Monis v The Queen

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

Matter No S172/2012

MAN HARON MONIS  APPELLANT

AND

THE QUEEN & ANOR  RESPONDENTS

Matter No S179/2012

AMIRAH DROUDIS  APPELLANT

AND

THE QUEEN & ANOR  RESPONDENTS

Monis v The Queen
Droudis v The Queen

[2013] HCA 4

27 February 2013

S172/2012 & S179/2012

ORDER

In Matter No S172/2012:

Appeal dismissed.

In Matter No S179/2012:

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

G O'L Reynolds SC with J C Hewitt and G R Rubagotti for the appellant in S172/2012 (instructed by Aston Legal)

D M J Bennett QC with A K Flecknoe-Brown for the appellant in S179/2012 (instructed by CBD Criminal Defence Lawyers)

J V Agius SC with M G McHugh for the first respondent in both matters (instructed by Commonwealth Director of Public Prosecutions)

M G Sexton SC, Solicitor-General for the State of New South Wales with S E Pritchard for the second respondent in both matters (instructed by Crown Solicitor (NSW))

Interveners

T M Howe QC with R J Orr for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Hinton QC, Solicitor-General for the State of South Australia with L K Byers for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

S G E McLeish SC, Solicitor-General for the State of Victoria with A D Pound for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

G R Donaldson SC, Solicitor-General for the State of Western Australia with J E Shaw for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Monis v The Queen
Droudis v The Queen

Constitutional law – Implied freedom of communication on government and political matters – Criminal offence under s 471.12 of Criminal Code (Cth) for person to use postal or similar service in way that "reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive" – Appellants allegedly sent communications to relatives of Australian soldiers and officials killed in Afghanistan and Indonesia – Communications criticised deployment of Australian troops in Afghanistan in terms critical of deceased – Appellants charged with using and aiding and abetting use of postal service in way that reasonable persons would regard as offensive – Whether s 471.12 in its application to "offensive" uses of postal service effectively burdens implied freedom of political communication – Whether s 471.12 in its application to "offensive" uses of postal service is reasonably appropriate and adapted to legitimate end in manner compatible with system of representative and responsible government.

Statutes – Interpretation – Whether purpose of s 471.12 of Criminal Code (Cth) in its application to "offensive" uses of postal service is only to prohibit those offensive uses – Whether purpose of s 471.12 in its application to "offensive" uses of postal service is to prohibit misuse of service for intrusion of seriously offensive material into home or workplace – Whether s 471.12 in its application to "offensive" uses of postal service is limited to seriously offensive uses.

Words and phrases – "effectively burden", "legitimate end", "offensive", "proportionality", "reasonable person", "reasonably appropriate and adapted".

Constitution, ss 7, 24, 128.
Criminal Code (Cth), Div 471, s 471.12.

FRENCH CJ.

Introduction

1. These appeals arise out of charges laid against the appellants, one of whom, Man Haron Monis, is said, in 2007, 2008 and 2009, to have written letters[1] to parents and relatives of soldiers killed on active service in Afghanistan which were critical of Australia's involvement in that country and reflected upon the part played in it by the deceased soldiers. The other appellant, Amirah Droudis, is said to have aided and abetted him in relation to a number of those letters. The appellants were charged under s 471.12 of the Criminal Code (Cth) ("the Code"), which prohibits the use of a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, "offensive".

   [1]In one case a sound recording was said to have been sent.

2. The Australian Constitution limits the power of parliaments to impose burdens on freedom of communication on government and political matters.  No Australian parliament can validly enact a law which effectively burdens freedom of communication about those matters unless the law is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government in Australia.  The question in these appeals is whether the provision under which the appellants were charged exceeds the limits of the legislative power of the Commonwealth Parliament because it impermissibly burdens freedom of communication about government or political matters.

3. The answer to the question is in the affirmative.  That answer depends upon the proper interpretation, legal effect, operation and purpose of the impugned provision.  It does not depend upon any opinion about or characterisation of the conduct said to have given rise to the charges.  Nor does it involve any general conclusion about the extent of Commonwealth power to legislate in respect of such conduct.

   Factual and procedural background

4. Mr Monis was charged on indictment in the District Court of New South Wales on 12 April 2011 with 13 offences against s 471.12 of the Code. Ms Droudis was charged on the same indictment with eight counts alleging that she aided and abetted the commission of offences against s 471.12 by Mr Monis. A typical count against Mr Monis alleged that he:

   "On about 27 November 2007 at Sydney, New South Wales, used a postal service, namely Australia Post, in a way that reasonable persons would regard as being, in all the circumstances, offensive by sending a letter dated 25 November 2007 addressed to Mr John Worsley, the father of Private Luke Worsley, an Australian Defence Force Soldier killed in action on 23 November 2007 … Contrary to section 471.12 of the Criminal Code 1995".

5. Section 471.12 of the Code provides:

   "A person is guilty of an offence if:

   (a)the person uses a postal or similar service; and

   (b)the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

   Penalty:Imprisonment for 2 years."

6. The letters that were the subject of the charges were described by Bathurst CJ in the Court of Criminal Appeal of New South Wales[2] as "at one level ... critical of the involvement of the Australian Military in Afghanistan" but also as referring "to the deceased soldiers in a denigrating and derogatory fashion."[3]

   [2]Monis v The Queen (2011) 256 FLR 28.

   [3](2011) 256 FLR 28 at 30 [4].

7. The appellants filed notices of motion in the District Court seeking to have the indictment quashed on the basis that s 471.12 was invalid because it infringed the constitutional implied freedom of political communication. On 18 April 2011, Tupman DCJ dismissed the motions. Appeals to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW)[4] were dismissed on 6 December 2011.

   [4]Section 5F of the Criminal Appeal Act 1912 (NSW) provides for appeals to the Court of Criminal Appeal against an interlocutory judgment or order given in proceedings to which the section applies. That includes proceedings for the prosecution of offenders on indictment in the Supreme Court or the District Court.

8. On 22 June 2012 the appellants were granted special leave to appeal to this Court from the decision of the Court of Criminal Appeal. The appeals to the Court of Criminal Appeal and to this Court were concerned only with the validity of s 471.12 in so far as it relates to "offensive" uses of a postal service. A challenge to the harassment limb of s 471.12, which was argued in the District Court, was abandoned in the Court of Criminal Appeal and not pursued in this Court.

   The statutory framework

9. Section 471.12 appears in Pt 10.5 of Ch 10 of the Code. Chapter 10 is entitled "National infrastructure". Part 10.5 is entitled "Postal services". Section 470.1 sets out an important definition of the term "postal or similar service". That term means, inter alia:

   "(a)a postal service (within the meaning of paragraph 51(v) of the Constitution); or

   (b)a courier service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

   (c)a packet or parcel carrying service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

   (d)any other service that is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution)".

