AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 6 December 2011

MONIS, Man Haron v R; DROUDIS, Amirah v R

[2011] NSWCCA 231

Public order & justice offences
CONSTITUTIONAL LAW S 471.12 CRIMINAL CODE MEANING OF "OFFENSIVE"

Citation: MONIS, Man Haron v R; DROUDIS, Amirah v R [2011] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 6 December 2011
Judge(s): Bathurst CJ at [1]; Allsop P at [70]; McClellan CJ at CL at [93]

Background

The first appellant was charged with 12 counts of using a postal service in a way that a reasonable person would regard as offensive, and one count of using a postal service in a harassing way, contrary to s 471.12 of the Criminal Code 1995 (Cth). The second appellant was charged with eight counts of aiding and abetting those offences. The charges arose from letters allegedly sent to the wives and relatives of Australian soldiers killed in Afghanistan, with copies sent to senior politicians including the Prime Minister and the Minister for Defence. The letters were critical of Australia's military involvement in Afghanistan and, on the findings of the court below, referred to the deceased soldiers in a denigrating and derogatory fashion.

Both appellants moved the District Court to quash the indictments on the basis that s 471.12 infringed the implied constitutional freedom of political communication. The District Court dismissed both motions, and the appellants were granted certificates for appeal to the Court of Criminal Appeal. During the appeal, the challenge to the harassment charge was abandoned.

  • Whether s 471.12 of the Criminal Code 1995 (Cth) infringes the implied freedom of political communication guaranteed by the Commonwealth Constitution.
  • What the correct construction of the word "offensive" in s 471.12 is, and whether that construction affects the constitutional analysis.
  • Whether, applying the two-step test from Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (as modified in Coleman v Power (2004) 220 CLR 1), the section burdens political communication, and if so, whether it is reasonably appropriate and adapted to serve a legitimate end compatible with the constitutionally prescribed system of government.
  • Whether the constitutional validity of the section must be assessed by reference to the content of the particular communications at issue, or assessed on the face of the legislation itself.

Decision

The Court of Criminal Appeal unanimously upheld the District Court's decision, dismissing both appeals. All three judges agreed that s 471.12, properly construed, does not infringe the implied freedom of political communication, though each delivered separate reasons.

On the construction of "offensive", the Court affirmed the District Court's approach. The word requires more than mere hurt feelings, vexation, or displeasure. To be "offensive" within the section, the use of the postal service must be of a kind that reasonable persons would regard as seriously or grossly offensive, taking all circumstances into account. This objective, qualified standard was considered central to the constitutional analysis.

Applying the Lange test, the Court accepted that s 471.12 does burden freedom of communication about governmental or political matters to some degree. However, all three judges were satisfied that the section is reasonably appropriate and adapted to serve legitimate ends compatible with the maintenance of the constitutionally prescribed system of government. Those ends include protecting recipients from harm caused by seriously offensive postal communications and maintaining public confidence in the postal service. The Court noted that any burden on political communication was indirect and incidental, and that the "reasonable persons in all the circumstances" qualifier in the section preserved adequate latitude for robust political debate.

The Court also addressed whether the constitutional analysis required examination of the actual letters. The majority view was that the validity of s 471.12 falls to be assessed on its face and by reference to the range of conduct it covers, not by reference to the particular communications alleged in the charges. Whether any specific communication amounts to an offence under the section is a question for the jury at trial.

Orders Made

• The court agrees with the orders proposed by the Chief Justice.

Key Takeaways

  • Section 471.12 of the Criminal Code 1995 (Cth) is constitutionally valid. The Court of Criminal Appeal unanimously held it does not infringe the implied freedom of political communication.
  • The word "offensive" in s 471.12 carries a high threshold: the conduct must be such that reasonable persons would regard it as seriously or grossly offensive in all the circumstances. Mere hurt feelings, annoyance, or displeasure does not suffice.
  • Applying the Lange test (as modified by Coleman v Power), the section does burden political communication to some degree, but that burden is indirect and incidental. The provision is reasonably appropriate and adapted to serve legitimate legislative ends compatible with the system of representative and responsible government prescribed by the Constitution.
  • The "reasonable persons in all the circumstances" qualifier within s 471.12 performs a significant constitutional function: it incorporates an awareness of the accepted latitude for robust political debate in Australia, and thus limits the reach of the offence.
  • Constitutional validity of a statutory provision is assessed by reference to the range of conduct the law covers, not by reference to the character or content of the specific communications alleged in a particular prosecution. That latter question is one for the jury.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 470, 471, 471.12
- Criminal Appeal Act 1912 (NSW)
- Acts Interpretation Act 1901 (Cth), s 15A
- Summary Offences Act 1988 (NSW)
- Customs Act 1901 (Cth)

Cases:
- Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
- Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
- APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322
- Hogan v Hinch [2011] HCA 44; (2011) 85 ALJR 398
- Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2) [1992] HCA 45; (1992) 177 CLR 106
- Nationwide News Pty Ltd v Wills [1992] HCA 46; 177 CLR 1
- Levy v State of Victoria [1997] HCA 32; (1997) 189 CLR 579
- Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181
- Cunliffe v The Commonwealth of Australia [1994] HCA 44; (1994) 182 CLR 272
- Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
- Holland v The Queen [2005] WASCA 140