HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJPATRICK JOHN COLEMAN APPELLANT
AND
BRENDAN JASON POWER & ORS RESPONDENTS
Coleman v Power
[2004] HCA 39
1 September 2004
B98/2002ORDER
1. Appeal allowed.
2. So much of the order of the Court of Appeal of Queensland made on 30 November 2001 as deals with the order of Pack DCJ in the District Court of Queensland dated 26 February 2001 is varied by substituting the following:
The orders of Pack DCJ dated 26 February 2001 are set aside and in lieu thereof it is ordered that:
(a)the appeals to the District Court are allowed in respect of the convictions recorded in respect of the charges laid under s 7(1)(d) and s 7A(1)(c) of the Vagrants, Gaming and Other Offences Act 1931 (Q) and the convictions and sentences in respect of those charges are set aside;
(b)the appeals to the District Court are otherwise dismissed; and
(c)the respondents pay the appellant one half of the appellant's costs of and incidental to the appeals, those costs to be assessed.
3. Respondents to pay the appellant's costs in this Court.
On appeal from Supreme Court of Queensland
Representation:
W P Lowe with A D R Gibbons for the appellant (instructed by Patricia White & Associates)
G J Gibson QC with P J Davis for the first and second respondents (instructed by Queensland Police Service Solicitor)
P A Keane QC, Solicitor-General of the State of Queensland, with G R Cooper for the third respondent (instructed by Crown Solicitor for the State of Queensland)
D M J Bennett QC, Solicitor-General of the Commonwealth, with R G McHugh and B D O'Donnell intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales, with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia, with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Coleman v Power
Statutes – Acts of Parliament – Interpretation – Meaning of "threatening, abusive and insulting words" under Vagrants, Gaming and Other Offences Act 1931 (Q) ("Vagrants Act"), s 7(1)(d) – Where appellant arrested for using insulting words to a person in a public place contrary to s 7(1)(d) – Whether "insulting words" must be reasonably likely to provoke physical retaliation.
Statutes – Acts of Parliament – Interpretation – Whether, if Vagrants Act s 7(1)(d) invalid, appellant's arrest was lawfully authorised by the Police Powers and Responsibilities Act 1997 (Q) ("Police Powers Act"), s 35(1) – Whether convictions for obstructing and assaulting police are valid.
Statutes – Acts of Parliament – Construction and interpretation – Relevance of international obligations assumed by the Commonwealth after enactment of State statute – Whether State Acts to be interpreted to be consistent with international law of human rights and fundamental freedoms.
Constitutional law (Cth) – Implied freedom of communication about government or political matters – Whether Vagrants Act, s 7(1)(d) effectively burdened freedom of communication about government or political matters – Whether s 7(1)(d) 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 – Whether s 7(1)(d) invalid to the extent that it penalised persons using insulting words where those words had a political content or purpose and the penalty constituted a burden on the freedom of political communication.
Constitutional law (Cth) – Implied freedom of communication about government or political matters – Whether Police Powers Act, s 35(1) invalid to the extent that it seeks to make lawful the arrest of a person on a charge under Vagrants Act, s 7(1)(d) for uttering insulting words in the course of making statements concerning political and governmental matters.
Words and Phrases – "insult", "insulting", "threatening, abusive and insulting words", "to any person", "public place".
Acts Interpretation Act 1954 (Q), ss 9, 14B.
Criminal Code (Q), ss 23(2), 340(b).
Police Powers and Responsibilities Act 1997 (Q), ss 35(1), 38, 120.
Vagrants, Gaming and Other Offences Act 1931 (Q), ss 7(1)(d), 7A(1)(a), 7A(1)(c).
GLEESON CJ. The appellant was protesting in Townsville. He was distributing pamphlets which contained charges of corruption against several police officers, including the first respondent. The first respondent approached the appellant and asked to see a pamphlet. The appellant pushed the first respondent, and said loudly: "This is Constable Brendan Power, a corrupt police officer". The magistrate who dealt with the case said that the appellant was not protesting against any laws or government policies, but was conducting a "personal campaign related to particular officers of the Townsville Police". Although there was a dispute as to the precise sequence of events, the prosecution case against the appellant, which was substantially accepted by the magistrate, was that the pushing and the verbal insult were intended to provoke an arrest. They did so.
The appellant was convicted of the offence of using insulting words to the first respondent in a public place. The primary issue in the appeal is whether he was rightly convicted. The appellant contends that the legislation creating the offence is invalid, as an unconstitutional restriction on freedom of speech.
The first step is to construe the statutory language creating the offence of using insulting words to a person in a public place. In that respect, both the legislative context and the statutory history are important. The Vagrants, Gaming and Other Offences Act 1931 (Q) ("the Vagrants Act") created a number of what are sometimes called "public order offences"[1]. Legislation of this general kind is familiar in the United Kingdom, in all Australian jurisdictions, and in New Zealand. The immediate context of the expression "insulting words" is s 7 of the Vagrants Act, which provides[2]:
[1] For an account of the history of public order legislation in common law jurisdictions, see Brown, Farrier, Neal and Weisbrot, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales, 3rd ed (2001), ch 8.
[2]Section 7, which is the legislation applicable to the events the subject of the present appeal, was omitted from the Vagrants Act and replaced by a different provision after argument in this appeal. The amending legislation is contained in Act No 92 of 2003 (Q). It is convenient, however, to speak of s 7, in its application to this appeal, in the present tense.
"7 (1) Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear–
(a) sings any obscene song or ballad;
(b)writes or draws any indecent or obscene word, figure, or representation;
(c)uses any profane, indecent, or obscene language;
(d)uses any threatening, abusive, or insulting words to any person;
(e)behaves in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner;
shall be liable to a penalty of $100 or to imprisonment for 6 months ... ."
The words the subject of s 7(1)(d) must be used to, and not merely about, a person, and they must be used in a public place or in circumstances where they could be heard from a public place. Section 7 protects various aspects of public order, ranging from decency to security.
