Citation: R v Monis; R v Droudis [2011] NSWDC 39
Court: District Court of New South Wales
Date: 18 April 2011
Judge(s): Tupman DCJ
Background
Two accused were charged jointly on 21 counts under s 471.12 of the Criminal Code Act 1995 (Cth), which prohibits using a postal service in a way that reasonable persons would regard as menacing, harassing, or offensive. The first accused faced 13 counts relating to letters he sent to relatives of Australian Defence Force members killed in Afghanistan and to relatives of an Austrade official killed in the 2009 Jakarta Marriott Hotel bombing. The second accused faced 8 counts of aiding and abetting the sending of 8 of those letters.
The letters commented on what the authors characterised as unlawful wars in Iraq and Afghanistan, and copies were sent to political figures including the Prime Minister, the Leader of the Opposition, and the Defence Minister. Before trial commenced, both accused moved to quash the indictment on the ground that s 471.12 was constitutionally invalid.
The accused had previously attempted, without success, to have the proceedings removed to the High Court for determination of the constitutional question. The matter therefore came before the District Court for resolution of the notices of motion.
Legal Issues
- Whether s 471.12 of the Criminal Code Act 1995 (Cth), which prohibits use of a postal service in an offensive or harassing manner, infringes the implied constitutional freedom of political communication
- Whether the correspondence the subject of the charges was, at least broadly, capable of constituting communication about governmental or political matters
- Whether the terms "offensive" and "harassing" in s 471.12 should be construed narrowly enough to preserve constitutional validity
- Whether, applying the two-limb test from Lange v Australian Broadcasting Corporation (1997), the provision was reasonably appropriate and adapted to serve a legitimate legislative purpose compatible with the system of government prescribed by the Constitution
Decision
Her Honour first considered whether the correspondence was capable of being characterised as political or governmental communication. Despite the Crown's argument that the letters amounted to personal offence rather than genuine political discourse, Tupman DCJ accepted that the correspondence, assessed broadly, was capable of falling within the category of communications concerning governmental or political affairs. Each letter referenced the alleged unlawfulness of the war in Afghanistan, and many were copied to senior political figures, giving them the character of a political campaign in a broad sense.
On the first Lange limb, the court accepted that s 471.12 is capable of burdening freedom of communication about governmental or political matters.
On the second limb, the court examined the legitimate purpose of the provision and how far it burdened the implied freedom. The provision sits within the National Infrastructure chapter of the Code, directed at protecting the integrity of postal services. Critically, the court emphasised that the phrase "that reasonable persons would regard as being, in all the circumstances" significantly qualifies the terms "offensive" and "harassing." That qualifier requires a tribunal of fact to assess context, including the identity and circumstances of recipients, the accused's state of mind, contemporary political debate, and prevailing community values about robust democratic discourse. The court also noted the provision was enacted after Lange, supporting an inference that the legislature did not intend it to capture genuinely political communications.
Having considered these factors, Tupman DCJ concluded that s 471.12, even though capable of burdening political communication, is nonetheless reasonably appropriate and adapted to serve a legitimate legislative end in a manner compatible with the constitutionally prescribed system of government. The notices of motion were dismissed.
Orders Made
- The notices of motion seeking to quash the indictment were dismissed.
Key Takeaways
- The District Court held that s 471.12 of the Criminal Code Act 1995 (Cth), prohibiting use of postal services in an offensive or harassing manner, is constitutionally valid despite being capable of burdening freedom of communication about governmental or political matters.
- Applying the two-limb Lange test, a law may validly burden political communication where it is reasonably appropriate and adapted to serve a legitimate end compatible with the maintenance of constitutional government.
- The qualifying phrase "that reasonable persons would regard as being, in all the circumstances" plays a significant role: it limits the reach of the provision and requires context-sensitive assessment by the tribunal of fact, including the nature of the communication, the circumstances of the parties, and the broader political environment.
- Correspondence that references the alleged unlawfulness of a war and is copied to political figures may, assessed broadly, be capable of constituting communication about governmental or political affairs, even if some individual content could be characterised differently.
- No Attorney-General of the Commonwealth, any State, or any Territory intervened, despite the required notices under s 78B of the Judiciary Act 1903 (Cth) having been properly served.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), s 471.12
- Judiciary Act 1903 (Cth), s 78B
- Post and Telegraph Act 1901 (Cth)
- Postal Services Act 1975 (Cth)
- Summary Offences Act 1988 (NSW)
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)
- Evidence Act 1995 (NSW)
- Family Law Act 1975 (Cth)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Jury Act 1977 (NSW)
- Freedom of Information Act 1982 (Cth)
Cases:
- Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
- Coleman v Power (2004) 220 CLR 1
- Hogan v Hinch [2011] HCA 4
- Evans v State of New South Wales [2008] FCAFC 130
- Bropho v HREOC (2004) 135 FCR 105
- Spence v Loguch BC9101434 NSWSC
- Malvern v Bradbury (1971) 17 FLR 345