December 16, 2019

High Court undecided on freedom of political communication

MARK COLVIN: Australia's High Court has split right down the middle in deciding whether a case against a man accused of sending hate mail to the families of dead Australian soldiers should stand. Because of the even split, a lower court's decision is unchanged and the appeal has been dismissed.

What this means is Man Horan Monis, who's accused of sending offensive letters to the families, is now expected to have to defend himself against the charges in a trial.

Martin Cuddihy reports.

MARTIN CUDDIHY: It's a case that asks, what is the implied freedom of political communication in Australia?

In April 2011, Man Haron Monis was charged with 13 different offences - most relating to using the postal system in an offensive manner. In essence, he's accused of sending hate mail to the families of soldiers who died serving their country. The letters opened with condolences but went on to criticise Australia's involvement in Afghanistan and condemn those who died.

The accused's lawyer is Hugo Aston.

HUGO ASTON: Well obviously, he's extremely disappointed. It was a 50/50 split and it falls obviously to be dismissed.

MARTIN CUDDIHY: And it couldn't be closer without being in your favour.

HUGO ASTON: Exactly.

MARTIN CUDDIHY: Three judges, including Chief Justice Robert French, agreed the law under which the pair was charged is not valid and is at odds with the Constitution. But three other judges dismissed the appeal, finding the law protects the community from such communications.

It's the first time there's been an even split on the High Court since 1998.

Professor Simon Rice is from the law faculty at ANU.

SIMON RICE: What's interesting is that the court split because unusually there were only six judges and they split three/three and they disagreed.

You've got three judges who say that the law against sending certain things in the post is a reasonable constraint of free political communication if it's offensive. And you've got three judges saying that it's not a reasonable constraint.

MARTIN CUDDIHY: The lawyers for Monis and for Amirah Droudis, who was charged with aiding and abetting, had argued the charges breached the implied constitutional right to freedom of political speech.

Hugo Aston says he was prepared for the decision.

HUGO ASTON: Not surprised, no. Look it's just the way the cards have fallen and obviously three justices say we're in favour and three weren't and there it is.

MARTIN CUDDIHY: In the end, the appeal was lost because the law states that when the High Court is evenly split the original ruling should stand.

Constitutional lawyer Professor Adrienne Stone from the University of Melbourne is considered one of Australia's most astute experts in this field.

ADRIENNE STONE: It's not desirable. It would have been much preferable to have a case like this heard by seven judges. What I would say, however, is that the case now really stands as authority only for resolving the particular facts before it and much is left undecided.

In saying that, I think there are two visions of freedom of expression that are competing for ascendency in the High Court. One is highly protective of offensive expression and one which is less so, and this decision leaves it absolutely on a knife-edge as to which will prevail.

MATIN CUDDIHY: How do you weigh up robust political debate and civility? Where should the legal emphasis lie?

ADRIENNE STONE: Well according to three judges, they would take the view that it's so important to protect the political discussion in Australia that we ought to actually accept that offensive discussion is protected even if it's extremely hurtful.

But three judges offered a different view. They took the view that it was appropriate to upload this law, but only because it was seriously limited. It only applies to the most offensive kind of expression and expression that, through the post, intrudes into a person's home.

So I think those judges would probably take the view that political communication is extremely important, but it can be subject to certain kinds of limits.

MARTIN CUDDIHY: It's a case that has already drawn comparisons with the offensive and outspoken independent Westboro Baptist Church in the United States.

WESTBORO BAPTIST CHURCH MEMBER I: God hates America and all of our military.

WESTBORO BAPTIST CHURCH MEMBER II: It's God's curse against a nation awash in sin.

MARTIN CUDDIHY: Professor Adrienne Stone again.

ADRIENNE STONE: This case is somewhat different because it involves letter writing, but in a way that's somewhat similar. The letters that were the subject of these proceedings were written to the relatives of soldiers, Australian soldiers who died in Afghanistan and they expressed political opposition to that war, but they also directed insults at the dead soldiers, including accusations that the soldiers were murderers and in some cases a comparison to Hitler.

MARK COLVIN: Constitutional lawyer, Professor Adrienne Stone talking to Martin Cuddihy.


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Hugo Aston

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