There is no reason to doubt that "insulting" has the same meaning in pars (d) and (e). Those two paragraphs deal separately with a subject that had previously been dealt with compendiously, that is to say, insulting words and behaviour. Section 7 of the Vagrants Act replaced s 6 of the Vagrant Act 1851 (Q). That section prohibited the using of threatening, abusive or insulting words or behaviour in any public street, thoroughfare or place with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. The omission of the element relating to a breach of the peace, in the 1931 Act, was plainly deliberate. Furthermore, the 1931 Act, in s 7(1)(e), expanded the kinds of behaviour that were prohibited. It continued to include threatening or insulting behaviour, but it also included, for example, disorderly, indecent, or offensive behaviour, which might involve no threat of a breach of the peace but which was nevertheless regarded by Parliament as contrary to good order.
The legislative changes in Queensland in 1931 were similar to changes in New Zealand in 1927. In New Zealand, the Police Offences Act 1884 (NZ) made it an offence to use any threatening, abusive or insulting words or behaviour in any public place within the hearing or in the view of passers by, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. By legislation in 1927, the provision was altered by omitting any reference to a breach of the peace, and by expanding the description of the prohibited conduct to cover behaving in a riotous, offensive, threatening, insulting or disorderly manner, or using threatening, abusive or insulting words, or striking or fighting with any other person.
The New Zealand courts, in considering the effect of the 1927 amendments, attached importance to the decision of the legislature to delete the reference to breaches of the peace, and to expand the range of prohibited behaviour. In Police v Christie[3], Henry J held that, to support a charge of disorderly behaviour, it was not necessary to show that the conduct of the defendant was such as to provoke a breach of the peace or was calculated to do so. He gave two reasons for this. First, the legislature, when re-enacting the provision, excluded the previous reference to breaches of the peace. Secondly, it added to the proscribed conduct forms of behaviour which may not necessarily lead to a breach or a likely breach of the peace[4]. The decision of Henry J was approved by the New Zealand Court of Appeal in Melser v Police[5], another case about disorderly behaviour. The considerations which the New Zealand courts took into account in construing their 1927 legislation apply with equal force to the 1931 Queensland legislation.
[3] [1962] NZLR 1109.
[4] [1962] NZLR 1109 at 1112.
[5] [1967] NZLR 437.
The absence, or elimination, of a requirement concerning breach of the peace is a feature of other legislation on the same topic. Section 59 of the Police Act 1892 (WA) made it an offence to "use any threatening, abusive, or insulting words or behaviour in any public or private place, whether calculated to lead to a breach of the peace, or not". When the Summary Offences Act 1966 (Vic) was enacted, s 17 was expressed in terms substantially the same as s 7 of the Vagrants Act of Queensland. That section replaced ss 26 and 27 of the Police Offences Act 1958 (Vic). Section 26(b) prohibited threatening, abusive and insulting words "with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned". Section 27(b) prohibited threatening, abusive or insulting words without reference to a breach of the peace, but with a lesser penalty[6]. In some jurisdictions, legislation prohibiting insulting words and behaviour in public places includes as an element of the offence a requirement relating to a breach of the peace. In some jurisdictions, no such element is included. And in other jurisdictions, such as Queensland, there was once legislation that included such a requirement, but that legislation has been amended or replaced so that the requirement no longer applies.
[6] cf Inglis v Fish [1961] VR 607; see also Anderson v Kynaston [1924] VLR 214 dealing with the earlier Police Offences Act 1915 (Vic), in which ss 24 and 25 were substantially the same as ss 26 and 27 of the 1958 Act.
It is open to Parliament to form the view that threatening, abusive or insulting speech and behaviour may in some circumstances constitute a serious interference with public order, even where there is no intention, and no realistic possibility, that the person threatened, abused or insulted, or some third person, might respond in such a manner that a breach of the peace will occur. A group of thugs who intimidate or humiliate someone in a public place may possess such an obvious capacity to overpower their victim, or any third person who comes to the aid of the victim, that a forceful response to their conduct is neither intended nor likely. Yet the conduct may seriously disturb public order, and affront community standards of tolerable behaviour. It requires little imagination to think of situations in which, by reason of the characteristics of those who engage in threatening, abusive or insulting behaviour, or the characteristics of those towards whom their conduct is aimed, or the circumstances in which the conduct occurs, there is no possibility of forceful retaliation. A mother who takes her children to play in a park might encounter threats, abuse or insults from some rowdy group. She may be quite unlikely to respond, physically or at all. She may be more likely simply to leave the park. There may be any number of reasons why people who are threatened, abused or insulted do not respond physically. It may be (as with police officers) that they themselves are responsible for keeping the peace. It may be that they are self-disciplined. It may be simply that they are afraid. Depending upon the circumstances, intervention by a third party may also be unlikely.
Violence is not always a likely, or even possible, response to conduct of the kind falling within the terms of s 7(1)(d) of the Vagrants Act. It may be an even less likely response to conduct falling within other parts of s 7. And if violence should occur, it is not necessarily unlawful. Depending upon the circumstances, a forceful response to threatening or insulting words or behaviour may be legitimate on the grounds of self-defence or provocation[7]. Furthermore, at common law, in an appropriate case a citizen in whose presence a breach of the peace is about to be committed has a right to use reasonable force to restrain the breach[8]. I am unable to accept that, when it removed the element of intended or actual breach of the peace in 1931, the legislature nevertheless, by implication, confined the prohibition in s 7(1)(d) to cases where there was an intention to provoke, or a likelihood of provoking, unlawful physical retaliation. That seems to me to be inconsistent with the statutory language, the context, and the legislative history.
[7] The Criminal Code (Q) in s 269 provides a defence of provocation to a charge of assault. Such provocation could arise from insulting words or behaviour.
[8]Albert v Lavin [1982] AC 546 at 565 per Lord Diplock.
