Thursday, 28 February 2013

Monis v The Queen; Droudis v The Queen [2013] HCA 4: offensive post is not protected speech

You may not write to the parent of an Australian serviceman, who lost his life in the service of his country, and compare him to a pig and dirty animal. You may not call him a a murderer of civilians, and Adolph Hitler not inferior to him in moral merit. You may not refer to the deceased serviceman's body as 'contaminated' or the 'dirty body of a pig'. A person who does these things will attract criminal punishment under the Commonwealth Criminal Code for such sentiments, when they are expressed directly to the deceased's loved ones. These communications are not protected under the implied right to political speech found in Lange v ABC (1997) 189 CLR 520.

It's by a 3-3 split that the High Court decided that these are correct statements of law. (Though Heydon J, in his now-characteristic contrarian fashion, was really seizing on the opportunity to take a swipe at the defects of Lange.) The High Court ordered the appeals of the two men convicted of this behaviour dismissed.

At issue in Monis v The Queen [2013] HCA 4 was the validity of s 471.12 of the Criminal Code. That states:
471.12 Using a postal or similar service to menace, harass or cause offence

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.

The two accused were charged under the offensive limb of the section, for sending letters to deceased soldiers' families. That section doesn't have any direct equivalent under State law, though the prohibition of offensive conduct that occurs in public places is fairly common. Offences under s 464.14 are often charged, as alternatives or in combination with stalking charges, where offensive communication occurs over a telephone.

The two men were convicted at trial, and their convictions upheld by the NSW Court of Criminal Appeal.

The appeal to the High Court didn't allege error in their specific cases; ambitiously, it was argued that the offence itself was invalid, for offending the implied constitutional right to political expression, first voiced in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.

French CJ noted at [61]:

The now settled questions to be asked when a law is said to have infringed the implied limitation [to impose a burden on the freedom of communication on matters of government or political concern] are:
1. Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect? 
2. If the law effectively burdens that freedom, 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 and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people?

French CJ and Hayne J agreed that s 471.12 did infringe the implied limitation, and that it was not compatible with representative and responsible government. They would have allowed the appeal.

Heydon J went out on his own, severely criticising the implied limitation as 'unsatisfactory' and 'mysterious'. In pointed comments he noted that no attempt was made to argue that the cases establishing the implied limitation were wrong, and ripe for overruling. Clearly, he would relish the chance to deal with that argument. But, he conceded in the absence of overruling the implied limitation cases, the present state of the law required the result found by Hayne J (and also therefore by French CJ), and so he would have allowed the appeal.

On other thing about Heydon J's decision is that, in a nice touch not often able to be displayed in appellate reasons, he poetically acknowledged the strong feelings in the background to this case, and the loss felt by the parents of service members killed on active duty. It bears reading if for no other reading than to remember the human lives affected by the decisions of courts. I suspect Heydon J found no pleasure in reaching the conclusions he did, and was concerned (at the level of human empathy, rather than legal analysis) of their affect on the families who received the impugned letters.

In a joint judgment, Crennan, Kiefel and Bell JJ took the contrary view. They considered that s 471.12 does not impermissibly burden the implied freedom of communication about government or political matters. They considered the appeals should be dismissed, so that the original convictions would stand.

The end result? Three saying the appeal succeeded; three saying the appeal failed. (I have no idea why there were 'only' six justices deciding this case, rather than the usual 5 or 7, which would have at least provided a majority one way or the other.)

Section 23(2)(a) of the Judiciary Act 1903 (Cth) provides that where the High Court is evenly divided in its opinion the lower court's decision is affirmed. The appeal was dismissed, but because of the way that occurred, there is no ratio in this case because there's no majority decision, let alone majority reason for a decision: Re Tyler; Ex Parte Foley (1994) 181 CLR 18. It seems a wasted opportunity when the highest appeal court in the land is unable to provide any authoritative determination of the law, and the resulting decision is authority only for what it decided.


Jeremy Gans said...

