By Boxun Yin -
In Monis v The Queen  HCA 4, the High Court of Australia considered the unique Australian doctrine of “implied freedom of political communication”. As Australia lacks a statutory or constitutional bill of rights, it is relatively rare for the High Court to be confronted with human rights questions. This was one of those occasions.
The appellants in Monis were alleged to have contravened s 471.12 of the Criminal Code (Cth) by posting letters to relatives of Australian soldiers killed in action in Afghanistan. These letters not only criticised the involvement of the Australian military in Afghanistan; they also referred to deceased soldiers as being (among other things) murderers of civilians, contaminated and having “the dirty body of a pig”.
Section 471.12 criminalises the use of “a postal or similar service … in a way … that reasonable persons would regard as being, in all the circumstances, … offensive”. At issue was whether this section contravened the freedom of political communication implied into Australia’s Constitution by a line of cases commencing with ACTV v Commonwealth (1992) 177 CLR 106 on the basis that it is an indispensable incident of the system of representative government created by the Constitution. A law would contravene the implied freedom if (1) it effectively burdened freedom of communication about government or political matters; and (2) it was not 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 government: Lange v ABC (1997) 189 CLR 520 as modified in Coleman v Power (2004) 220 CLR 1.
The Court split 3-3: the plurality of Crennan, Kiefel and Bell JJ held that s 471.12 was valid, while the minority of French CJ, Hayne and Heydon JJ (each of whom delivered separate judgments) held that it was invalid. Since the Court was evenly split, the decision of the court below – the Court of Criminal Appeal of New South Wales – was affirmed.
The critical matter which split the Court was what constituted a “legitimate end”.
The plurality characterised the end as the individual’s interest to be free from intrusion of seriously offensive material into his or her personal domain. They viewed this to be an aspect of individual liberty, an end compatible with the constitutionally prescribed system of representative government.
The dissenting judges, however, characterised the end as the prevention of the use of postal or similar services which reasonable persons would regard as offensive. Hayne J held that the end had to be identified by the ordinary processes of statutory construction. However, it was not clear why such a process led to such a narrow conclusion. He simply said that the end “must be framed in limited terms”. French CJ (Heydon J agreeing) was even more sparse on this point. He stated that broader considerations of promoting or protecting postal services, the integrity of the post and public confidence in the post “do not define in any meaningful way a legitimate end served by s 471.12″, before concluding simply that the purpose was “properly described” in the limited way set out above. By characterising the end so narrowly, the dissenting judges left little room for questions of legitimacy or proportionality to operate: the question of validity fell at the first hurdle.
The even split of the Court, along with the paucity of reasoning, means that Monis is highly unsatisfactory. In addition, Heydon J effectively invited a challenge to the very existence of the doctrine of freedom of political communication, declaring it to be “a noble and idealistic enterprise which has failed, is failing, and will go on failing”. His retirement, along with the swearing in of two new Justices – Gageler and Keane JJ – might well provide the opportunity to reconsider not only the more limited questions of characterising the “legitimate end”, but, potentially, the very existence of the doctrine itself.
Boxun Yin is currently reading for the BCL at St Hugh’s College, Oxford