That having been said, the removal in 1931 of the requirement concerning a breach of the peace undoubtedly gave rise to a problem of confining the operation of the legislation within reasonable bounds. The New Zealand courts faced this problem in relation to the prohibition of "disorderly" conduct. Having decided that there was no justification for reading into their 1927 Act a requirement of intended or likely breach of the peace, they had to address the issue of the kind of disorder that would justify the imposition of a criminal sanction. In Melser v Police[9], the Court of Appeal declined to give the word "disorderly" its widest meaning. North P referred to a South Australian case[10] which held that "disorderly behaviour" referred to "any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, a street or public place". He went on to say that the words "are directed to conduct which at least is likely to cause a disturbance or annoyance to others"[11]. Turner J pointed out that the disorderly behaviour, like the insulting behaviour, prohibited by the section had to be such as would tend to annoy or insult people sufficiently deeply or seriously to warrant the interference of the criminal law. It was not sufficient that the conduct be indecorous, ill-mannered, or in bad taste. The question, he said, was a matter of degree[12]. McCarthy J pointed out that the law had to take due account of the rights, and freedoms, of citizens. He said that, to be characterised as disorderly, conduct had to be "likely to cause a disturbance or to annoy others considerably"[13].
[9][1967] NZLR 437.
[10]Barrington v Austin [1939] SASR 130.
[11][1967] NZLR 437 at 443.
[12][1967] NZLR 437 at 444.
[13] [1967] NZLR 437 at 446.
Concepts of what is disorderly, or indecent, or offensive, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs. The same is true of insulting behaviour or speech. In the context of legislation imposing criminal sanctions for breaches of public order, which potentially impairs freedom of speech and expression, it would be wrong to attribute to Parliament an intention that any words or conduct that could wound a person's feelings should involve a criminal offence. At the same time, to return to an example given earlier, a group of thugs who, in a public place, threaten, abuse or insult a weak and vulnerable person may be unlikely to provoke any retaliation, but their conduct, nevertheless, may be of a kind that Parliament intended to prohibit.
There is a similar problem in applying the concept of offensive behaviour, which often arises in relation to conduct undertaken in the exercise of political expression and action. In Ball v McIntyre[14], Kerr J considered the conduct of a student who demonstrated against the Vietnam War by hanging a placard on a statue in Canberra. He decided that the behaviour was not offensive within the meaning of the Police Offences Ordinance 1930-1961 (ACT) even though some people may be offended by it. He said[15]:
"The word 'offensive' in [the Ordinance] is to be found with the words 'threatening, abusive and insulting', all words which, in relation to behaviour, carry with them the idea of behaviour likely to arouse significant emotional reaction."
He said that what was involved had to be behaviour that would produce, in the reasonable person, an emotional reaction (such as anger, resentment, disgust or outrage) beyond a reaction that was no more than the consequence of a difference of opinion on a political issue.
[14] (1966) 9 FLR 237.
[15] (1966) 9 FLR 237 at 243.
Section 7(1)(d) covers insulting words intended or likely to provoke a forceful response, whether lawful or unlawful; but it is not limited to that. However, the language in question must be not merely derogatory of the person to whom it is addressed; it must be of such a nature that the use of the language, in the place where it is spoken, to a person of that kind, is contrary to contemporary standards of public good order, and goes beyond what, by those standards, is simply an exercise of freedom to express opinions on controversial issues.
It is impossible to state comprehensively and precisely the circumstances in which the use of defamatory language in a public place will involve such a disturbance of public order, or such an affront to contemporary standards of behaviour, as to constitute the offence of using insulting words to a person. An intention, or likelihood, of provoking violence may be one such circumstance. The deliberate inflicting of serious and public offence or humiliation may be another. Intimidation and bullying may constitute forms of disorder just as serious as the provocation of physical violence. But where there is no threat to the peace, and no victimisation, then the use of personally offensive language in the course of a public statement of opinions on political and governmental issues would not of itself contravene the statute. However, the degree of personal affront involved in the language, and the circumstances, may be significant.
The fact that the person to whom the words in question were used is a police officer may also be relevant, although not necessarily decisive. It may eliminate, for practical purposes, any likelihood of a breach of the peace[16]. It may also negate a context of victimisation. As Glidewell LJ pointed out in Director of Public Prosecutions v Orum[17], it will often happen that "words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom". But police officers are not required to be completely impervious to insult. A public accusation of corruption made about a police officer to his face, even in the context of a political protest or demonstration, is a form of conduct that a magistrate is entitled to regard as a serious contravention of public order by contemporary standards of behaviour. There was no challenge in the Court of Appeal, or, as I followed the argument, in this Court, to that aspect of the magistrate's decision.
[16] Marsh v Arscott (1982) 75 Cr App R 211.
[17] [1989] 1 WLR 88 at 93; [1988] 3 All ER 449 at 451-452.
Before leaving the question of the meaning of s 7 of the Vagrants Act, I should comment upon the proposition that the provisions of international treaties to which Australia is a party, and in particular the International Covenant on Civil and Political Rights ("ICCPR")[18], support a construction which confines s 7(1)(d) to the use of words in circumstances where there is an intention to provoke, or a likelihood of provoking, unlawful physical violence.
[18] Done at New York on 19 December 1966, [1980] Australian Treaty Series No 23.
First, this is not an argument that was put by, or to, counsel during the course of the appeal. We are concerned with the interpretation of a State Act, enacted in 1931. The possibility that its meaning is affected (perhaps changed) by an international obligation undertaken by the Australian Government many years later raises questions of general importance. The Attorney-General of Queensland was a party to the appeal, represented by the Solicitor-General. The Attorneys-General of the Commonwealth and for the States of New South Wales and South Australia intervened. No party or intervener dealt with the possibility in argument.
Secondly, the formulation of a general principle of statutory interpretation by reference to international obligations requires some care. In Chu Kheng Lim v Minister for Immigration, Brennan, Deane and Dawson JJ said[19]:
[19](1992) 176 CLR 1 at 38.
"[C]ourts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty."
The footnote supporting that proposition referred to what was said by Lord Diplock in Garland v British Rail Engineering Ltd[20]:
[20][1983] 2 AC 751 at 771.
"[I]t is a principle of construction of United Kingdom statutes ... that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it." (emphasis added)
In Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J said[21]:
"Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law." (emphasis added) (footnote deleted)
The qualification in that passage is consistent with what Mason CJ had earlier said in Yager v The Queen[22]:
"There is no basis on which the provisions of an international convention can control or influence the meaning of words or expressions used in a statute, unless it appears that the statute was intended to give effect to the convention, in which event it is legitimate to resort to the convention to resolve an ambiguity in the statute."