   In reliance upon the legislative powers conferred on the Commonwealth Parliament by s 51(i) and (xx) of the Constitution the definition is extended to cover courier and packet or parcel carrying services provided in the course of or in relation to interstate or overseas trade or commerce[5] and such services provided by constitutional corporations[6]. The extended definition is not limited to courier or packet or parcel carrying services which are "postal or other like services" within the meaning of s 51(v) of the Constitution. Thus a packet or parcel carrying service conducted by a trading corporation and distributing pamphlets, brochures or other literature and video or audio recordings would appear to be within the extended definition.

   [5]The Code, s 470.1.

   [6]The Code, s 470.1.

10. Offences created under Div 471 include the theft and receiving, taking or concealing of mail-receptacles, articles or postal messages[7].  The Division creates offences relating to damaging or destroying mail-receptacles, articles or personal messages[8] and tampering with mail-receptacles[9].  It is an offence to cause an article to be carried by a postal or similar service with the intention of inducing a false belief that it consists of, encloses or contains an explosive or a dangerous or harmful substance or thing or that such a substance or thing has been or will be left in any place[10].  It is an offence to use a postal or similar service to make a threat to kill another person or to cause serious harm[11].  It is also an offence to cause a dangerous article to be carried by a postal or similar service[12] or to cause an explosive or a dangerous or harmful substance to be carried by post[13].

    [7]The Code, ss 471.1, 471.2, 471.3.

    [8]The Code, s 471.6.

    [9]The Code, s 471.7.

    [10]The Code, s 471.10.

    [11]The Code, s 471.11.

    [12]The Code, s 471.13.

    [13]The Code, s 471.15.

11. There is no doubt that a purpose of Div 471 of the Code is to prevent interference with or disruption of postal and similar services and the use of those services for criminal purposes. A number of the offences created by that Division cover conduct similar to conduct which would be criminal under provisions of State law[14] not specific to the use of postal services.  The impugned provision, so far as it relates to "offensive" use of a postal or similar service, does not appear to have any precise counterpart in the general criminal law concerning offences involving the sending or delivering of things from one person to another.  The offence of "stalking" under South Australian and Tasmanian law covers sending offensive material to a person but in a manner which would reasonably be expected to cause the recipient apprehension or fear[15]. There is no equivalent limitation on the offensive use limb of s 471.12. The latter offence does, however, have mental or "fault" elements.

    [14]For example see Crimes Act 1900 (NSW), ss 31, 47, 93R; Crimes Act 1958 (Vic), s 317A; Criminal Law Consolidation Act 1935 (SA), ss 248, 250; Criminal Code (Q), s 321A; Criminal Code (WA), s 294(4); Criminal Code (Tas), ss 170, 192.

    [15]Criminal Law Consolidation Act 1935 (SA), s 19AA(1)(a)(iv), (iva) and (ivb); see also Criminal Code (Tas), s 192(1)(f) and (g) and (3).

12. The "general principles of criminal responsibility" set out in the Code apply to all offences under the Code. The elements of offences are classified as physical and fault elements[16].  Physical elements may consist of conduct or a result of conduct or a circumstance in which conduct or a result of conduct occurs[17].  A fault element may be "intention, knowledge, recklessness or negligence"[18]. Where no fault element is specified for a physical element consisting only of conduct, the Code provides that intention is the fault element for that physical element[19].  If a physical element for which no fault element is specified consists of a circumstance or a result, recklessness is the fault element for that physical element[20].  A person is reckless with respect to a circumstance if[21]:

    "(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and

    (b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk."

    A similar test applies to recklessness with respect to a result[22].  The question whether taking a risk is unjustifiable is a question of fact[23].  Where recklessness is a fault element, proof of intention, knowledge or recklessness will satisfy that element[24].

    [16]The Code, s 3.1(1).

    [17]The Code, s 4.1(1).

    [18]The Code, s 5.1(1).

    [19]The Code, s 5.6(1).

    [20]The Code, s 5.6(2).

    [21]The Code, s 5.4(1).

    [22]The Code, s 5.4(2).

    [23]The Code, s 5.4(3).

    [24]The Code, s 5.4(4).

13. The Commonwealth, supported by the Attorney-General for Victoria, submitted that the offence created by s 471.12, in its application to offensive uses, comprises two physical elements:

    •          The use of a postal or similar service;

    •The circumstance that the use of the service would be regarded by reasonable persons as being, in all the circumstances, offensive.

    That submission was not disputed and, subject to one qualification, should be accepted.  The qualification is that the characterisation of the use of a postal or similar service as "offensive" is better regarded as a "circumstance" than as a "result" of the conduct[25].  It is not a "result" because, being framed objectively by reference to how "reasonable persons" would regard the conduct, it does not import a requirement that any person was actually offended[26].  On that basis the fault element of intention applies to the use of the postal or similar service.  The fault element of recklessness applies to the characterisation of the use as offensive.

    [25]See similarly worded s 474.17 of the Code, which applies to the use of carriage services, the elements of which were considered in Crowther v Sala [2008] 1 Qd R 127 at 136–137 [47]–[48] per Philip McMurdo J, Muir J concurring at 133 [30].

    [26]A longstanding construction of "offensive" as distinct from "offend" or "offends":  Inglis v Fish [1961] VR 607 at 611 per Pape J; Ellis v Fingleton (1972) 3 SASR 437 at 440–443 per Mitchell J and authorities there cited; Khan v Bazeley (1986) 40 SASR 481 at 483 per O'Loughlin J. It nevertheless does not resolve the difficulty of determining the assumed perspective of the "reasonable person", discussed at [44]–[47] of these reasons.

14. It follows that to establish the offence of offensive use of a postal or similar service it is necessary to prove at least that:

    •          The accused used a postal or similar service;

    •          The accused intended to do so;

    •The accused did so in a way, whether by method of use or the content of a communication, that reasonable persons would regard as being in all the circumstances offensive;

    •The accused was aware of a substantial risk that the way in which he or she used the service would be regarded by reasonable persons as being in all the circumstances offensive; and

    •Having regard to the circumstances known to the accused it was unjustifiable to take the risk.

    In its application to the content of communications delivered using postal or similar services, the prohibition applies to communications the content of which reasonable persons would regard as being in all the circumstances offensive, whether or not anyone was actually offended by it.

15. A provision of the law of the United Kingdom, which bears some resemblance to s 471.12 but is not confined to postal or similar services, is s 1(1) of the Malicious Communications Act 1988 (UK). That provision makes it an offence to send a person any article "which is, in whole or part, of an indecent or grossly offensive nature". However, unlike the offence created by s 471.12 of the Code, the sender must have the purpose of causing distress or anxiety to the recipient. As appears from the discussion of the physical and fault elements of the offence created by s 471.12, it is not necessary, in order to prove that offence, to demonstrate that the use of the postal or similar service was for a particular purpose.

