby J and Hayne J), made after rational debate, which laws are to be administered by the Executive reasonably and in good faith, and adjudicated upon by an independent judiciary reasoning according to rational, fair and just criteria. The freedom is not absolute or an uncontrolled licence, but an implication of freedom under law of an ordered and democratic society: Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; 177 CLR 106 at 169 (Deane J and Toohey J) for the protection of a system of government of laws and not men, through the free choice of representatives in order that they might make rational coherent law and guide or lead an ordered civil society. In these circumstances, it was available to conclude that the communications so protected were of rational and reasoned debate, even though such debate might be "full, compelling, trenchant, robust, passionate, indecorous, acrimonious and even rancorous": Coleman at 125 [330] (Heydon J). The consequence of this view would be that there was no call for the protection of communications that are calculated to cause significant anger, significant resentment, disgust, outrage or hatred.

82 That, however, is not the limit of the protection. In Coleman , McHugh J said at 54 [105] the following:

"The use of insulting words is a common enough technique in political discussion and debates. No doubt speakers and writers sometimes use them as weapons of intimidation. And whether insulting words are or are not used for the purpose of intimidation, fear of insult may have a chilling effect on political debate. However, as I have indicated, insults are a legitimate part of the political discussion protected by the Constitution. An unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom. Such a prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted to maintaining the system of representative government."

It is, with respect, not clear whether Gummow J and Hayne J at 77 [195] agreed with this paragraph when they said that the freedom described in Lange operated on the common law and the legislative authority of the polities in the manner described by McHugh J. In any event, they themselves said at 78 [197] that insult and invective are well-known forms of political communication. Kirby J at 91 [239] said that insult, emotion, calumny and invective are part of the "armoury" of political persuasion and the struggle for ideas. Political communication may, as Gleeson CJ said in Coleman at 31 [28] include "indecency, obscenity, profanity, threats, abuse, insults and offensiveness" (though the Chief Justice was not of the view that the implied political freedom necessarily protected such communications, indeed to the contrary).

83 Recognising the scope of the protection referred to by McHugh J, Gummow J, Kirby J and Hayne J in Coleman , the word "offensive" in s 471.12 should not extend to use of a character calculated to cause hurt or injury to feelings or even to wound. The seriousness and gravity of the notion of offensive in this context should be limited, at least, as the Chief Justice says to use of a character objectively calculated or likely to cause or arouse significant anger, significant resentment, disgust, outrage or hatred.

84 So provisionally construed, is the provision valid? Does the law, so construed, effectively burden freedom of communication about government or political matters by its terms, operation or effect? The provision is not one that by its purpose is directed to communications about government or political matters: cf Australian Capital Television Pty Ltd v The Commonwealth at 143 (Mason CJ), 169 (Deane J and Toohey J) and 234-235 (McHugh J); Nationwide News Pty Ltd v Wills [1992] HCA 46; 177 CLR 1 at 76-77 (Deane J and Toohey J); Cunliffe v The Commonwealth [1994] HCA 44; 182 CLR 272 at 299-300 (Mason CJ), 337-339 (Deane J) and 388 (Gaudron J); and Levy v Victoria [1997] HCA 31; 189 CLR 579 at 618-619 (Gaudron J). Nevertheless, it criminalises the use of the postal services for types of communications. Undoubtedly, the postal services are essential mechanisms by which communication about political and governmental matters are carried out and made. Even if one limits the matters to those to which I have referred above, given the potential scope of political communication, the provision would effectively burden freedom of communication about governmental or political matters. Some political communications may, by their very nature, be objectively calculated or likely to cause or arouse significant anger, significant resentment, outrage, disgust or hatred. The question as to the provision's validity is whether it is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people.

85 I have earlier described what I consider to be the legitimate end of the provision in respect of the postal services. Is the provision adapted to serve that end in the compatible manner? It would clearly not be if it criminalised any use of the post to communicate material that would or might offend some people. That is not, however, the content of the conduct criminalised as I have suggested.

86 One can readily contemplate political communications sent by the post that are calculated to cause or arouse significant anger, significant resentment, disgust, outrage or even hatred. This is conduct that might in the eye of the sender of the communication aptly polarise and bring to public attention the extreme or unpopular view of the sender. A sense of anger, outrage, resentment, disgust or hatred caused by the making of the communication may be the perceived change to political consciousness or a step along that path that is thought to be required. This may be attempted by many means, including abusive or hurtful statements. Parties are free to communicate in the way described by McHugh J, Gummow J, Kirby J and Hayne J in Coleman . Accepting this, the criminalising of conduct that is objectively calculated or likely to cause or arouse significant anger, significant resentment, outrage, disgust or hatred may be seen to strike at a range of a legitimate type of communications on political or governmental matters.