It is also consistent with what was said later by Dawson J in Kruger v The Commonwealth[23] concerning the principle stated in Teoh:
"Such a construction is not, however, required by the presumption where the obligations arise only under a treaty and the legislation in question was enacted before the treaty, as is the situation in the present case."
The ICCPR was made in 1966, signed by Australia in 1972, and ratified in 1980. The First Optional Protocol came into force in Australia in 1991. The proposition that the ICCPR can control or influence the meaning of an Act of the Queensland Parliament of 1931 is difficult to reconcile with the above statements. In particular, it is difficult to reconcile with the theory that the reason for construing a statute in the light of Australia's international obligations, as stated in Teoh, is that Parliament, prima facie, intends to give effect to Australia's obligations under international law. Of one thing we can be sure: the Queensland Parliament, in 1931, did not intend to give effect to Australia's obligations under the ICCPR.
[21] (1995) 183 CLR 273 at 287.
[22](1977) 139 CLR 28 at 43-44.
[23] (1997) 190 CLR 1 at 71.
Thirdly, we are not in this case concerned with the development of the common law of Australia, or the influence upon such development either of established principles of international law, or of Australia's treaty obligations[24]. This Court is not presently engaged in the task of developing the law of Queensland. Our responsibility is to interpret a Queensland statute. It is for the Parliament of Queensland to develop the statute law of that State.
[24]cf Mabo v Queensland(No 2) (1992) 175 CLR 1 at 42.
Fourthly, s 14B of the Acts Interpretation Act 1954 (Q) provides that consideration may be given to extrinsic material to assist in the interpretation of a statute. Extrinsic material includes "a treaty or other international agreement that is mentioned in the Act"[25]. No relevant treaty or international argument is mentioned in the Vagrants Act.
[25]Acts Interpretation Act 1954 (Q), s 14B(3)(d).
Fifthly, unless s 7 of the Vagrants Act changed its meaning in 1966, or 1972, or 1980, or 1991, it is difficult to see how the ICCPR can advance the construction argument. If, prior to 1966 (or one of the later dates), s 7(1)(d) was limited to words intended to provoke, or likely to provoke, unlawful violence, then the ICCPR adds nothing. If it was not so limited earlier, the suggestion that it came later to be so limited, without any intervention by the Queensland Parliament, raises a topic of potentially wide constitutional significance.
Sixthly, let all the above difficulties be put to one side, and let it be assumed that the Vagrants Act is to be construed in the light of Art 19 of the ICCPR. What follows? How does the particular construction asserted, that is to say, limitation to words intended or likely to provoke unlawful violence, follow? As has already been explained, that is different from a limitation to words intended or likely to provoke violence. Queensland law permits physical retaliation to insulting provocation in certain cases. It is also different from the limitations that exist in some corresponding legislation in other jurisdictions. Furthermore, Art 19(3)(b) contemplates restrictions on freedom of speech for the protection of public order. For the reasons given above, public order is a concept that extends beyond absence of physical violence. If this point had been argued, counsel would have been given the opportunity to inform the Court about the number of countries in which a person, with impunity, may walk up to a policeman in a public place, push him, and inform passers-by that he is corrupt. As I have indicated, I would interpret s 7 as having built into it a requirement related to serious disturbance of public order or affront to standards of contemporary behaviour. This is not inconsistent with Art 19.
Finally, the consequences of the proposition, in its wider context, are noteworthy. The 1851 legislation prohibited the use of threatening, abusive or insulting words in a public street, but only if used with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. The legislation of 1931, apparently deliberately, removed the requirement of intent to provoke, or occasioning, a breach of the peace. Australia ratified the ICCPR in 1980. This is said to result in a construction of the 1931 Act which limits the prohibition to the use of insulting words with intent to provoke, or the likelihood of provoking, unlawful violence. Plus ça change, plus c'est la même chose.
I turn to the issue that divided the Court of Appeal of Queensland, and that formed the basis of the appellant's case in this Court. The appellant contended that s 7(1)(d) of the Vagrants Act, in its application to the facts of the present case, was invalid for the reason that it was inconsistent with the freedom of political communication conferred by implication by the Commonwealth Constitution.
It was common ground in argument in this Court that the appellant's contention is to be considered by reference to the principles stated in Lange v Australian Broadcasting Corporation[26], and that a law of the Queensland Parliament will infringe the relevant constitutional freedom where it effectively burdens communication about governmental or political matters, and either the object of the law is incompatible with the maintenance of the constitutional system of representative and responsible government or the law is not reasonably appropriate and adapted to achieving its object.
[26] (1997) 189 CLR 520 at 561-562, 567.
It was accepted by the Attorney-General of Queensland that s 7(1)(d) is capable of having a practical operation that, in some circumstances, may burden communication about governmental or political matters, whatever the precise ambit of the concept of governmental or political matters may be. That is true in the sense that threatening, abusive, or insulting words might be used in the course of communicating about any subject, including governmental or political matters. The same could be said about all, or most, of the other forms of conduct referred to in s 7. However, the object of the law is not the regulation of discussion of governmental or political matters; its effect on such discussion is incidental, and its practical operation in most cases will have nothing to do with such matters. The debate concentrated on the question whether the law, in its application to this case, is reasonably appropriate and adapted to achieving its object.
The facts of the case illustrate the vagueness of concepts such as "political debate", and words spoken "in the course of communication about governmental or political matters". The appellant was carrying on what the magistrate described as a personal campaign against some individual police officers, including the first respondent. Let it be accepted that his conduct was, in the broadest sense, "political". It was not party political, and it had nothing to do with any laws, or government policy. Because the constitutional freedom identified in Lange does not extend to speech generally, but is limited to speech of a certain kind, many cases will arise, of which the present is an example, where there may be a degree of artificiality involved in characterising conduct for the purpose of deciding whether a law, in its application to such conduct, imposes an impermissible burden upon the protected kind of communication. The conduct prohibited by the relevant law in its application to the present case involved what the magistrate was entitled to regard as a serious disturbance of public order with personal acrimony and physical confrontation of a kind that could well have caused alarm and distress to people in a public place. As was noted above, almost any conduct of the kind prohibited by s 7, including indecency, obscenity, profanity, threats, abuse, insults, and offensiveness, is capable of occurring in a "political" context, especially if that term is given its most expansive application. Reconciling freedom of political expression with the reasonable requirements of public order becomes increasingly difficult when one is operating at the margins of the term "political".
