District Court New South Wales

• Medium Neutral Citation: R v MONIS; R v DROUDIS [2011] NSWDC 39
• Hearing dates: 11, 12 & 13 April 2011
• Decision date: 18 April 2011
• Jurisdiction: Criminal
• Before: Tupman DCJ

Decision

Notices of Motion dismissed

• Catchwords: CRIMINAL LAW - motion to quash indictments on grounds that charges are invalid; CONSTITUTIONAL LAW - Commonwealth offence of using a postal service in an offensive manner - s471.12 Criminal Code Act - letters sent to families of ADF members and others killed in Afghanistan or in Marriott Hotel bombing in Jakarta - comments including references to legality of wars in Iraq and Afghanistan - implied constitutional freedom of political communication - Lange test first and second limbs considered - terms "offensive" and "harassment" considered and construed - purpose of Commonwealth legislation considered
• Legislation Cited: Criminal Code Act 1995 (Cth); Judiciary Act 1903 (Cth); Summary Offences Act 1988; Post and Telegraph Act 1901 (Cth); Postal Services Act 1975 (Cth); Freedom of Information Act 1982 (Cth); Family Law Act 1975 (Cth); Evidence Act 1995; Crimes (Domestic and Personal Violence) Act 2007; Jury Act 1977; Crimes Act 1900; Crimes Act 1914 (Cth)
• Cases Cited: Lange v Australian Broadcasting Corporation (1997) 198 CLR 520; Coleman v Power (2004) 220 CLR 1; Bropho v HREOC (2004) 135 FCR 105; Spence v Loguch BC9101434 NSWSC; Malvern v Bradbury (1971) 17 FLR 345; Hogan v Hinch [2011] HCA 4; Evans v State of New South Wales [2008] FCAFC 130
• Category: Interlocutory applications
• Parties: Man Haron MONIS (Applicant); Amirah DROUDIS (Applicant); Director of Public Prosecutions (Cth) (Respondent)
• Representation: Counsel: G O'L Reynolds SC with G Rubagotti and; M Gleeson (Applicant); D M J Bennett QC with S Grant (Applicant); J V Agius SC with M McHugh (Respondent); Solicitors: Ford Criminal Lawyers (Applicant); Sydney Defense Lawyers Pty Ltd (Applicant); Director of Public Prosecutions (Cth) (Respondent)
• File Number(s): DC 2009/00236443; DC 2010/00260817

Judgment

NOTICES OF MOTION TO QUASH INDICTMENT ON GROUNDS OF INVALIDITY

1 These Notices of Motion dated 13 th April, 2011 for the accused Monis, and 8 th April, 2011 for the accused Droudis, Amended on 13 th April 2011, seek to have the indictment quashed on the basis of a finding that the charges are brought pursuant to a law which is invalid, because it infringes the implied Constitutional freedom of political communication.

2 The two accused in this trial have been charged, in a joint indictment, with 21 offences brought pursuant to S471.12 of the Criminal Code 1995 (Cth) . That section is found within Chapter 10 of the Code, which is entitled " National Infrastructure" , within Part 10.5 of that Chapter which is entitled " Postal Services" and further is found in Division 471, Subdivision A of that Chapter which is entitled " Postal Offences - General Postal Offences".

Trial Charges

3 The substantive offences are brought pursuant to S471.12 of the Criminal Code 1995 (Cth) which provides the following:

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.

4 The accused Monis, faces 13 counts contrary to S471.12, all but one alleging that on various dates he used a postal service in an offensive way by sending letters to persons who were in each case either relatives of members of the Australia Defence Force who had been killed in combat in Afghanistan, or in the case of one of the counts, Count 12, were relatives of an Austrade official who had been killed in the bombing of the Marriot Hotel in Jakarta on 17 July 2009. One of the 13 counts, namely count 3, alleges that he used a postal services in an harassing manner by sending a letter to the relatives of a member of the ADF killed in combat in the war in Afghanistan.

5 The other accused, Droudis is charged under the same section with the remaining 8 counts in the indictment, namely counts 14 to 21 inclusive, with aiding and abetting the co-accused's commission of 8 of the 13 counts against him. For all of those 8 charges, the substantive offence alleged against the co-accused Monis is that he used the postal service in an offensive way. Thus for the accused Droudis, she faces 8 counts of aiding and abetting the co-accused's using the mail to send offensive letters to those nominated persons.