87 That said and accepted, it is necessary to recognise that an important feature of the post is that it enters into the home or place of work or business of the recipient as an addressee (even if some addressees may be generic such as 'the householder'). A distinction may be drawn between the general freedom to distribute information on political and governmental matters and forcing upon people in their own homes or domains by use of the post information calculated to offend in the way that I have described. There may be seen to be a clear interest in prohibiting intrusion into the homes, workplaces and private domains of people of communications calculated to offend in this way; cf Rowan v United States Post Office Department 397 US 728 at 736-737 (1970) and Cohen v California 403 US 15 (1971).

88 The question is whether the protection of the citizen from the invasion into his or her home or domain by unwanted and unrequested communications calculated or likely to offend in the way that I have described is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Limited in the way I have suggested: use of the postal service of a character objectively calculated or likely to cause or arouse significant anger, significant resentment, disgust, outrage or hatred, the provision is reasonably appropriate and adapted to serve the end of maintaining confidence in the postal services bringing communications to people in their homes, workplaces or personal domains. The difficulty is whether it is so adapted in a manner that is compatible with the ends of the freedom protected. This is an evaluation of some difficulty. I was initially of the view that even so construed the criminalisation of conduct potentially within the scope of political or government communications meant that the provision was not compatible with the ends that the freedom seeks to maintain. It would, for instance, risk making criminal the use of the post to send to all people or a large group of people a communication on governmental or political matters that would be objectively calculated or likely to cause significant anger, significant resentment, disgust, outrage or hatred by expression of strongly held and bitterly opposed beliefs. The tribunal of fact would, of course, be required to recognise that one of the circumstances that reasonable persons would take into account would be the recognition of the existence and importance of the freedom of political expression.

89 One way of reading the provision that would perhaps be seen as ensuring its validity would be to give an even narrower content to "offensive", though still conformable with its legitimate linguistic and contextual meaning. An additional qualification could be added, being one that takes an element of meaning from the surrounding words of "menacing" and "harassing" by being directed to an additional requirement of causing of real emotional or mental harm, distress or anguish to the addressee. This would see the word "offensive" mean "use of the postal service in a manner or of a character objectively calculated or likely (a) to cause or arouse significant anger, significant resentment, disgust, outrage or hatred and (b) to cause real emotional or mental harm, distress or anguish thereby".

90 So further limited, the provision would provide a positive answer to the second Lange question. One can engage in political communication of the most robust, insulting and disgusting character without being calculated or likely to cause real emotional or mental harm or distress or anguish thereby, to recipients of communications in the post. It is one thing for a communication to be calculated or likely to cause or arouse significant anger, significant resentment, outrage, disgust or hatred. It is another for it to be also objectively calculated or likely to harm emotionally or mentally in a real way thereby through the use of the postal service carrying communications into the home or personal domain of an addressee of a communication.

91 It must, however, be recalled that this is a process of statutory construction and not legislative drafting. In the end, I am content to rest with the meaning of "offensive" proposed by the Chief Justice. Though there is a not insignificant potential impact upon communications that could be on political or governmental matters, the considerations of the protection of the confidence of people using the postal services and the prevention of a sense of invasion into the lives of addressees or recipients of post, uncalled for and uninvited, through the postal services are such as to make the means compatible in the relevant respects called for. Persons can offend in the way proscribed by s 471.12 without using the post: cf Cohen v California at 21 and Rowan v Post Office Dept at 738.

92 For these reasons I agree with the orders proposed by the Chief Justice.

93 McCLELLAN CJ at CL: I have had the considerable benefit of reading in draft the reasons of the Chief Justice and the President.

94 The appellants have been prosecuted for an alleged breach of s 471.12 of the Criminal Code 1995 (Cth). That section makes it an offence to use a postal service in a way "(whether by the method of use or the content of the communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive."

95 The appellants submitted that the indictment under which the respondent seeks to have them tried should be quashed because it infringes the implied constitutional freedom of political communication. The appellants' argument relies upon the High Court's confirmation of the protection by the Commonwealth Constitution of the freedom of communication between people concerning political or government matters ( Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520). The freedom is not absolute but "is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution" (at p 561).

"The freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end." (p 561-562)

96 Two questions arise ( Lange at p 567-568 Coleman v Power [2004] HCA 39; 220 CLR 1 at [93]-[96]). The first question is whether s 471.12 of the Criminal Code has the effect of burdening the freedom of communication about government or political matters. The primary judge answered this question in the affirmative. The appellants and the Solicitor General for the State of New South Wales who intervened agree with that answer. The Director of Public Prosecutions ("DPP") contends to the contrary.