Gummow didn't sit, almost certainly because he was to resign a few days after the hearing. Gageler didn't sit because his appointment was a few days after the hearing (but it's also possible that he would have been disqualified from sitting if he was involved in thus case as Solicitor-General.) This sort of thing is very unfortunate, especially in a criminal case.

The retirement problem could have been simply solved by delaying the hearing a week (or, as a more robust fix, by appointing the replacement judge a couple of months before the outgoing judge's retirement.) The potential conflict of interest is trickier, but it's also a bit precious, I think.

But the real disappointment is the joint judgment's insipid take on free speech. It's judgments like that that support Heydon's argument that this particular constitutional doctrine isn't worth having.

Jeremy Gans said...

A couple of other points:

- another solution would have been to make this a five judge case. The usual approach is to have all the judges in constitutional cases, but that isn't required. Section 23(1) just requires at least three judges ruling on constitutional points. However, the problem of having five is that the missing judge might have swung the balance. Indeed, in this case, the missing judge would have changed the result from a majority to a tie.

- I don't know if it's true to say that there's no ratio. According to Wakim (1999, at [100]), this decision binds 'other courts in Australia to arrive at a like result on the issues it dealt with' but 'it establishe[s] no principle or precedent having authority in' the High Court. Translating that, I think that means that lower courts must now regard s471.12 as valid. But if someone wants to bring a High Court challenge to s471.12, they don't have the burden of convincing the High Court that it's OK to overturn one of its own decisions.

- one perversity of all of this is that, if Monis and Droudis had got their original trial 'removed' into the HCA before their conviction (instead of appeal after their conviction) and got the exact same 3-3 split, then they wouldn't have been convicted, because that would have been governed by s23(2)(b), and the Chief was on their side.

- the court also split on the meaning of 'offensive' in 471.12, with the, um, plurality holding that it actually meant 'seriously' offensive, and the, um, losers saying that it didn't. It's not entirely clear to me whether the plurality's interpretation is part of the ratio of the case, given that, as you say, the defendants just challenged the validity of the law, not its interpretation to them. Maybe it's the NSWCCA's interpertation that is now binding, except that non-NSW courts can disagree if they consider it manifestly wrong? Who knows?

Kyle said...

Hi Jeremy. This was a joint effort, though blogger doesn't allow us to show that. I added in the material about the precedent value — or lack of — based on my learnings from Alisatiar MacAdam and John Pyke. They wrote a very interesting book, 'Judicial Reasoning and the Doctrine of Precedent in Australia'. (I think it still has no equivalent — unlike books on, say, torts or statutory interpretation.)

The point they were making was that when there's no agreement among a court (such as in Momcilovic), or in this case with an even split, there's no unanimous or majority reason for the outcome. So, the rule "posting-letters-to-parents-of-military-members-saying-provocative-things-about-their-children-is-offensively-criminal" is valid and binding on other courts. But there is no reason for the outcome (other than 'because') that other courts can understand, follow, apply, and interpret in new or analogous situations because of the absence of a discernible ratio.

I reckon they're right. No doubt your library has a copy of their book? If it does, have a look at pages 203 - 208. I'd be interested to read your thoughts. (As always.)

Jeremy Gans said...

Haven't looked at the book yet, but some thoughts for now. The approach you describe makes sense: a divided court doesn't offer reasons, just a result that binds the parties. The difficulty I have, though, is how that works when a court's ruling is necessarily dependent on a finding that a particular law exists or not.

Monis & Droudis's conviction couldn't stand if 471.12 isn't an offence known to law. I struggle with the idea that the HCA case only stands for the idea that 471.12 exists between Monis, Droudis & the DPP. To my mind, there's a difference between the existence of a statute and the existence, say, of a breach of duty or an obligation to pay a debt, which are just things between parties. Maybe I'm being too narrow in my thinking?