Trial History

6 The accused Monis was committed to stand trial in the District Court of NSW at Sydney for the 13 charges against him alone on 7 th July, 2010. He was due to stand trial commencing 1 st November 2010. An application to vacate the trial date was ultimately granted, and the trial was listed to commence in the District Court on 11 April, 2011. In the meantime, the accused Droudis was committed for trial on the 8 charges against her from the Local Court on 15 February, 2011. The Commonwealth Director of Public Prosecutions ("CDPP") then presented an indictment joining both accused and their joint trial was listed to commence in the District Court on 11 April, 2011.

7 Before the appointed trial date, the accused commenced proceedings seeking to remove the District Court proceedings into the High Court of Australia, to have the Constitutional issue tested. The accused filed Notices of Motion in the District Court seeking that the trial date of 11 th April, 2011 be vacated and that the trial be stayed pending the High Court's determination of their applications to remove the proceedings. Their Notices of Motion were heard on 22 nd March, 2011 and were dismissed. As I understand it, in the meantime, the applications to remove the District Court proceedings to the High Court of Australia were dismissed by that Court.

8 Thus the trial commenced in this Court on Monday 11 th April. The accused each filed Notices of Motion which, when ultimately amended by leave, seek the following substantive orders.

(1) That the following question be determined separately, namely whether S471.12 of the Criminal Code Act 1995 (Cth) is invalid (wholly or in part) on the ground that it infringes the implied constitutional freedom of political communication.

(2) That the indictment be quashed.

9 I am satisfied, and there is no dispute, that appropriate Notices pursuant to S78B of the Judiciary Act 1903 (Cth) have been served on the Attorneys General of the Commonwealth, Territories and the States. There have been no interventions by any of them on the hearing of the Notices of Motion before me.

Nature of the Implied Constitutional Freedom

10 The reference in the Notices of Motion to "the implied constitutional freedom of political communication" refers to that constitutional principle, ultimately expressed by unanimous decision of the High Court of Australia in Lange -v- Australian Broadcasting Corporation (1997) 189 CLR 520 ( "Lange" ) providing for a constitutional principle defending freedom of communication concerning governmental or political subjects.

11 A similar situation to that before me was considered by the High Court in Coleman -v- Power (2004) 220 CLR 1 ( "Coleman -v- Power"). That case was referred to extensively on the hearing of these Notices of Motion. In that case the High Court considered a Queensland law against this implied constitutional freedom, and in doing so restated and affirmed the principle expressed in Lange . As stated by Justice Kirby at paragraph 210 of Coleman -v- Power :-

"Lange establishes that two questions must be answered when deciding the validity of a law alleged to infringe the implied constitutional freedom of communication: (1) Does the law effectively burden freedom of communication about governmental or political matters, either in its terms, operation or effect? (2) If so, is the law reasonably appropriate and adapted (or, as I prefer to express it, proportional) so as to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the system of government prescribed by the Constitution?"

Subject Matter of the Charges against these Accused

12 The subject matter of the charges for trial against the two accused before me involves letters and CDs sent through the post. The content of this correspondence has been tendered. The accused argue that this correspondence is communication concerning political or governmental affairs, including Australia's foreign policy and engagement in the wars in Iraq and Afghanistan. Many of the letters sent to family members were copied and sent to various political figures including the Prime Minister, the Leader of the Opposition, the Defence Minister and similar.

13 The notion of political debate or communications is broad, but not unlimited. The CDPP refers to two decisions where challenges to the validity of legislation based on an alleged breach of this Constitutional freedom failed, in part because the communications could not properly be construed as political or governmental communications (see Holland -v- The Queen [2005] WASCA 140 and APLA Limited & Ors -v- Legal Services Commissioner of New South Wales & Anor (2005) 224 CLR 322). The CDPP argues in relation to the correspondence the subject matter of the 21 charges in this trial, that when properly analysed, they are not part of a political debate at all but amount to personal offence to the families of the deceased, which would fall outside the realms of political discourse.