In Levy v Victoria[27], Brennan CJ, contrasting United States First Amendment jurisprudence, said:
"Under our Constitution, the courts do not assume the power to determine that some more limited restriction than that imposed by an impugned law could suffice to achieve a legitimate purpose. The courts acknowledge the law-maker's power to determine the sufficiency of the means of achieving the legitimate purpose, reserving only a jurisdiction to determine whether the means adopted could reasonably be considered to be appropriate and adapted to the fulfilment of the purpose."
[27] (1997) 189 CLR 579 at 598.
In the same case, Gaudron J adopted a somewhat different approach. She said[28]:
"If the direct purpose of the law is to restrict political communication, it is valid only if necessary for the attainment of some overriding public purpose. If, on the other hand, it has some other purpose, connected with a subject matter within power and only incidentally restricts political communication, it is valid if it is reasonably appropriate and adapted to that other purpose."
[28] (1997) 189 CLR 579 at 619.
The law presently under consideration is within the second category, and it is unnecessary to pursue the issues that would be relevant to the validity of a law within the first category. In relation to a law in the second category, the standard of judicial review proposed by Gaudron J, with which I respectfully agree, is rather more strict than that proposed by Brennan CJ, but it involves the same proposition, that is to say, that the Court will not strike down a law restricting conduct which may incidentally burden freedom of political speech simply because it can be shown that some more limited restriction "could suffice to achieve a legitimate purpose". This is consistent with the respective roles of the legislature and the judiciary in a representative democracy.
Legislation creating public order offences provides a good example of the reason for this difference in functions. The object of such legislation is generally the same: the preservation of order in public places in the interests of the amenity and security of citizens, and so that they may exercise, without undue disturbance, the rights and freedoms involved in the use and enjoyment of such places. The right of one person to ventilate personal grievances may collide with the right of others to a peaceful enjoyment of public space. Earlier, I gave an example of a mother who takes her children to play in a public park. Suppose that she and her children are exposed to threats, abuse and insults. Suppose, further, that the mother is an immigrant, that the basis of such threats, abuse and insults includes, either centrally or at the margin, an objection to the Federal Government's immigration policy, and that the language used is an expression, albeit an ugly expression, of an opinion on that matter. Why should the family's right to the quiet enjoyment of a public place necessarily be regarded as subordinate to the abusers' right to free expression of what might generously be described as a political opinion? The answer necessarily involves striking a balance between competing interests, both of which may properly be described as rights or freedoms. As the Solicitor-General of Queensland pointed out in the course of argument, it is often the case that one person's freedom ends where another person's right begins. The forms of conduct covered by s 7 all constitute an interference with the right of citizens to the use and enjoyment of public places. As the survey of legislation made earlier in these reasons shows, the balance struck by the Queensland Parliament is not unusual, and I am unable to conclude that the legislation, in its application to this case, is not suitable to the end of maintaining public order in a manner consistent with an appropriate balance of all the various rights, freedoms, and interests, which require consideration.
As indicated above, this case does not raise an issue as to the method and standard of scrutiny to be applied in judicial review of a law "whose character is that of a law with respect to the prohibition or restriction of [political] communications"[29]. I note also that argument in this case proceeded upon the common assumption that Lange v Australian Broadcasting Corporation[30] was authoritative, and that, in this context, a test of "reasonably appropriate and adapted" was to be applied. It was not argued, for example, that, in this case, a test of "proportionality" would produce a different result.
[29] cf Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 169 per Deane and Toohey JJ.
[30] (1997) 189 CLR 520.
In my view, the legislation is valid. That being so, the other issues do not arise. The appeal should be dismissed with costs.
McHUGH J. The principal issue in this appeal is whether s 7(1)(d)[31] of the Vagrants, Gaming and Other Offences Act 1931 (Q) was invalid to the extent that it penalised persons using insulting words where those words had a political content or purpose and the penalty constituted a burden on the freedom of political communication. Because the parties agree that the penalty for uttering the words in issue in this case had the capacity to burden that freedom, the appeal raises the narrow issue whether s 7(1)(d) was reasonably appropriate and adapted to serve the end of public order in a manner that was compatible with the system of representative and responsible government prescribed by the Constitution. If s 7(1)(d) was not compatible with that system, further issues arise as to whether the appellant's conviction under that paragraph can be maintained and, if not, whether it follows that convictions for other offences arising out of his resisting arrest for using insulting words must be quashed.
[31]Some of the provisions the subject of this appeal have been repealed: Act No 92 of 2003 (Q).
In my opinion, the appeal must be allowed in respect of all charges. Section 7(1)(d) made it an offence to utter insulting words in or near a public place. Nothing in the Vagrants, Gaming and Other Offences Act 1931 (Q) ("the Vagrants Act"), or any other relevant Queensland law, provided any defence to a charge under s 7(1)(d). Once such words were uttered in or near a public place, the offence was committed. Under the Constitution, a law that, without qualification, makes it an offence to utter insulting words in or near a public place cannot validly apply to insulting words that are uttered in the course of making statements concerning political or governmental matters. The appellant's conviction for uttering such words must be quashed. Furthermore, a law that seeks to make lawful the arrest of a person on such a charge is as offensive to the Constitution as the law that makes it an offence to utter insulting words in the course of making statements concerning political or governmental matters. Consequently, the appellant's convictions for obstructing and resisting arrest must also be quashed.