As well, it seems to me that a majority of the court did agree on a particular effect of the constitution: that a law that barred offensive mail, without a qualifier that the offence be serious, would be unconstitutional. For French & Hayne, this is necessary to their (losing) order that the law was invalid. For Crennan, Kiefel and Bell, this was a major reason why they read 471.12 as limited to seriously offensive conduct. (Heydon's trickier, but there's a majority without him.) Why would this majority take on the Constitution only be binding between Monis, Droudis & the DPP? Sure, the five judges split on its application to 471.12's interpretation, but it was still a necessary part of each judge's final order, wasn't it? (As well, isn't it at least 'seriously considered dicta by a majority of the court', which apparently is also binding on lower courts.)

Finally, there's the question of interpretation of 47.12, which is where there is no majority view. But even then, the combination of the above two things - the validity of 471.12, which is a necessary implication of the dismissal of the appeal, and the view of what would not pass constitutional muster - surely means that 471.12 must be limited to serious offence?

Jeremy Gans said...

OK, I've looked at the book now. Great book!

In the passages you refer me to, there is indeed an excellent discussion of how to extract a ratio from multiple judgments, with the gravamen being, whatever you call it, lower courts are barred from reasoning in a way that would render the outcome of the HCA case incorrect. So, surely a lower court could not now rule that 417.12 is invalid?

However, there is also a separate discussion of equally divided HCA judgments at [9.25]-[9.28]. That notes, as I did, that the HCA's own pronouncements only address whether the HCA itself is bound by such decisions in any way (answer: no.). But what about lower courts. There are two conflicting lower court rulings on this: Mahoney says you should strive to be consistent; Pincus says you can pick and choose. The author is dubious of Mahoney but only if the split was on a 'single issue'.

What isn't clear is whether Monis is a single issue case (is the whole offence valid or not?) or a double issue (what's the offence mean and, given that, is it valid?) If the latter, I'd argue that consistency would at least bar a reading of the offence as both extending to non-serious offense and valid. If you combine this with the bar on a ruling that contradicts the HCA result (i.e. by holding the statute invalid), surely that means that courts must read the offence is only covering serious offense.

As well, the book briefly addresses the issue raised in Monis of the precedent value of the decision under appeal. The author is skeptical of claims that the decision below remains a precedent, but admits that there's no clear argument either way. Interestingly, the perversity of different results flowing from an appeal vs original jurisidiction application has happened before. In R v Gray (ex p Marsh), the court was divided on a judicial review application, so the decision went with the chief, who upheld the application. But the decision under review was actually a federal court decision, which can usually be appealed to the HCA (but not in this case for some reason); if that had happened, the lower decision would have been upheld. Crazy stuff.

@Diabologue said...

Hi, on the point regarding removal of the trial to the HCA before conviction cf their appeal after conviction, maybe I am missing something ... I thought Monis and Droudis challenged the validity of the Code provisions before there was any trial? So the effect of the HC's split judgment is simply that the legislation has been declared constitutionally valid and the trial(s) can now proceed. Though maybe I have misunderstood ... Have Monis and Droudis been convicted of anything yet?

Jeremy Gans said...


Jeremy Gans said...

You're right @diabologue. My mistake. They haven't been convicted. They just opted to challenge the validity of 417.12 in the District Court (and then proceed by appeal to the HCA), rather than seeking a removal to the HCA from the get-go. (By contrast, Keating v DPP, the challenge to the retrospective post-(or is that pre-?) Poniatowska statute is a removal from the Magistrates' Court.) If Monis and Droudis and gone for a removal and go the same six judges, then they wouldn't be facing any charges under 417.12 right now. I think my arguments about the precedential value of the HCA judgment (such as they are) still stand.

But there's now the delicious possibility that Monis and Droudis, if convicted, will appeal their conviction on the ground that 417.12 is invalid. They'll necessarily lose in the NSWCCA (at least on my analysis, but anyway) but the legal situation facing the HCA will be no different to what it was when Monis and Droudis sought special leave to appeal this time round. (Well, I guess Monis and Droudis won't be convicted (and perhaps under sentence), rather than merely charged, and there might be some other appeal grounds floating around too.) But surely the HCA will grant special leave again? Of course, the composition of the court will be different.