14 For the purpose of deciding these Notices of Motion, I am not required to analyse each of the letters in detail to make a finding about whether all aspects of them amount to political debate. There is no doubt room for either or both, legal or factual debate and difference about how much, if any, of these pieces of correspondence truly fall into the category of communications concerning political or governmental affairs and whether or not some parts are outside that definition and amount simply to personal communications, not as part of political debate. I am however required to determine whether the correspondence, assessed broadly, is capable of being assessed as political or governmental communications. I accept that it is, even if there may be room for doubt about whether all of the content of all of the letters falls into that category. Every one of the letters makes reference either directly or by inference to what is alleged by the authors to be an unlawful war in Afghanistan and many of them are copied to political figures. They have the flavour of a political campaign in a broad sense.

Construction of the Legislation

15 The first step I must take to determine these Notices of Motion is to construe the legislative provision under attack. For the accused Monis that attack relates to the terms "harassing" and "offensive" in S471.12(b) and for the accused Droudis the attack is limited to the term "offensive" within that provision because they are the only charges she faces. Neither is charged with sending "menacing" mail and I am not required to determine or construe any meaning of that word as it appears in S471.12(b). I accept that the terms must be construed within their statutory context. To this end, a brief outline of the legislative history is necessary.

Legislative History

16 There has been a provision in Commonwealth law similar to S471.12 since 1901. The terms of past provisions are not identical but similar. Without reproducing the exact words of the past provisions, they include the following:

• S107 of the Post and Telegraph Act, 1901 , in force from 1 December 1901 to 30 June 1975, which prohibited sending by post an article which contained or displayed anything of a "...grossly offensive character" ;
• Regulations 53 and 53A , in force from 1 July 1975 to 1 July 1989, made pursuant to the Postal Services Act, 1975 which inter alia prohibited sending by post unsolicited articles which contained or displayed matter of "..an offensive nature" ;
• S85S of the Crimes Act 1914 (Cth), in force from 1 July 1989 to 30 July 1997 which prohibited intentionally using the post supplied by Australia Post "..in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive" ;
• S85S of the Crimes Act 1914 (Cth) was amended twice between 1997 and 2002 but in each case the amended provision prohibited the use of the postal service supplied by Australia Post "..in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive".
• The current S471.12 with one amendment, replaced S85S of the Crimes Act 1914 from 4 April, 2002 to the present, inserted originally by the Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002.

Meaning of Offensive

17 The term is not defined within the legislation. There have been many decided cases defining the term generally. The term "offensive" is capable of many meanings, ranging from relatively minor to more serious.

18 Meanings within the Oxford English Dictionary include - "hurtful, harmful, injurious" and "giving, or liable to give, offence; displeasing; annoying; insulting" and, taken from the decision of French, J as he then was in Bropho -v- HREOC (2004) 135 FCR 105 at paragraph 67, "...definitions in the Shorter Oxford English Dictionary include....to vex, annoy, displease, anger... to excite personal annoyance, resentment, or disgust...".

19 It is most often to be found in legislation seeking to control public behaviour, such as S4 of the NSW Summary Offences Act, 1988 . These provisions have been construed frequently by the Courts in NSW. (See Spence v Loguch NSWSC, Sully, J, 12 November, 1991, unreported, including His Honour's analysis of earlier cases construing the term). For offences within that Statute, which prohibit offensive behaviour, manner or words, I accept that the construction ultimately accepted by the courts is that "offensive" means something that is likely to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.

20 The term has been construed also as it appeared in one of the earlier versions of S471.12 of the Criminal Code 1995 (Cth) , albeit only by a court of intermediate jurisdiction. In Malvern -v- Bradbury (1971) 17 FLR 345 Henchman Ch Q.S., in the New South Wales Quarter Sessions, dealt with an appeal from conviction for an offence contrary to S107(c) of the Post and Telegraph Act 1901-1968 which prohibited sending any postal article either containing or depicting words inter alia of a "grossly offensive character" . The term in that case was defined as having a meaning similar to that for offensive behaviour and reference was made to some of those authorities that appear in the following paragraph of this judgment. At page 349 the Chairman held the meaning of "grossly offensive character" to be the same as for offensive behaviour, finding that "the test is how a reasonable man would regard the actual words in the postal article. Would he regard them as calculated to wound the feelings, arouse anger, resentment , disgust or outrage in his mind?" He was at pains to limit construction of the term so that something which was merely hurtful or even improper or blameworthy did not fall within a proper construction of the term in S107(c) of the Post and Telegraph Act 1901-1968.