16. Another imperfect analogue of the offence created by s 471.12 is found in s 127(1)(a) of the Communications Act 2003 (UK).  That provision makes it an offence to send a message that is grossly offensive by means of a "public electronic communications network"[27].  Its object, as formulated in the decision of the House of Lords in Director of Public Prosecutions v Collins[28], is "to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society."[29]  Lord Brown, who joined in that formulation, also described the provision as "intended to protect the integrity of the public communication system"[30].  The purpose of s 1(1) of the Malicious Communications Act, which is not linked to the use of postal or other communications systems, was described in Collins as "to protect people against receipt of unsolicited messages which they may find seriously objectionable."[31]

    [27]Defined as "an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public":  Communications Act 2003 (UK), s 151.

    [28][2006] 1 WLR 2223; [2006] 4 All ER 602.

    [29][2006] 1 WLR 2223 at 2227 [7] per Lord Bingham, Lord Nicholls and Baroness Hale agreeing at 2229 [16], [17]; [2006] 4 All ER 602 at 607, 609.

    [30][2006] 1 WLR 2223 at 2232 [27]; [2006] 4 All ER 602 at 612.

    [31][2006] 1 WLR 2223 at 2227 [7] per Lord Bingham; [2006] 4 All ER 602 at 607.

17. The Malicious Communications Act gave effect to a recommendation of the Law Commission in a report, published in 1985, on "Poison-Pen Letters"[32].  The Commission observed that there were no judicial decisions on the meaning of the term "grossly offensive" but had no reason to suppose that it had given rise to any difficulty[33].  More than twenty years later in Connolly v Director of Public Prosecutions[34] those words were held to be ordinary English words and to apply to the conduct of an anti-abortion campaigner who sent photographs of aborted foetuses through the mail to pharmacists.  Dyson LJ, with whom Stanley Burnton J concurred, construed s 1(1), pursuant to the requirements of the Human Rights Act 1998 (UK), in light of the freedom of expression declared in Art 10(1) of the European Convention on Human Rights.  Section 1(1) was found to infringe that freedom.  It was nevertheless held to be justified under Art 10(2) as "necessary in a democratic society … for the protection of the … rights of others".  Those were the "rights" of the recipients of the letters not to receive grossly offensive photographs of aborted foetuses at their place of work where the photographs were sent for the purpose of creating distress or anxiety[35].  They were rights formulated by applying the statutory prohibition to the facts of the particular case[36].

    [32]The Law Commission, Criminal Law:  Report on Poison-Pen Letters, Law Com No 147, (1985).

    [33]The Law Commission, Criminal Law:  Report on Poison-Pen Letters, Law Com No 147, (1985) at 17 [4.15].

    [34][2008] 1 WLR 276; [2007] 2 All ER 1012.

    [35]Connolly v Director of Public Prosecutions [2008] 1 WLR 276 at 285 [28] per Dyson LJ; [2007] 2 All ER 1012 at 1021–1022.

    [36]For a critical discussion of the "rights of others" approach, see Khan, "A 'Right Not to be Offended' Under Article 10(2) ECHR?  Concerns in the Construction of the 'Rights of Others'", (2012) European Human Rights Law Review 191.

18. A similar approach, albeit in a different statutory context, appears in a number of the judgments of the House of Lords in R (ProLife Alliance) v British Broadcasting Corporation[37]. Their Lordships reversed a decision of the Court of Appeal allowing judicial review of a refusal by the BBC to transmit a political party broadcast showing images of aborted foetuses. The refusal was based on the opinion that the material would be "offensive to public feeling" within the meaning of s 6(1)(a) of the Broadcasting Act 1990 (UK).  That statutory standard was linked to a general rubric of "taste and decency".  Lord Nicholls said it was not for the Court to carry out a balancing exercise "between the requirements of freedom of political speech and the protection of the public from being unduly distressed in their own homes."[38]  Parliament had struck the balance[39].  Lord Hoffmann referred to the statutory standard as having "created expectations on the part of the viewers as to what they will and will not be shown on the screens in their homes."[40]  Lord Walker referred to the "right" of the citizen "not to be shocked or affronted by inappropriate material transmitted into the privacy of his home."[41]  Putting to one side whether such a right existed under the European Convention, his Lordship characterised it as an "indisputable imperative"[42].

    [37][2004] 1 AC 185.

    [38]R (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185 at 226 [16], Lord Millett agreeing at 241 [82].

    [39]R (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185 at 226 [16], Lord Millett agreeing at 241 [82].

    [40]R (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185 at 239 [70].

    [41]R (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185 at 252 [123].

    [42]R (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185 at 252 [123]. The term was used in Chassagnou v France (1999) 29 EHRR 615 at 687 [113] as a justification for interference with the enjoyment of a Convention right in order to protect rights or freedoms not enumerated in the Convention.

19. No negative juristic right, equivalent to those formulated in Connolly and ProLife, can be derived from s 471.12 of the Code. It was not suggested that such a thing exists at common law. Nor should such a right be conjured in order to erect a statutory purpose to protect it. The use of the term "rights of others" as a source of rights beyond those enumerated in the European Convention on Human Rights and derogating from the freedom of expression in Art 10(1) has been criticised in terms relevant to "rights of others" analysis in Australia[43]:

    "Such a potentially limitless pool of 'countervailing rights' is deeply unattractive and troubling, threatening as it does to swallow up the right to freedom of expression."

    [43]Cram, "The Danish Cartoons, Offensive Expression, and Democratic Legitimacy", in Hare and Weinstein (eds), Extreme Speech and Democracy, (2009) 311 at 320.

20. It is sufficient to observe that a relevant statutory purpose of s 471.12 is the prevention of offensive uses of postal and similar services. That purpose does not aid in the construction of s 471.12 as it is a purpose derived from the text itself. It can only be given content by the construction of the section applying other criteria. Criteria relevant in this case are that the provision attaches a criminal sanction to an offensive use of postal or similar services and that such uses may include the content of a communication thereby affecting freedom of expression. The criminal sanction and the application of the principle of legality both indicate a requirement for a high threshold to be surmounted before the content of a communication made using a postal or similar service can be characterised as "offensive". A useful definition of any larger statutory purpose based upon common attributes of or significance to be attached to "postal or similar services" is elusive.

    The District Court decision

21. In the District Court Tupman DCJ construed the term "offensive" as meaning "something that would be likely to wound (as opposed to merely hurt) the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person in all of the circumstances."  Her Honour rejected a submission that it should be construed as including "repugnant in a moral sense". 

22. Tupman DCJ accepted that even on her construction of the term "offensive" s 471.12 could cover "legitimate political or governmental discourse or communication". Her Honour held that the purposes of the provision are:

    •To protect the "integrity of the post both physically and as a means of communication in which the public can have confidence"; 

    •To prevent breaches of the peace which might arise out of the receipt of an offensive communication;

    •To prevent harm in the nature of wounded feelings, anger, resentment, disgust or outrage on the part of the recipient.  

