Arts Copyright

Testing the implied freedom of political communication which has been read into s128 of the Constitution.

http://www.austlii.edu.au/au/cases/cth/HCA/2013/4.html

The appellant had mailed documents to relatives of deceased troops that disputed the validity of governments involvement in the war in Afghanistan and blamed the government for the deaths. 

Hayne J [78] "in form, each communication offered condolences to the relatives of the deceased but, in intemperate and extravagant language, each also urged the rejection of the policies which see Australian forces engaged in Afghanistan. At least some of the communications directly insulted those who had died."

Prosecuted under provision 471.12 of the Criminal Code(Cth) that the mail system isn't to be used for 'offensive' purposes.

'Offensive' had to be decided using the reasonable person test. French CJ said of this,

"reasonable persons would accept that unreasonable, strident, hurtful and highly offensive communications fall within the range of what occurs in what is sometimes euphemistically termed "robust" debate."

When deciding whether a law has infringed the implied freedom, the questions to be asked are:

Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?

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 Constitutionfor submitting a proposed amendment to the Constitution to the informed decision of the people?

Held to have infringed the implied freedom without legitimate end. French CJ:

[71] Given the scope of the criminal liability created by s 471.12 in its application to offensive uses of postal or similar services, the section must be taken to effectively burden freedom of communication about government or political matters in its operation or effect.

Relief/ Orders: All but one charge quashed. 

Hayne J at [233] "Accordingly there should be orders that each appeal to this Court is allowed. The orders of the Court of Criminal Appeal should be set aside and in their place there should be orders that (a) each appeal to that Court is allowed and (b) the orders of the District Court of New South Wales are set aside and in their place there is an order that the whole of the indictment preferred against Man Haron Monis and Amirah Droudis, except for the charge numbered 3 charging Man Haron Monis with using a postal service in a way that reasonable persons would regard as being, in all the circumstances, harassing, is quashed."

FRENCH CJ,

HAYNE, HEYDON, Majority

CRENNAN, KIEFEL AND BELL JJ in Dissent