Snail mail litigation leads way on free speech
Illustration: Simon Letch
It's a free screechy sort of world. The din is so deafening that it's hard to hear what is being said - assuming it's worth hearing.
Everyone has their own little megaphone and when herded together the noise can be louder than the racket from the most strident demagogue or shock jock in earshot. Now the law is being asked to step in and draw some lines in the sand, or on the wall, or in the cloud, or somewhere.
In England the Department of Public Prosecution and a bunch of ''stakeholders'' - lawyers, journalists, police - are trying to come up with guidelines as to what constitutes ''offensive'' communications on open or social media networks.
In our own lively backyard, the NSW Attorney-General, Greg Smith, has commissioned a ''working group'' to examine the impact of social media on the sanctity of the criminal trial process and what can be done about it.
These are examples of authorities flailing about and trying to look as though they are doing something. Whatever emerges by way of worthy recommendations, it is unlikely that this genie is going to get back in its bottle.
In Canberra, our High Court is being asked to decide where the freedom to speak stops, particularly when it comes to the implied, but not enshrined, constitutional right of free speech on matters of government and politics.
For instance, does a person in breach of a council bylaw have a right to preach fire and brimstone god-bothering sermons on the street, to the annoyance of shopkeepers and shoppers?
Even more ''out there'', does the constitutional protection extend to someone, who in defiance of the criminal law, sent offensive and distressing messages through the mail to the relatives of Australian soldiers who have been killed in Afghanistan?
These are two actual cases heard this month by the same bench of the High Court (French CJ, along with justices Hayne, Heydon, Crennan, Kiefel and Bell). The decisions in both are reserved.
In the offensive letters case radical Muslim cleric Man Haron Monis was charged with using the postal service in a way that could be regarded as offensive and harassing within the criminal code. In this instance it may have been difficult to glean the precise meaning of the letters but there was the suggestion that the dead soldiers were murderers. Amirah Droudis was charged with aiding and abetting.
Apart from the relatives of dead Australian Defence Force personnel, letters were also received by the relatives of an Austrade official who had been killed in the bombing of the Marriott Hotel in Jakarta on July 17, 2009.
There was lots of argument around what constitutes offensiveness. In its submission the Commonwealth said the mail could have provoked retaliation, including ''civil commotion or riot''.
David Bennett, QC, for Droudis, said ''it is very easy to discard what one doesn't want to read''. In that sense he was suggesting that not reading the letters was akin to turning off the radio if Alan Jones got on your wick.
But are these distressing letters on political matters constitutionally protected or, put another way, did this part of the criminal law dealing with offensive articles in the post exceed the legislative power of the Parliament because it infringed the implied right of free speech?
The trial judge thought the legislation did burden the freedom of communication about government or politics, but that it was nonetheless reasonably appropriate. The Court of Criminal Appeal basically agreed.
Now it's the High Court's turn, and it has the last say.
The Adelaide preachers Caleb and Samuel Corneloup have had a better run in the courts so far. An Adelaide City bylaw was used to stop the brothers Corneloup proselytising in a loud and aggressive manner in Rundle Mall. No one in Adelaide is allowed on the streets to ''preach, canvass or harangue'' without a permit.
The Corneloups won in the South Australian District Court, and the City of Adelaide lost an appeal in August last year, when the full Supreme Court found the bylaw was inconsistent with the implied constitutional freedom of political communication. The preaching, it appears, contained a good dose of political content. Again, the High Court will have the last word on whether the bylaw is an unreasonable burden on free speech.
What is refreshing is that these two cases, which are at the forefront of a free speech advance party, don't involve the new media. The ''champions'' are users of snail mail and street corners. How fitting it is that these overlooked communication devices are at the cutting edge of free speech jurisprudence.
Justice Michael Kirby has been relatively quiet since leaving the High Court but he was momentarily revived in the course of this bout of litigation. Here he is in an earlier free speech case. He's worth quoting at a little length because he rings a few bells for me:
''One might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion. They are part and parcel of the struggle of ideas.
''Anyone in doubt should listen for an hour or two to the broadcasts that bring debates of the Federal Parliament to the living rooms of the nation. This is the way present and potential elected representatives have long campaigned in Australia for the votes of constituents and the support of their policies. It is unlikely to change.
''By protecting from legislative burdens governmental and political communications in Australia, the constitution addresses the nation's representative government as it is practised. It does not protect only the whispered civilities of intellectual discourse.''
Correction: The original version of this article incorrectly said Man Haron Monis had been found guilty of using the postal service to cause offence and to menace and harass the families of Australian soldiers killed in Afghanistan. In fact, Mr Monis has not faced a trial and is seeking to have the High Court quash charges that he used the postal service to cause offence, on the grounds the charges are invalid under the constitution.