23. Her Honour concluded that s 471.12 is reasonably appropriate and adapted to serve legitimate legislative ends and that it does so in a manner compatible with the maintenance of the system of government prescribed by the Constitution. The provision thus met the criteria for validity enunciated by this Court in Lange v Australian Broadcasting Corporation[44] and the challenge to its validity failed.

    [44](1997) 189 CLR 520; [1997] HCA 25.

    The decision of the Court of Criminal Appeal

24. There were three separate sets of reasons for judgment in the Court of Criminal Appeal. Bathurst CJ held that for the use of a postal service to be offensive within s 471.12 it had to be "calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances."[45]  It would not be sufficient if the use would only hurt or wound the feelings of the recipient in the mind of a reasonable person[46].  Allsop P adopted the same limiting construction[47] and in the alternative proposed a further requirement, not adopted by Bathurst CJ, that the conduct must be such as to cause "real emotional or mental harm, distress or anguish" to the addressee[48].  That alternative, directed to the infliction of harm on the recipients of offensive communications, involved, with respect, an unjustifiable gloss on the meaning of "offensive".  McClellan CJ at CL took a more open-textured approach, holding that[49]:

    "The section will only be breached if reasonable persons, being persons who are mindful of the robust nature of political debate in Australia and who have considered the accepted boundaries of that debate, would conclude that the particular use of the postal service is offensive."

    [45](2011) 256 FLR 28 at 39 [44].

    [46](2011) 256 FLR 28 at 39 [44].

    [47](2011) 256 FLR 28 at 48 [83].

    [48](2011) 256 FLR 28 at 50 [89].

    [49](2011) 256 FLR 28 at 54–55 [118].

25. Bathurst CJ and Allsop P correctly held that s 471.12 effectively burdened freedom of communication about government and political matters[50].  As Allsop P observed[51]:

    "Some political communications may, by their very nature, be objectively calculated or likely to cause or arouse significant anger, significant resentment, outrage, disgust or hatred."

    McClellan CJ at CL, although not expressly stating that he did so, appears to have reached a similar conclusion[52].

    [50](2011) 256 FLR 28 at 42 [56] per Bathurst CJ, 48–49 [84]–[85] per Allsop P.

    [51](2011) 256 FLR 28 at 48 [84].

    [52](2011) 256 FLR 28 at 53 [108].

26. Bathurst CJ identified the legislative purposes of s 471.12 as including the protection of persons from being subjected to material that is "offensive" in the sense in which his Honour had construed that term. His Honour inferred that the legislature considered such protection necessary having regard to the features of a postal service including:

    •That the post is generally sent to a person's home or business address and therefore personalised;

    •That material sent by post is often unable to be avoided in the ordinary course of things[53].

    Allsop P accepted a submission that the purpose of the provision was to protect "the integrity of the post"[54].  His Honour said[55]:

    "It is legitimate in the maintenance of an orderly, peaceful, civil and culturally diverse society such as Australia that services that bring communications into the homes and offices of people should not be such as to undermine or threaten a legitimate sense of safety or security of domain, and thus public confidence in such services."

    McClellan CJ at CL did not expressly identify the purpose of the provision. Each of the members of the Court of Criminal Appeal held that s 471.12, in its application to offensive uses of a postal service, was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the system of government prescribed by the Constitution[56] and was valid.

    [53](2011) 256 FLR 28 at 42–43 [59].

    [54](2011) 256 FLR 28 at 46 [78].

    [55](2011) 256 FLR 28 at 46 [78].

    [56](2011) 256 FLR 28 at 44 [67] per Bathurst CJ, 50 [91] per Allsop P, 55 [119] per McClellan CJ at CL.

27. Their Honours placed some emphasis upon the use of postal and similar services to deliver letters and articles to "homes and offices". Their emphasis was reflected in the Commonwealth Attorney-General's submission to this Court that the purpose of s 471.12 is to prevent "the misuse of postal services to effect unwanted and undesirable intrusions into private spaces, so as to preserve public confidence in the use of those services." That approach echoes the observation by the Supreme Court of the United States in Rowan v Post Office Department[57] that:

    "The ancient concept that 'a man's home is his castle …' has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another."

    In that case the Supreme Court upheld the validity, against a First Amendment challenge, of legislation under which a recipient of "pandering advertisement[s]"[58] could request the Postmaster-General to direct the sender to refrain from further postings to that address.  A shadow of that approach may also be seen in the observation made in the majority opinion in United States Postal Service v Council of Greenburgh Civic Associations[59] that:

    "There is neither historical nor constitutional support for the characterization of a letterbox as a public forum."

    What might seem to be a trite common law analogue of that proposition appears in the observation of Stamp LJ in Hubbard v Pitt[60]:

    "Judges may ardently believe in the liberty to speak, the liberty to assemble and the liberty to protest or communicate information:  but the necessity to preserve these liberties would not constrain the court to refuse a plaintiff an injunction to prevent defendants exercising those liberties in his front garden."

    The analogy breaks down to the extent that it posits an exercise of the liberty which infringes the legal rights of a third party[61].  A closer analogy may be found in the reasoning involving the "rights of others" and "indisputable imperatives" mentioned in Connolly and ProLife.

    [57]397 US 728 at 737 (1970).

    [58]397 US 728 at 728 (1970).

    [59]453 US 114 at 128 (1981).

    [60][1976] 1 QB 142 at 187.

    [61]In that case an interlocutory injunction was upheld to restrain protesters picketing the premises of a real estate agent, there being a serious issue to be tried whether the defendants were committing the tort of private nuisance.

28. Reference to United States authority must have regard to the particular history of postal services in that country as a means of political communication of such importance that postal services policy and legislation is said to have shaped First Amendment doctrine[62].  That is not to deny the historical importance, in Australia, of the post as a mechanism of political communication.  In Bradley v The Commonwealth[63], Barwick CJ and Gibbs J described postal and telephone services as "among the most important amenities available to the people of the Commonwealth" and as "essential to the conduct of trade and commerce as well as to the enjoyment of any real freedom in the dissemination of information and opinion."[64]  Their Honours added that it was legitimate to have regard to those considerations when interpreting the Post and TelegraphAct 1901 (Cth)[65].  The interpretive task in these appeals makes reference to those considerations not only legitimate but necessary.  Bradley supports a restrictive construction of the constraint imposed by the term "offensive" in s 471.12. Such an approach accords with and does not exceed the principle of legality requiring a construction, if it be available, that would minimise the incursion of the statutory prohibition into the common law freedom of speech and expression. On the other hand, what was said in Bradley would not support a restrictive interpretation of laws enacted to prevent disruption to, or interference with, postal and other services as a medium of communication or their use for criminal purposes. However, what was said in that case does not lead to the identification of a mischief particularly relevant to postal and similar services, to which the impugned part of s 471.12 is directed.