21 This construction is in line with decisions in Australian courts generally, including those to which I have been referred by the parties on this Notice of Motion. (See Worcester v Smith [1951] VLR 316; Inglis v Fish [1961] VR 607 and Ball v McIntyre [1966] 9 FLR 237.)

22 A further basis for this somewhat more restricted construction is that in each of these authorities, just as for S471.12 of the Criminal Code 1995 (Cth) , the challenged provisions created criminal offences. The legislature cannot have intended to create a criminal offence for doing no more than sending through the post material which was merely hurtful, annoying or displeasing. Patrick -v- Cobain (1993) 1 VR 290 it seems to me is authority for this proposition. It was the lack of criminal connotation in the challenged Victorian Local Government Act, 1989 provision under review, which led Justice Gobbo in the Supreme Court of Victoria to construe the term "offensive material" in a very broad way whilst, with respect it seems to me, recognising that such a broad definition would not have been available if a criminal offence or outcome had been created by the provision.

23 It is also relevant in construing the term "offensive" in its statutory context, to take account of the fact that it appears as a group of three words , "menacing, harassing or offensive" and thus, in any statutory construction, it is appropriate to construe these words as being of similar nature, part of a class. To adopt the words of Kirby, J in Coleman -v- Power at paragraph 224, an examination of "...the situation of the word " (in this case "offensive") "...in a concatenation of words that include" (in this case "menacing and harassing" )"...also suggest(s) the narrow interpretation."

24 It is thus appropriate it seems to me for all of these reasons to construe the term "offensive" in this somewhat more restricted way for the purposes of S471.12 of the Criminal Code 1995 (Cth) . 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 the 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 me that there is nothing in the authorities to support this construction, nor does such a construction arise otherwise.

Meaning of Harassing

25 There is one charge against the accused Monis alone, Count 3, which alleges that he used a postal service in a harassing way, which is also subject to challenge as to its validity on the same basis, namely that it infringes the constitutional freedom of political and governmental discussion.

26 Similarly to a construction of the term "offensive" I must first construe the term "harassing" in its statutory context. Identical considerations apply, namely bearing in mind that the section creates a criminal offence and that the term "harassing" appears as part of a group of three words, "menacing, harassing or offensive" .

27 There is no definition of the term "harassing" either within the relevant Chapter or within the Criminal Code 1995, (Cth) at all. Neither the CDPP nor counsel for the accused Monis has referred me to any statutory definition of the term or any relevant authority in which the term has been construed. The term "harassing" appears in Australian legislation, both Commonwealth and State, including the Freedom of Information Act, 1982 (Cth) in provisions relating to vexatious litigants where it occurs as one of two words, "harassing and intimidating" , the Family Law Act, 1995 in provisions providing for enforcement of injunctive relief where it is used as one of three words, "harassing, molesting or stalking", the Evidence Act, 1995 in relation to limits on cross examination, preventing cross examination which is " unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive" . It is frequently encountered in the Local Courts of NSW via the Crimes (Domestic and Personal Violence) Act 2007 which provides that every apprehended violence order is deemed to prohibit a person from, inter alia, harassing the protected person. It is a term also appearing in the NSW Jury Act, 1977 at S68A, in S60C of the NSW Crimes Act, 1900 and the Summary Offences Act 1988 at S11H. However it appears that in none of these statutes is the term defined, nor has it been construed .

28 The Dictionary definition of the term "harass" is:-

From the Macquarie Dictionary - "to trouble by repeated attacks, incursions etc., as in war or hostilities; harry; raid or to disturb persistently; torment";

From the Oxford English Dictionary - "to wear out, tire out, or exhaust with fatigue, care, trouble."

Other definitions include "to irritate or torment persistently", from the online source, freedictionary.com.