Statement of the case
The appeal is brought against an order of the Court of Appeal of the Supreme Court of Queensland, the effect of which was to uphold all but one of the convictions recorded against the appellant in the Townsville Magistrates Court. The Magistrates Court had convicted the appellant of the following charges:
(1)using insulting words: "This is Const Brendan Power a corrupt police officer" contrary to s 7(1)(d) of the Vagrants Act;
(2)obstructing "a police officer namely Adam CARNES in the performance of the officer's duties" contrary to s 120 of the Police Powers and Responsibilities Act 1997 (Q);
(3)assaulting "Adam CARNES a Police Officer whilst Adam CARNES was acting in the execution of his duty" contrary to s 340(b) of the Criminal Code (Q);
(4)assaulting "Brendan POWER a Police Officer whilst Brendan POWER was acting in the execution of his duty" contrary to s 340(b) of the Criminal Code (Q);
(5)obstructing "a police officer namely Brendan POWER in the performance of the officer's duties" contrary to s 120 of the Police Powers and Responsibilities Act 1997 (Q); and
(6)distributing printed matter containing insulting words contrary to s 7A(1)(c) of the Vagrants Act.
The learned magistrate rejected the appellant's claim that he was not guilty of the charges concerning insulting words because his statements were part of a communication on political or government matters and were within the immunity from legislative action formulated by this Court in Lange v Australian Broadcasting Corporation[32]. The learned magistrate said that the appellant was "not ... protesting against the laws and policies of this government". She said that his campaign was "a personal campaign related to particular officers of the Townsville Police whom he perceives have been involved in corrupt and criminal conduct".
[32](1997) 189 CLR 520 at 567-568.
The appellant appealed to the District Court of Queensland. Pack DCJ dismissed his appeal.
Subsequently, the appellant appealed to the Court of Appeal of the Supreme Court of Queensland (McMurdo P, Davies and Thomas JJA)[33]. The Court unanimously held that s 7A(1)(c) was invalid, in so far as it penalised the appellant for publishing a pamphlet containing insulting words (Charge (6))[34]. It quashed the conviction under that section of the Vagrants Act. However, the majority (Davies and Thomas JJA) held that s 7(1)(d) of the Vagrants Act was valid even though it burdened the implied freedom of communication on political and government matters protected by the Constitution. Davies JA said that the paragraph[35]:
"imposes only a slight burden on the freedom of communication about government or political matters and one which is reasonably appropriate and adapted to serve the legitimate end of preventing such public acrimony and violence, an end the fulfilment of which is compatible with the maintenance of the system of representative and responsible government".
Thomas JA said[36]:
"its burden upon freedom of communication about government or political matters is not very great in its terms of operation or effect. And, the law seems proportionate, appropriate and adapted to serve the legitimate ends that have been mentioned."
[33]Power v Coleman [2002] 2 Qd R 620.
[34]Power v Coleman [2002] 2 Qd R 620 at 633, 635, 645.
[35]Power v Coleman [2002] 2 Qd R 620 at 635.
[36]Power v Coleman [2002] 2 Qd R 620 at 645.
Accordingly, the majority upheld the conviction under s 7(1)(d) of the Vagrants Act. The Court unanimously dismissed the appeal against the remaining convictions[37].
[37]Power v Coleman [2002] 2 Qd R 620 at 634, 648.
The material facts
In March 2000, the appellant, Patrick John Coleman, was handing out pamphlets in a mall in Townsville. The mall was a public place. One of the headings in the pamphlet was in capital letters and in bold type stated: "GET TO KNOW YOUR LOCAL CORRUPT TYPE COPS". Behind the appellant was a placard upon which were written the words: "Get to know your local corrupt type coppers; please take one". The second and third lines in the body of the pamphlet declared that the appellant was "going to name corrupt cops". One of the police officers named in the pamphlet was the first respondent, Brendan Jason Power. The second page of the pamphlet contained the following statement:
"Ah ha! Constable Brendan Power and his mates, this one was a beauty – sitting outside the mall police beat in protest at an unlawful arrest – with simple placards saying TOWNSVILLE COPS – A GOOD ARGUMENT FOR A BILL OF RIGHTS – AND DEAR MAYOR – BITE ME – AND TOWNSVILLE CITY COUNCIL THE ENEMY OF FREE SPEECH – the person was saying nothing just sitting there talking to an old lady then BAMMM arrested dragged inside and detained. Of course not happy with the kill, the cops – in eloquent prose having sung in unison in their statements that the person was running through the mall like a madman belting people over the head with a flag pole before the dirty hippie bastard assaulted and [sic] old lady and tried to trip her up with the flag while ... while ... he was having a conversation with her before the cops scared her off ... boys boys boys, I got witnesses so KISS MY ARSE YOU SLIMY LYING BASTARDS."
The contents of this pamphlet formed the basis of Charge (6) which, as I have said, was laid under s 7A(1)(c) of the Vagrants Act and which the Court of Appeal unanimously held could not validly apply to the handing out of the pamphlet. The validity of Charge (6) is no longer an issue between the parties. However, the contents and handing out of the pamphlet are relevant matters in assessing whether the appellant was engaged in communicating political or governmental matters when he uttered the words that form the basis of Charge (1).
During the day, the appellant gave one of the pamphlets to Constable Carnes who told Constable Power about the contents of the pamphlet. As a result, Constable Power in the company of another constable approached the appellant and asked for a pamphlet. The appellant refused to give him one, saying, "No, you know what's in it". What happened thereafter was the subject of dispute between the police officers and the appellant as to whether he pushed Constable Power before or after his arrest.
In the District Court, Pack DCJ said the magistrate had "resolved the conflict in evidence in [Constable Power's] favour". I think that this conclusion is correct. Although the magistrate did not expressly say that she preferred the evidence of Constable Power to that of the appellant, her judgment shows that she thought the appellant's admissions in evidence and the evidence contained in a videotape proved the charges against him. Because the videotape evidence supported Constable Power's version of events, I think that she must have preferred his evidence to the appellant's evidence.
According to Constable Power's evidence, when the appellant refused to give him a copy of the pamphlet he took out a "notice to appear" to give to the appellant, and told him to stop handing out the pamphlets or he would be arrested. The appellant then pushed him and yelled out: "This is Constable Brendan Power, a corrupt police officer". Constable Power then told the appellant he was under arrest. A bystander then asked why the appellant was being arrested and Constable Power answered: "Insulting language". The statement that Constable Power was a corrupt police officer formed the basis of Charge (1).