    [62]Desai, "The Transformation of Statutes into Constitutional Law:  How Early Post Office Policy Shaped Modern First Amendment Doctrine", (2007) 58 Hastings Law Journal 671; see also Ammori, "First Amendment Architecture", (2012) Wisconsin Law Review 1 at 37–38.

    [63](1973) 128 CLR 557; [1973] HCA 34.

    [64](1973) 128 CLR 557 at 566.

    [65]The interpretive task in that case concerned the power of the Postmaster-General to deprive any person of the liberty to use the postal and telephonic services.

29. The Court of Criminal Appeal's formulation of the legitimate ends served by s 471.12 in its application to offensive conduct invites scrutiny because of the very wide definition of postal and similar services in s 470.1 and the range of uses of such services which might be characterised as "offensive". Because of the definition of "postal or similar service" the scope of the prohibition extends well beyond cases involving the delivery of letters and parcels to homes and businesses through publicly owned or regulated postal services. For that reason formulations of the purposes served by s 471.12 beyond prevention of the conduct which it prohibits are of limited utility. General statements about "protection of the integrity of the post" or protection against delivery of unwanted and unavoidable communications to home or office do not adequately explain the scope of the offence. There is nothing in the section which would necessarily exclude the characterisation as "offensive" of communications sent to persons who are pleased to receive them. The sending by a racist organisation of "hate literature" to members or sympathisers could, depending upon its content, fall within the section. If that possibility is open so are many others.

    Grounds of appeal and contentions

30. The appellants took issue with the Court of Criminal Appeal's construction of s 471.12 and particularly of the term "offensive". Each also asserted that the Court of Criminal Appeal ought to have found that s 471.12 infringed the implied freedom of political communication. The first respondent filed a notice of contention in each appeal asserting that the Court of Criminal Appeal erred in holding that s 471.12 effectively burdened the implied freedom of communication about government or political matters. Before turning to the construction of s 471.12 it is useful to consider its legislative antecedents and history.

    Postal services offences—legislative antecedents

31. The provision by government of postal services available to the general public dates back, in England, to 1635 in the reign of Charles I, when the Royal Mail was made available for that purpose.  Imperial legislation in the reign of Queen Anne[66] created the office of Postmaster-General for the United Kingdom and provided for that official to establish post offices in the colonies.

    [66]Post Office (Revenues) Act 1710 (9 Anne c 11).

32. The first postal legislation in the Colony of New South Wales was the Postage Act 1825 (NSW)[67].  It was a temporary measure to provide for the posting and conveyance of letters until a post office was established under the Postage Act 1835 (NSW)[68].  The New South Wales Government took control of postal services from private entrepreneurs who had been vice-regal appointees.  Nevertheless, various functions of the postal service were contracted out[69]. Postal services developed in each of the colonies. By the end of the 19th century colonial postal services were established throughout the Australian continent and were supported by an array of statutes. Those statutes included offence-creating provisions relating to the posting of letters bearing or containing indecent or obscene, profane or libellous publications[70].

    [67]6 Geo IV No 23.

    [68]5 Gul IV No 24.

    [69]Lee, Linking a Nation:  Australia's Transport and Communications 1788–1970, (2003), Ch 7; available at <http://www.environment.gov.au/heritage/ahc/ publications/commission/books/linking-a-nation/chapter-7.html>.

    [70]Postage Acts Amendment Act 1893 (NSW), s 18; Post Office Act 1890 (Vic), s 118; Post Office Act 1876 (SA), s 91; Post and Telegraph Act 1891 (Q), s 98; Post and Telegraph Act 1893 (WA), s 86; Post Office Act 1881 (Tas), s 107. 

33. In the Australasian Convention Debates at Adelaide in 1897, there was some discussion about whether the Commonwealth Parliament should have legislative responsibility for both postal and telegraphic services[71].  However, the national significance of those services never seems to have been in doubt[72].  A proposal to limit federal power to postal and telegraphic services outside the boundaries of the Commonwealth[73] was unsuccessful.  The example of the United States Constitution was invoked against objections that postal services should remain in the hands of State governments.  Alfred Deakin said[74]:

    "If there has been one great federal success it has been the American post office".

    Postal services were properly seen as a species of national communications infrastructure.

    [71]Official Record of the Debates of the Australasian Federal Convention, (Adelaide), 25 March 1897 at 114; 29 March 1897 at 233–234, 252; 30 March 1897 at 266–267, 318–319, 327–328; 31 March 1897 at 376; 17 April 1897 at 769–774; 22 September 1897 at 1068–1069.

    [72]The national character of postal and telegraphic services was foreshadowed long before Federation.  Earl Grey's Privy Council Committee in 1849 designated the "conveyance of letters" as a matter of federal power.  In 1853 Wentworth's Constitutional Committee identified "postage between the said colonies" as a matter of federal responsibility.  His Memorial in 1857 conferred on a proposed Federal Assembly legislative power with respect to "intercolonial telegraphs and postage".  Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 85, 91 and 94.

    [73]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 559.

    [74]Official Record of the Debates of the Australasian Federal Convention, (Adelaide), 17 April 1897 at 770.

34. A power was conferred upon the Commonwealth Parliament by s 51(v) of the Constitution to make laws with respect to:

    "postal, telegraphic, telephonic, and other like services".

    The Commonwealth was also given exclusive power under s 52(ii) of the Constitution to make laws with respect to:

    "matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth".

    Section 69 of the Constitution provides that on a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth, specified departments of the public service in each State should be transferred to the Commonwealth. One of the departments so specified was "posts, telegraphs, and telephones". The proclaimed date for the transfer of those departments was 1 March 1901.

35. The first Commonwealth legislation relating to postal services was the Post and Telegraph Act 1901. That Act provided, in s 107(c), that it was an offence to send by post any postal article which:

    "has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character".   

    That provision was based upon s 98 of the Post and Telegraph Act 1891 (Q), which was in turn based upon s 4(1) of the Post Office (Protection) Act 1884 (UK).  Section 4(1) prohibited, inter alia, the sending of a postal packet which enclosed "any indecent or obscene" article or had "on such packet, or on the cover thereof, any words, marks, or designs of an indecent, obscene, or grossly offensive character."  The scope of the term "grossly offensive" was discussed in the Committee debate on the 1884 Bill in the House of Commons.  A concern was expressed that the provision could pick up something that "did nothing more than lacerate the feelings of the person receiving it."[75]  That concern was met by the assertion that any tribunal would understand "grossly offensive" as "not offensive to a particular person, but offensive to public morality"[76].

    [75]United Kingdom, House of Commons Debates, 9 August 1884, vol 292, cc370–371.