29 The common thread through all of these definitions appears to be the notion of repetition or persistence. The CDPP has argued that harassing should be construed as meaning something like "troubling with repeated offensiveness". It is argued on behalf of the accused that the significant feature of the term is the concept of repeated or persistent activity such as troubling or disturbing a person repeatedly, which could include with political views. I accept that these are both appropriate constructions of the term.

30 The essence of the term "harassing" however it seems to me is the repetition of the behaviour, be it acting in a troubling or offensive way, or in a menacing way. The concentration is on the persistence, in this case the persistent or repeated use of a postal service.

Impact of Construction of "Offensive" and "Harassing" on Challenge to Validity

31 Construed as above, the term "offensive" can have a connection to political and governmental discourse and communications. In other words legitimate political or governmental discourse or communication might well be pursued through material which is offensive. The authorities have recognised that political debate can be insulting and thus, I accept, also offensive. In Coleman -v- Power, Justices Gummow and Lehane said at paragraph 197,

"Insult and invective have been employed in political communication at least since the time of Demosthenes".

Later in Coleman -v- Power, at paragraph 239 Justice Kirby said:

"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."

32 So, that being the case, it then becomes necessary on these Notices of Motion to consider whether S471.12 is invalid as claimed, at least so far as that section prohibits the use of a postal service in an offensive way.

33 However, for the term "harassing" as construed above, it seems to me that there can be no effective connection between the harassing use of a postal service and anything that could be seen as political or governmental discussion, even in its broadest sense. If any such conduct amounts to persistent or repeated offensiveness, or persistent or repeated menace, then other parts of S471.12 apply. Political debate, even robust political debate, may indeed as the authorities have suggested include invective, offence, ridicule, insult and similar. But there is no logical connection between political or governmental communications and mere "harassment", meaning something which is persistent or repeated.

34 For that reason I do not accept that consideration of the implied Constitutional freedom arises in relation to that part of S471.12 which prohibits use of a postal service in a harassing manner.

Applying the Lange Test

35 As referred to earlier, the Lange test has two limbs. If the first limb is answered "yes" and the second limb is answered "no" then the law under review is invalid.

Lange - The First Limb

36 The first question to be answered in relation to S471.12 as it applies to the concept of "offensive" is, "Does the law effectively burden freedom of communication about governmental or political matters, either in its terms, operation or effect?"

37 I have been referred to a number of decisions post Lange, of which Coleman -v- Power is the most pertinent to the facts before me. Similar issues were considered by the High Court in Hogan -v- Hinch [2011] HCA 4 and by the Full Court of the Federal Court in Evans -v- State of New South Wales [2008] FCAFC 130. In all of the cases, the argument proceeded on a concession by all parties that the first limb of Lange would be answered in the affirmative in that particular case and so as I understand the submissions, there is no authority post Lange dealing with this first limb question. Those cases however are not determinative of the issue whether or not a particular law, even those under review, burdens freedom of political communication because of the concessions made in each of them.

38 That is not the case here. There are no such concessions. The accused each argue that because political discourse can be broad and, as referred to above, can even include insulting and, on my finding, offensive material, then a law which prohibits use of the postal service to send offensive material also by definition is capable of catching within it offensive material as part of political and governmental communications.

39 The CDPP argues that the answer to the first limb question in this case should be "no", in other words S471.12 as now limited to the term "offensive" does not in effect burden freedom of communication about governmental or political matters, either in its terms, operation or effect. It is argued by the CDPP that this is so in part because, as a law enacted post Lange, namely in 2002, it should not be inferred that the Legislature would have intended the section to burden freedom of political communication. Further it is argued that if at all, the burden is light.

40 I do not accept the CDPP's argument in relation to the first limb. For the reasons expressed above when dealing with the broad nature of political debate and the way that has been construed by the authorities, I accept that on its face S471.12, by prohibiting the use of a postal service to send offensive material is capable of infringing the implied constitutional freedom of political communication. The issue it seems to me is the potentiality of the particular law under review to infringe the freedom, not whether or not in a particular case that has occurred.

Lange - The Second Limb

41 After making an affirmative finding on the first limb question, then it is necessary to address the second limb of Lange, namely "...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..."