The magistrate found that on the appellant's admissions he was guilty of "the charges of obstructing Senior Constables Carnes and Power following his lawful arrest". The obstruction consisted in the appellant "hanging onto the pole, having to be carried to the police car, refusing to get into the vehicle and then, when it was indicated that he should get out of the vehicle, refusing to exit the vehicle and thereafter holding onto Senior Constable Carnes' legs and then a further post before he was ultimately placed in the police van, kicking out at police." These facts were the basis of Charges (2) and (5).
The basis of Charge (4) was that the appellant attempted to bite Constable Power. The basis of Charge (3) – assaulting Constable Carnes – was:
"that the [appellant] kicked him as he was being put into the police van; that the kicking on the part of the [appellant] was deliberate in terms of his view that the arrest was unlawful and that he was going to do whatever he could to make it as difficult as he could".
The scope of s 7 of the Vagrants Act
Section 7(1) of the Vagrants Act provided:
"Obscene, abusive language etc.
Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear –
(a) sings any obscene song or ballad;
(b)writes or draws any indecent or obscene word, figure, or representation;
(c)uses any profane, indecent, or obscene language;
(d)uses any threatening, abusive, or insulting words to any person;
(e)behaves in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner;
shall be liable to a penalty of $100 or to imprisonment for 6 months …"
The scope of this provision was broad. Paragraph 7(1)(d) applied to the uttering of any insulting words that could be heard in or near a public place including a communication concerning a government or political matter.
The Vagrants Act contains an inclusive definition of "public place". Section 2 declares:
"'public place' includes every road and also every place of public resort open to or used by the public as of right, and also includes –
(a)any vessel, vehicle, building, room, licensed premises, field, ground, park, reserve, garden, wharf, pier, jetty, platform, market, passage, or other place for the time being used for a public purpose or open to access by the public, whether on payment or otherwise, or open to access by the public by the express or tacit consent or sufferance of the owner, and whether the same is or is not at all times so open; and
(b)a place declared, by regulation, to be a public place".
Hence, for the purposes of the Vagrants Act, public places include places not normally open to the public, but to which the public may have access at particular times upon paying a fee. They also include places accessible to the public with the tacit consent of the owner. And for the purposes of s 7, an offence might be committed in any private place that is within sight or hearing of a public place.
The term "insulting" was wide enough to catch a very broad range of words used by persons in a public place. The Shorter Oxford English Dictionary defines "insult" as[38]:
"To manifest arrogant or scornful delight by speech or behaviour; to exult proudly or contemptuously; to vaunt, glory, triumph ... To assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage."
[38]3rd ed (1944) at 1020.
The Macquarie Dictionary defines it as[39]:
"To treat insolently or with contemptuous rudeness; affront."
[39]3rd ed (rev) (2001) at 983.
Over a long period, superior courts – including this Court on one occasion – have decided many cases involving statutory offences concerned with using insulting words. Those cases show that insulting words include:
. "language calculated to hurt the personal feelings of individuals"[40],
."scornful abuse of a person or the offering of any personal indignity or affront"[41],
."something provocative, something that would be offensive to some person to whose hearing the words would come"[42].
[40]Ex parte Breen (1918) 18 SR (NSW) 1 at 6 per Cullen CJ. See also Wragge v Pritchard (1930) 30 SR (NSW) 279 at 280 per Street CJ.
[41]Annett v Brickell [1940] VLR 312 at 315.
[42]Lendrum v Campbell (1932) 32 SR (NSW) 499 at 503.
In Thurley v Hayes[43], this Court restored a conviction for using insulting words calculated to provoke a breach of the peace where the defendant had said to a returned soldier, "You are sponging on the Government and you waste public money and I will report you". Rich J, giving the judgment of the Court, said[44]:
"'Insulting' is a very large term, and in a statement of this kind is generally understood to be a word not cramped within narrow limits."
[43](1920) 27 CLR 548.
[44](1920) 27 CLR 548 at 550.
His Honour thought that the words used were within the then Oxford Dictionary definition of the term "insult", a definition that does not greatly differ from the present edition.
However, words are not insulting merely because they provoke anger or annoyance or show disrespect or contempt for the rights of other persons[45]. Thus, in Cozens v Brutus[46], the House of Lords held that it was open to magistrates to find that the defendant was not guilty of insulting behaviour although he angered spectators at a tennis match at Wimbledon. The defendant and nine other persons interrupted the match by running onto the court with banners and placards and blowing whistles and throwing leaflets around. Lord Reid said that, if he had to decide the question of fact, he would have agreed with the magistrates even though the spectators "may have been very angry and justly so"[47].
[45]Cozens v Brutus [1973] AC 854 at 862C, 864B, 865D 867D.
[46][1973] AC 854.
[47][1973] AC 854 at 863A.
In Cozens v Brutus, all the Law Lords agreed that the term "insulting" in the statute under consideration was an ordinary English word whose meaning was a question of fact[48]. In some cases, however, the context of the term may indicate that the word "insulting" should be read as broadly as possible or restrictively to give effect to the purpose of the enactment. If the statutory provision requires additional elements to be proved before the offence is created, such as, "with intent to provoke a breach of the peace", the term may be read as broadly as possible, as in Thurley.
[48][1973] AC 854 at 861D-F, 863D, 865G, 867B.
However, even where the offence requires proof of an element in addition to the use of insulting words or behaviour, the courts have not always taken the view that those terms should be read broadly. The New South Wales courts, for example, have generally given the term "insulting" a restricted meaning whatever the context. They have interpreted it so that the words must have had an effect on the feelings of the person or persons who hear them. In Ex parte Breen, Cullen CJ said of a provision very similar to the present, but containing an additional element that a breach of the peace be intended or occasioned by the insulting words[49]:
"The word [insulting] is often used in a very wide sense. One speaks of an insult to a man's intelligence, an insult to his loyal and patriotic sentiments, or an insult to his religious convictions. The collocation in which the word 'insulting' is used in this enactment seems to have a much narrower scope than that. I do not mean to say that offensive disrespect, either towards a man's national sentiments or his religion, may not sometimes assume the aspect of a personal insult to himself. What I mean is that the word 'insulting' as used in the enactment seems to have regard to the more personal feelings of individuals to whose hearing the words may come."