    [76]United Kingdom, House of Commons Debates, 9 August 1884, vol 292, cc371–372.

36. Reference to the Committee debate in 1884 supports the conclusion available from the text of s 107(c) that the epithet "grossly" conveyed an instruction to courts that criminal liability was confined to conduct in the higher ranges of offensiveness. The Full Court of the Supreme Court of South Australia in Romeyko v Samuels[77] construed "grossly offensive" in s 107(c) as "offensive to a very substantial degree."[78]  The application of both the statutory expression and its judicial translation required an evaluative judgment by the Court.  Such judgments are sometimes informed by a policy or purpose attributable to the statute in which the relevant provision appears.  Where no such purpose can be formulated the evaluative judgment will be informed by the construction of the provision. Romeyko v Samuels may be regarded as an example of such a case. No purposive aspect of s 107(c) particular to postal or telegraphic services was identified in that case as relevant to the application of the term "grossly offensive". In the present appeals the purpose of s 471.12 was said to be illuminated by its history and antecedents.

    [77](1972) 2 SASR 529.

    [78](1972) 2 SASR 529 at 566 per Bray CJ, Bright and Sangster JJ agreeing at 567.

37. The Post and Telegraph Act 1901 was repealed in 1975[79] and replaced by the Postal Services Act 1975 (Cth)[80]. The Act contained no equivalent to s 107(c) of the Post and Telegraph Act 1901; however, it did provide in s 116 that regulations could be made for the specific purpose of prohibiting, restricting, regulating or imposing conditions with respect to the sending by post or by courier service of articles that are indecent, obscene or offensive or contained material of this nature. Regulation 53A of the Postal Services Regulations, made under that Act in 1982, prohibited the sending by postal service of an article containing "matter not solicited by the person to whom it is sent, being matter of an indecent, obscene or offensive nature"[81].  

    [79]Postal and Telecommunications Commissions (Transitional Provisions) Act 1975 (Cth), s 4, Sched 1.

    [80]Enacted following the completion of the Report of the Commission of Inquiry into the Australian Post Office, (1974). 

    [81]Postal Services Regulations (Amendment) 1982.

38. The Australian Postal Commission was incorporated as the Australian Postal Corporation in 1989[82] and was continued in operation by the Australian Postal Corporation Act 1989 (Cth)[83]. Section 85S of the Crimes Act 1914 (Cth) ("the Crimes Act"), the most direct textual precursor of s 471.12, was enacted in 1989[84]. That section replicated the offences previously set out in the Postal Services Regulations. Section 85S provided:

    "A person shall not knowingly or recklessly:

    (a)use a postal … service supplied by Australia Post to menace or harass another person; or

    (b)use a postal … service supplied by Australia Post in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive."

    There were amendments to the text and section numbering in 1997 and 2001 but the phrase "in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive" remained unchanged.

    [82]Postal Services Amendment Act 1988 (Cth), s 5; Commonwealth of Australia Gazette, S402, 20 December 1988.

    [83]Australian Postal Corporation Act 1989 (Cth), ss 12, 13.

    [84]Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 (Cth), s 5.

39. The text of s 85S was drawn in part from s 86 of the Telecommunications Act 1975 (Cth). That section prohibited the use of a telecommunications service for the purpose of menacing or harassing another person. It also prohibited the sending over a telecommunications system of a communication or information "likely to cause reasonable persons, justifiably in all the circumstances, to be seriously alarmed or seriously affronted." The Explanatory Memorandum relevant to s 85S included a statement that the opportunity had been taken to treat Australia Post and the telecommunications carriers consistently[85]. That statement suggested that the level of offensiveness contemplated by s 85S was consistent with serious affront.

    [85]Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Bill 1989, Explanatory Memorandum at 3.

40. In 2002, s 85S of the Crimes Act was repealed and replaced by the first version of s 471.12 of the Code. That section was in the same terms as the present s 471.12 save that it did not contain the words in parentheses in s 471.12(b) and used the passive voice "would be regarded by reasonable persons" instead of the active voice "reasonable persons would regard as being" used in the present version of the section.

41. The Explanatory Memorandum for the Criminal Code Amendment (Anti-hoax and Other Measures) Bill 2002, which enacted s 471.12 in its original form, observed that the new offence drew on the existing offence in s 85S of the Crimes Act but broadened its scope with respect to menacing and harassing material[86].  The Explanatory Memorandum further stated:

    "In practice, the offence would cover material that would make a person apprehensive as to his or her safety or well-being or the safety of his or her property as well as material containing offensive or abusive language or derogatory religious, racial or sexual connotations."

    In the Second Reading Speech for the Bill in the Senate, the Minister observed that[87]:

    "Protecting the safety, security and integrity of Australia's information infrastructure, including postal and courier services, is a priority for this Government.

    The measures contained in this bill will ensure that these important communication services are not compromised by irresponsible, malicious or destructive behaviour."

    [86]Criminal Code Amendment (Anti-hoax and Other Measures) Bill 2002, Explanatory Memorandum at 7.

    [87]Australia, Senate, Parliamentary Debates (Hansard), 11 March 2002 at 440.

42. The appellant Ms Droudis submitted that s 85S marked the advent of a concept of offence that covered a broader range of conduct than that covered by the Postal Services Regulations. That broad coverage was said to have been continued in s 471.12 and could include the use of a postal service inducing anger, resentment, outrage, disgust or hatred. It was broader than the concepts of "alarm" or "affront" in s 86(c) of the Telecommunications Act 1975. It did not take its colour from the words "menacing" or "harassing". Menacing conduct can be offensive. So too can harassing conduct. They offer no logical basis for preferring one construction of "offensive" over another.

43. In this case the legislative history supports the following conclusions:

    •The term "offensive" in s 471.12 has an ancestry traceable to the Post Office (Protection) Act 1884 (UK);

    •The textual setting in which the term "offensive" has been used in successive statutes and regulations relating to postal services has changed from time to time; 

    •The scope of the offence created by s 471.12, in its application to offensive conduct, does not reflect the culmination of a logical progression of regulation or what the Commonwealth called metaphorically a "regulatory trajectory";

    •It is not a purpose of the term "offensive" in s 471.12 to proscribe uses of postal or similar services which convey insults or slights or which are likely to engender hurt feelings;

    •As a corollary of the preceding conclusion it is not a purpose of the offence created by s 471.12 to secure civility or courtesy in communications which use postal or similar services;

    •The meanings of "offensive" as used in s 471.12 are in the higher ranges of seriousness.