42 To deal with this question it is necessary to examine the purpose of the law, that is the purpose of S471.12 prohibiting the use of postal services to send offensive material. The legislative power is found in S51(v) of the Constitution which provides:

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:.......Postal, telegraphic, telephonic, and other like services.."

43 S471.12 is part of the Criminal Code 1995 (Cth) dealing with criminal offences arising in connection with the post. It is within a general subdivision which deals with general postal offences and includes offences prohibiting stealing or receiving postal articles, the dishonest use of postage stamps, damaging or tampering with the mail, all of these offences to be found in S471.1 to S471.9 inclusive. The subdivision then goes on to create other general postal offences including prohibiting sending postal articles which contain hoaxes about explosive or dangerous substances (S471.10), prohibiting use of postal services to threaten to kill or cause serious harm (S471.11), prohibiting the use of the post to send dangerous articles or to send explosives or dangerous substances (S471.13 and S471.15) and of course S471.12, the subject of these proceedings.

44 The CDPP argues that this provision has a dual purpose. Contrary to the initial view I raised during submissions I have come to the view that the CDPP's submissions in relation to this dual purpose are correct.

45 I accept that a clear purpose of the section is to protect the integrity of the post both physically and as a means of communication in which the public can have confidence. It seems to me that this is very clear from the terms of the section itself read within its statutory context. The Commonwealth's power to legislate for the peace, order and good government of the Commonwealth with respect to postal services clearly includes the purpose argued on behalf of the CDPP, including I accept a purpose in public policy to ensure that the public has confidence in the post. I accept that this includes, subject to the Constitution, enacting laws which ensure that publicly provided and funded postal services are not used as a tool to convey offensive material.

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 of 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.

47 Given that legislative purpose then, the question is whether or not this provision is appropriate and adapted to serve these legitimate aims, compatible with the maintenance of the constitutionally prescribed system of representative government.

48 The accused submit that it is not and cite in support what is said to be a majority view of the High Court in Coleman -v- Power to set aside the relevant conviction in that case. In fact in that case only one Justice found that the relevant law was invalid, namely Justice McHugh from paragraphs 35 to 145 and Coleman -v- Power it seems to me is not really such clear support for a view that the second limb of the Lange test would lead to the response "no" in the case before me, as is argued on behalf of the accused.

49 In Coleman -v- Power, whilst the criminal conviction arising from the disputed section was set aside by a majority of 5:2, only Justice McHugh did so by finding the section was invalid on the basis of the Lange test. Chief Justice Gleeson held that the law was valid, apparently on a more restricted construction of the disputed provision and having found that the disputed provision did not have restriction of political communication as a direct purpose but that it only incidentally restricted that freedom. The balance of the majority, Justices Gummow and Hayne in a joint judgment from paragraphs 146 to 206 and Justice Kirby from paragraph 207 to 268, whilst setting aside the conviction, did not hold the disputed law invalid but rather, as I understand their judgments, opted for a construction of the disputed section which was more restricted than that originally applied by the magistrate and which in fact was a construction which complied with the Lange test.

50 In the case before me I have found that the term "offensive" as used in S471.12 means more than just hurt feelings. To be guilty of an offence under this section as it refers to using the post to send an offensive communication, the communication must be 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. The ends which this provision seeks to meet is both to ensure the integrity of the post and to encourage continued public confidence in and use of the post but also to protect breaches of the peace which might occur when such an offensive communication is received and further to prevent harm in the nature of wounding of feelings, arousal of anger, resentment, disgust or outrage occurring to a citizen following receipt of such an offensive communication.

51 The matters I take into account, raised by the 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 matters concerning the circumstances in which such a communication is made.

52 Having considered all of these factors I have concluded that the S471.12 of the Criminal Code, 1995 (Cth) to the extent that it prohibits use of a postal service in an offensive manner, even though it is in fact capable of burdening freedom of communication about governmental or political matters, is nonetheless reasonably appropriate and adapted to serve its legitimate legislative end, in a manner which is compatible with the maintenance of the system of government prescribed by the Constitution.

53. For those reasons the Notices of Motion are dismissed.

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Decision last updated: 16 June 2011