97 The second question is whether the section is reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the system of government prescribed by the Constitution. Her Honour also answered this question in the affirmative. The appellants contend to the contrary.

98 Section 471.12 was added to the Criminal Code in 2002. Accordingly, it may be assumed that the Parliament when enacting the amendment was mindful of the High Court's decision in Lange .

99 The section does not proscribe all conduct of the relevant kind but only that which "reasonable persons" would regard in all the circumstances as having the relevant character. The reasonable person test is of course a formulation utilised in many areas of the law, including the criminal law. In the present context the reasonable person will be attributed with knowledge of the Australian system of government and with the nature of political discourse within the Commonwealth and otherwise with a knowledge of acceptable contemporary norms of written communication between persons.

100 The Macquarie Dictionary defines "menacing" as conduct which imports a threat to cause harm or injury. To "harass" would be commonly understood as meaning to "trouble by repeated attacks" (Macquarie Dictionary). "Offensive", in the present context, (which would obviously exclude the use of the term in relation to war), is given meaning by the dictionary covering the range from "causing offence or displeasure to repugnancy in the moral sense or insulting" (Macquarie Dictionary).

101 The argument in the present case was not concerned with the consequence of the inclusion of the words "menacing" or "harassing" in the section but with the word "offensive." As Gleeson CJ said in Coleman v Power (2004) 220 CLR 1 at [12] concepts of what is offensive will vary with time and place and may be affected by the circumstances in which the relevant conduct occurs. In Ball v McIntyre (1996) 9 FLR 237 to which Gleeson CJ referred in Coleman, Kerr J held that the conduct of a demonstration against the Vietnam war which may have been offensive to some people was not offensive within the meaning of the relevant statute.

102 Some of the judges in Coleman discussed the reach of communications which are protected by the implied freedom of political communication. In Australia communications concerning political or governmental matters may be "insulting," "biting" or "offensive" (McHugh J at [81]). Australian politics "has regularly included insult and emotion, calumny and invective" (Kirby J at [239]). Their Honours' approach may be described as robust.

103 Heydon J adopted a more refined approach to what might constitute legitimate political discourse. His Honour said:

"To address insulting words to persons in a public place is conduct sufficiently alien to the virtues of the free and informed debate on which the constitutional freedom rests that it falls outside it" [332].

104 Kirby J responded to Heydon J in these terms (at [238]-[239]):

"Reading the description of civilised interchange about governmental and political matters in the reasons of Heydon J, I had difficulty in recognising the Australian political system as I know it. His Honour's chronicle appears more like a description of an intellectual salon where civility always (or usually) prevails. It is not, with respect, an accurate description of the Australian governmental and political system in action.

One might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion. They are part and parcel of the struggle of ideas. Anyone in doubt should listen for an hour or two to the broadcasts that bring debates of the Federal Parliament to the living rooms of the nation. This is the way present and potential elected representatives have long campaigned in Australia for the votes of constituents and the support of their policies. It is unlikely to change. By protecting from legislative burdens governmental and political communications in Australia, the Constitution addresses the nation's representative government as it is practised. It does not protect only the whispered civilities of intellectual discourse. 'Insulting' therefore requires a more limited interpretation in order for s 7(1)(d) to be read so as not to infringe the constitutional freedom defined in Lange. "

105 Although Heydon J's views as to the limit of legitimate political communication were not shared by the other members of the court, his Honour's remark makes plain that there are limits to the level of offence which may be occasioned by a protected communication. If that limit is passed, the implied constitutional freedom will not protect the maker of the statement.

106 Section 471.12 creates a criminal offence and must be understood in that context. When determining the reach of the section it must be borne in mind that the reasonable person will be mindful of the robust nature of political debate in this country when considering whether in the circumstances of the particular case the use of the postal service was menacing, harassing or offensive.

107 It is not difficult to accept that if the postal service was used to forward faeces to another, even in pursuance of a political objective or in making a political statement, reasonable persons would find that use of the postal service to be offensive within the section. If the level of invective in any postal communication was such as to cause psychological injury to an otherwise reasonably robust personality or tend to invite a spontaneous response in breach of the peace, reasonable persons may also regard that use as relevantly offensive. This conclusion will follow from the fact that the reasonable person would consider that the offence occasioned by these uses of the service has the consequence that they fall outside the limits of legitimate political debate.

108 It is unnecessary to decide whether any communication touching upon matters of politics or government, however extreme, is a communication about government or political matters and will fall within the first limb in Lange. For present purposes I accept that it is, although the contrary argument has merit. Accordingly, for present purposes however menacing, harassing or offensive such a communication it would nevertheless be a communication which is prima facie protected by the implied constitutional freedom of political communication.