    Offensive to reasonable persons

44. The requirement that the prohibited use of a postal or similar service be one "that reasonable persons would regard as being, in all the circumstances, … offensive" imports an objective but qualitative criterion of criminal liability. Similar criteria have been judicially applied to "offensive conduct" in public order statutes notwithstanding the absence of express words of the kind found in s 471.12[88].  The characteristics of the reasonable person, judicially constructed for the purpose of such statutory criteria, have been variously described.  A "reasonable man" in Ball v McIntyre[89] was "reasonably tolerant and understanding, and reasonably contemporary in his reactions."  A reasonable person was said, in the Supreme Court of New South Wales, to be "neither a social anarchist, nor a social cynic"[90].  The reasonable person is a constructed proxy for the judge or jury.  Like the hypothetical reasonable person who is consulted on questions of apparent bias[91], the construct is intended to remind the judge or the jury of the need to view the circumstances of allegedly offensive conduct through objective eyes and to put to one side subjective reactions which may be related to specific individual attitudes or sensitivities.  That, however, is easier said than done.

    [88]Worcester v Smith [1951] VLR 316 at 318 per O'Bryan J; Inglis v Fish [1961] VR 607 at 611 per Pape J; Ball v McIntyre (1966) 9 FLR 237 at 242–243 per Kerr J.

    [89](1966) 9 FLR 237 at 245 per Kerr J; see also the recent decision of the Supreme Court of New Zealand in Morse v Police [2012] 2 NZLR 1 at 19 [38] per Elias CJ, 33 [98] per McGrath J.

    [90]Spence v Loguch unreported, Supreme Court of New South Wales, 12 November 1991 at 11 per Sully J.

    [91]See for example, Johnson v Johnson (2000) 201 CLR 488 at 493 [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; [2000] HCA 48.

45. The "reasonable persons" test in s 471.12 does not specify the assumptions upon which it is to be applied. One assumption might be that the reasonable persons referred to in the section have bare knowledge of the allegedly offending use of a postal or similar service and its attendant circumstances but that it is a use not directed to them and not otherwise affecting them. An alternative assumption is that the reasonable persons are affected by the allegedly offensive use. In the present case that would require the assumption that the reasonable persons are the parents of recently deceased servicemen or women in receipt of the letters the subject of the indictment. The reasons for judgment of Bathurst CJ and Allsop P in the Court of Criminal Appeal posited an emotional reaction by the hypothetical reasonable persons but did not explain its origin[92]. 

    [92](2011) 256 FLR 28 at 39 [44] per Bathurst CJ, Allsop P agreeing at 45 [70]. The perspective from which conduct or language is to be regarded as "offensive" raises difficult issues discussed by the late Professor Joel Feinberg in relation to what he called "profound offense": Feinberg, Offense to Others, (1985), Ch 9.

46. The assumed perspective of the reasonable persons referred to in s 471.12 was not explored in these appeals. The more conservative assumption may be that of a reasonable person who knows of the allegedly offensive use and its attendant circumstances rather than that of a person to whom the allegedly offensive use is directed. In the event, for reasons that follow, it makes no difference to the outcome of these appeals.

47. A further question about the application of the reasonable persons test as formulated in the Court of Criminal Appeal arises from the need to show that such persons would react to the allegedly offensive use with significant anger, resentment, outrage, disgust or hatred.  Such reactions are not to be explained as the outcome of a process of reasoning.  They would involve the assumption, by the tribunal of fact, of some deeply and widely held values or attitudes with emotional content by which the allegedly offensive conduct is to be judged and which are discerned by the tribunal of fact as those of reasonable persons.  Whether or not located in the eye of a reasonable beholder and whether or not narrowly defined, offensiveness is a protean concept which is not readily contained unless limited by a clear statutory purpose and other criteria of liability.

48. It would be useful to be able to identify a purposive framework, beyond that provided by s 471.12 itself, in which to apply the criterion of liability which it creates. The Commonwealth's submission invoked numinous concepts of "unwanted and undesirable intrusions into private spaces" and the preservation of "public confidence" in the use of postal and similar services. Those terms and the invocation of the "integrity of the postal service" have a rhetorical ring about them. The latter term was used in the Second Reading Speech. They do not, however, provide a basis for a workable constraint upon the application of the criterion of offensiveness in s 471.12. Nor, as appears below, do they define with sufficient concreteness a "legitimate end" of the prohibition relevant to the question whether any burden it imposes upon freedom of political communication is permissible under the Constitution.

49. Public order offences relating to disorderly, insulting or offensive behaviour or language have purposes related to the regulation of conduct in or near public places.  However, it is unwise to generalise about them.  In a statute creating such an offence there is a close relationship between its construction and its purpose.  Depending upon whether a low threshold or high threshold construction of the criterion of liability is adopted the prohibition may be directed to maintaining "decorum" in public places[93], upholding community standards and reasonable expectations of the community[94] or preventing conduct productive or likely to be productive of public disorder[95]. 

    [93]Campbell v Samuels (1980) 23 SASR 389 at 391 per Zelling J.

    [94]Khan v Bazeley (1986) 40 SASR 481 at 486 per O'Loughlin J.

    [95]Morse v Police [2012] 2 NZLR 1.

50. Different constructions and correspondingly different formulations of the statutory purpose of s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Q), in its application to insulting words in or near a public place, were apparent in the judgments in Coleman v Power[96].  Gleeson CJ held that "insulting words" extended to the use of language which in the circumstances was "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."[97]  That construction of the prohibition also defined its purpose, which the Chief Justice expressed broadly[98]: 

    "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."

    [96](2004) 220 CLR 1; [2004] HCA 39.

    [97](2004) 220 CLR 1 at 26 [14].

    [98](2004) 220 CLR 1 at 32 [32].

51. McHugh J construed the words according to their broad ordinary meaning.  He did not separately identify a statutory purpose but ultimately rejected the propounded legitimate end of the prohibition, namely avoiding breaches of the peace and removing threats and insults from areas of public discussion, as a justification for the burden imposed by the prohibition on the freedom of political communication[99]. 

    [99](2004) 220 CLR 1 at 54 [103].

52. Gummow and Hayne JJ construed "insulting words" in context as words which, in the circumstances in which they were used, were provocative in the sense that they were intended or reasonably likely to provoke unlawful physical retaliation from the person to whom they were directed or some other person who heard the words uttered[100].  The provision was "not directed simply to regulating the way in which people speak in public"[101] but something more.  Kirby J took a similar approach[102] and observed[103]:

    "It has always been a legitimate function of government to prevent and punish behaviour of such kind."

    [100](2004) 220 CLR 1 at 74 [183].

    [101](2004) 220 CLR 1 at 76 [191].

    [102](2004) 220 CLR 1 at 98 [254].

    [103](2004) 220 CLR 1 at 99 [256].

53. Callinan and Heydon JJ, like Gleeson CJ, took a broader view of the prohibition.  Callinan J held that the legislation was intended to prohibit language that was "incompatible with civilised discourse and passage"[104].  Heydon J also held that the term "insulting words" should be given its natural and ordinary meaning, not limited to words intended to provoke an unlawful physical retaliation[105].