[49](1918) 18 SR (NSW) 1 at 5.
On that basis his Honour held that words disrespectful of British officers and British women at war were not within the statute because they were not uttered in the presence of those persons or others closely connected with them.
Unsurprisingly in view of Ex parte Breen[50], where the use of insulting words in a public place is by itself sufficient to create the offence, New South Wales courts have read the term "insulting" as meaning having a personal effect on the person who hears them. In Lendrum v Campbell[51], the Full Court of the Supreme Court applied the reasoning in Ex parte Breen to a statutory provision that made it an offence to use threatening, abusive or insulting words in or near certain public places "within the view or hearing of any person present therein"[52]. Unlike the statute in Ex parte Breen, the provision in Lendrum did not require proof that a breach of the peace be intended or occasioned by the insulting words. No doubt for that reason the Full Court felt compelled to read the statute restrictively.
[50](1918) 18 SR (NSW) 1 at 4-6.
[51](1932) 32 SR (NSW) 499.
[52]Lendrum v Campbell (1932) 32 SR (NSW) 499 at 501.
The terms of s 7(1)(d) were similar to those considered by the Full Court in Lendrum. However, the New South Wales statute considered in that case did not contain the qualifying words "to him". The presence of this phrase in s 7(1)(d) provides a strong reason for giving s 7(1)(d) the construction that the Full Court gave to the New South Wales statute. That is to say, the term "insulting" requires proof by direct evidence or by inference that the words used had a personal effect on the person or persons who heard them.
However, I can see no reason for otherwise limiting the natural and ordinary meaning of "insulting". The provision imposed its own limitations: the insulting words had to be directed to a person and they had to be used in or near a public place. Accordingly, if the words were used in or near a public place and were calculated to hurt the personal feelings of a person and did affect the feelings of that person, they were "insulting words" for the purpose of s 7(1)(d).
Seizing on the words "to him", the respondents contend that to come within s 7(1)(d), the relevant words had to be said to the person at whom the insult is directed. This proposition has the curious result that words insulting to a person would not be an offence if said in his or her presence, as long as they were not directed to that person. Form would triumph over substance. In the present case, for example, it might mean that the appellant committed no offence by saying to bystanders: "This is Constable Power – a corrupt police officer". But the appellant would commit an offence by saying to Constable Power, "You are a corrupt police officer". However, to completely deny the respondents' proposition requires reading words such as "concerning any person" into the paragraph. The paragraph would then have read "uses any ... insulting words concerning any person to any person". This is an interpretation that the Supreme Court of New South Wales denied to the New South Wales provision considered in Ex parte Breen[53]. And I think it should be denied to s 7(1)(d). Except by necessary implication, courts should not extend the natural and ordinary meaning of words that create an offence, especially when the statute is regulating such a fundamental right as that of free speech. However, it does not follow that the words in question had to be said directly to the person insulted. It is sufficient that the person of whom they are said could reasonably, and did, regard their content as directed at him or her.
[53]See Ex parte Breen (1918) 18 SR (NSW) 1 at 6. See also Lendrum v Campbell (1932) 32 SR (NSW) 499 at 503.
Accordingly, if a person used words in or near a public place that were insulting in their natural and ordinary meaning, that person committed an offence against par (d) of s 7(1) if the words were used, expressly or impliedly, to the person who was the subject of the insult. "Public places" and "insult to the person" were the only limitations that the paragraph imposed. Otherwise, the words of the paragraph should be given their ordinary and natural meaning. It is true that s 7(1)(d) used the terms "threatening" and "abusive". But I cannot see anything in those terms that suggests that the natural and ordinary meaning of "insulting" in s 7(1)(d) did not apply.
Nor can I see any reason for reading into s 7(1)(d) the limitation that the insulting words should be likely to occasion a breach of the peace. Not only did the Vagrants Act not expressly contain such a limitation but, in enacting the present Act, the Queensland Parliament removed that very limitation from a previous version of the offence[54]. Moreover, s 7 was premised on the basis that offences under s 7(1) pars (a), (b), (c) and part of par (e) might occur even though there was no person other than the offender present. Section 7(1) made it an offence to do the matters described in those paragraphs if they were done "in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear" those matters (emphasis added). Thus, s 7(1)(e) made it an offence to behave in an insulting manner whether or not any person was present. How an offence might be proved if no one was present, except by an admission, is another matter. What is important is that s 7(1) did not require a person to be present in every situation where an offence under the sub-section might occur. This points strongly to proof of a breach or potential breach of the peace not being an element of offences under the sub-section. Furthermore, even when persons were present, a breach of the peace was an unlikely result in many cases of offences created by the sub-section. While almost any breach of the law may lead to a further breach of the peace, in most cases the occurrence of the offences created in pars (a), (b) and (c) of s 7(1) seems unlikely to lead to breaches of the peace.
[54]Vagrant Act (1851) (15 Vict No 4), s 6.
Conclusion. Section 7(1)(d) does not cut so far into the freedom of political communication as to detract from what is necessary for the effective operation of the system of government prescribed by the Constitution. "[T]he freedom of communication which the Constitution protects against laws which would inhibit it is a freedom which is commensurate with reasonable regulation in the interests of an ordered society."[351] The proscription by s 7(1)(d) of the uttering of insulting words to a person in or near a public place is reasonable regulation in the interests of an ordered society.
[351]Levy v Victoria (1997) 189 CLR 579 at 608 per Dawson J.
It is reasonably appropriate and adapted to the legitimate ends it serves.
Other issues
It follows that the question whether, if s 7(1)(d) as enacted were invalid, it should be read down, does not arise. The same is true of the question whether, even if s 7(1)(d) were invalid and were not read down, the assault and obstructing police convictions could stand.
I agree with the orders proposed by Callinan J.