109 The question in the present case is whether the section is a reasonably appropriate response fairly adapted to meet the legitimate end of regulating the postal service which is compatible with the system of government proscribed by the constitution ( Lange at 562). To prohibit the use of the mail service in the Dictionary sense of to offend, ie cause displeasure, insult or occasion displeasure in the moral sense would clearly infringe the implied constitutional freedom of political communication and would be incompatible with the maintenance of the system of government prescribed by the Constitution.

110 The consideration of previous decisions referred to by the Chief Justice, which I have found of assistance and need not repeat, reveals the problems which the courts have faced in giving meaning to legislation which criminalises offensive behaviour. Without any statutory indication of the standard against which to assess the quality of the particular conduct the task has proved to be difficult. It can only be undertaken by attempting to identify particular characteristics of the conduct or its possible consequences.

111 In Coleman , the High Court, by majority, rejected the challenge to the validity of the relevant section of the Vagrants, Gaming and Other Offences Act 1931 (Qld). Gummow and Hayne JJ arrived at this conclusion by confining the operation of the section to words used in a public place which are provocative "in the sense that either they are intended to provoke unlawful physical retaliation or they are reasonably likely to provoke unlawful physical retaliation" [183] from another person. Construed in this manner the section was reasonably appropriate and adapted to keeping public places free from violence and accordingly compatible within the maintenance of the system of government provided by the Constitution.

112 Kirby J confined the operation of the section "to the use in or near a public place of threatening, abusive or insulting words that go beyond hurting personal feelings and involve words that are reasonably likely to provoke unlawful physical retaliation" and accordingly the section did not "diminish, disproportionately, the federal system of representative and responsible government" [256] (see also Callinan J [298]).

113 McHugh J took a different view. His Honour did not accept the submission of the Solicitor-General for Queensland to the effect that the object of the relevant section was to proscribe statements which may provoke a breach of the peace. His Honour also rejected the proposition that the relevant section was aimed at removing threats, abuse and insults from the area of public discussion, so that persons would not be intimidated into silence [101].

114 The actual decision as opposed to the principles discussed in Coleman is of little assistance when construing s 471.12. The offering of an insult or the making of a statement which causes offence in a public place may, as the majority said in Coleman, lead to a breach of the peace which it is proper for the criminal law to endeavour to seek to avoid and for that purpose provide a relevant offence. However, it may be different when the communication is made in private and through the postal service.

115 The postal service is provided to facilitate personal, business and other communication. A great many, indeed the overwhelming frequency of its uses, will be for purposes entirely unrelated or only incidental to any matter relating to politics. The reasonable person will be aware of the nature and purpose of the service. Such a person will also be aware of the robust nature of accepted political discourse in Australia.

116 There can be no doubt that the communications the subject of the present proceedings would be grossly offensive to many people whether the intended recipient of the communication or otherwise. However, the validity of the section cannot be assessed by considering the context of a particular communication or its capacity to cause displeasure, insult or engender moral outrage or harm an individual. History is replete with occasions when the expression of views which occasion moral outrage in one generation pass with little comment in another. Communications intended to incite a physical response occasioning harm to an individual or group may be universally condemned in any generation but those which offend or hurt feelings or occasion moral outrage may not have the same quality. However, it is not for this Court to express an opinion as to the character of the alleged conduct of the appellants. That will be a matter for the jury at any trial.

117 As I have previously emphasised, before there can be a breach of s 471.2 the use made of the postal service must be a use in a way which a reasonable person would regard as offensive. This was the approach suggested by Mr Hutley to be necessary if legislation proscribing offensive conduct is to have effective operation (14 ALJ 384). This was also the issue emphasised by Reynolds JA in R v Burgmann (Court of Criminal Appeal, 4 May 1973, unreported).

118 As I understand the view of the majority in Coleman the Parliament is entitled by statute to provide a boundary beyond which political or government communications may be constrained as a breach of the criminal law. However, in the present context given the robust nature of legitimate political or governmental communications, before any statutory control will be valid it must operate to allow the accepted latitude in the use of the postal service. To my mind s 471.12 conforms to this requirement. A political communication which in the ordinary meaning of the word is offensive does not fall within the section. The section will only be breached if reasonable persons, being persons who are mindful of the robust nature of political debate in Australia and who have considered the accepted boundaries of that debate, would conclude that the particular use of the postal service is offensive.

119 In my opinion the section is reasonably appropriate and compatible with the system of government prescribed by the Constitution.

120 I agree with the orders proposed by the Chief Justice.

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Decision last updated: 08 December 2011