    [104](2004) 220 CLR 1 at 108 [287].

    [105](2004) 220 CLR 1 at 117 [310].

54. As appears from the preceding, and from the other cases mentioned, the identification of the purpose of a particular provision of a statute cannot always precede its construction. Against that background it is necessary to focus more closely upon the text of s 471.12.

    The construction of s 471.12—text and context

55. Section 471.12 is concerned with the use of a "postal or similar service". The breadth of that term as defined in s 470.1 has already been pointed out. It is broader than "postal … and other like services" within the meaning of s 51(v) of the Constitution. The present appeals are concerned with the application of the section to the content of communications said to be made using a postal or similar service as defined.

56. The ordinary meaning of the word "offensive" unconstrained by epithets such as "grossly" is:

    •          Causing offence or displeasure;

    •          Irritating, highly annoying;

    •Repugnant to the moral sense, good taste or the like, insulting[106].

    The New Shorter Oxford English Dictionary also adds the terms "disgusting" and "nauseous"[107].

    [106]Macquarie Dictionary, rev 3rd ed (2001) at 1329.

    [107](1993), vol 2 at 1983.

57. Within the bounds of its ordinary meaning the term "offensive" used objectively, as it is in s 471.12, covers a range of imputed reactions by one person to the conduct of another. It may describe conduct which would cause transient displeasure or irritation and also conduct which would engender much more intense responses. In the Court of Criminal Appeal Bathurst CJ and Allsop P, as discussed earlier in these reasons, construed it as confined to conduct at a threshold defined by the words "calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances."[108] 

    [108](2011) 256 FLR 28 at 39 [44] per Bathurst CJ, 48 [81]–[83] per Allsop P.

58. On the construction of "offensive" adopted by the Court of Criminal Appeal, conduct which a reasonable person would regard in all the circumstances as offensive within the ordinary meaning of that term would not necessarily be offensive for the purposes of s 471.12. There is no novelty in that approach. Kerr J in Ball v McIntyre[109] referred to conduct which was hurtful or blameworthy or improper but not "offensive" within the meaning of s 17(d) of the Police Offences Ordinance 1930–1961 (ACT)[110].  The construction adopted by Bathurst CJ and Allsop P in this case set a higher threshold even than that adopted in Ball v McIntyre, which had followed the formulation by O'Bryan J in Worcester v Smith[111].  In the latter case, which concerned the offence of behaving in an "offensive manner" in a public place contrary to s 25 of the Police Offences Act 1928 (Vic), O'Bryan J said[112]:

    "Behaviour, to be 'offensive' within the meaning of that section, must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person."

    [109](1966) 9 FLR 237 at 241.

    [110]The definition of offensive adopted by Kerr J was followed in subsequent cases including Spence v Loguch unreported, Supreme Court of New South Wales, 12 November 1991 per Sully J; Conners v Craigie unreported, Supreme Court of New South Wales, 5 July 1993 per McInerney J.

    [111][1951] VLR 316.

    [112][1951] VLR 316 at 318; in that case the defendant had deployed banners outside the United States Consulate in Melbourne protesting against the United States military involvement in Korea among other things. The conviction was set aside on the basis that disagreement with a political policy supported by a majority of the community was not offensive within the meaning of s 25.

59. The approach of the Court of Criminal Appeal to the construction of s 471.12, in its application to offensive conduct, was orthodox. The level of offensiveness defined by the Court accorded with the principle of legality in its application to freedom of expression. It accorded with the need to construe a criterion of serious criminal liability relatively narrowly and clearly where the narrow construction was reasonably open[113].  It also accorded with the observations made in Bradley concerning the importance of postal and other services to freedom in the dissemination of information and opinion. In my respectful opinion however, the formulation of the purposes of the provision, expressed in largely metaphorical terms by reference to its application to postal and similar services, was not of assistance in the construction or application of s 471.12 nor in the resolution of the constitutional question. That question, which now falls for determination, is whether s 471.12, construed as the Court of Criminal Appeal construed it, in its application to offensive uses of postal or similar services, impermissibly burdens the freedom of political communication protected by the Constitution.

    [113]See Coleman v Power (2004) 220 CLR 1 at 75 [185] per Gummow and Hayne JJ.

    The validity of s 471.12

60. Freedom of speech is a common law freedom.  It embraces freedom of communication concerning government and political matters.  The common law has always attached a high value to the freedom and particularly in relation to the expression of concerns about government or political matters[114].  Lord Coleridge CJ in 1891 described what he called the right of free speech as "one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done"[115].  The common law and the freedoms it encompasses have a constitutional dimension.  It has been referred to in this Court as "the ultimate constitutional foundation in Australia"[116].  TRS Allan wrote of the "traditional civil and political liberties, like liberty of the person and freedom of speech"[117] and said[118]:

    "The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal."

    [114]Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 at [42]–[48] per French CJ.

    [115]Bonnard v Perryman [1891] 2 Ch 269 at 284.

    [116]Wik Peoples v Queensland (1996) 187 CLR 1 at 182 per Gummow J; [1996] HCA 40.

    [117]Allan, "The Common Law as Constitution:  Fundamental Rights and First Principles", in Saunders (ed), Courts of Final Jurisdiction:  The Mason Court in Australia, (1996) 146 at 148.

    [118]Allan, "The Common Law as Constitution:  Fundamental Rights and First Principles", in Saunders (ed), Courts of Final Jurisdiction:  The Mason Court in Australia, (1996) 146 at 148.

61. The term "implied freedom of communication concerning government and political matters" has been well established in Australian constitutional discourse since the implication was first posited in Nationwide News Pty Ltd v Wills[119] and in Australian Capital Television Pty Ltd v The Commonwealth[120].  However, as Dawson J said in Levyv Victoria[121]:

    "the freedom of communication which is protected by the Constitution is that which everyone has in the absence of laws which curtail it and that freedom does not find its origins in the Constitution at all, either expressly or by implication."

    That observation may be qualified to the extent that the constitutional implication also operates upon the common law[122]. Subject to that qualification, the Constitution imposes a restriction on the extent of legislative power to impose a burden on freedom of communication on matters of government or political concern. The now settled questions[123] to be asked when a law is said to have infringed the implied limitation are:

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

    2.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 Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people?

    [119](1992) 177 CLR 1; [1992] HCA 46.

    [120](1992) 177 CLR 106; [1992] HCA 45.

    [121](1997) 189 CLR 579 at 607; [1997] HCA 31; see also at 625–626 per McHugh J, quoted in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 246 [184] per Gummow and Hayne JJ; [2004] HCA 41; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560.

    [122]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560.

    [123]Wotton v Queensland (2012) 246 CLR 1 at 15 [25] per French CJ, Gummow, Hayne, Crennan and Bell JJ; [2012] HCA 2.

62. In each case the enquiry about the impugned law is, as was submitted for the Commonwealth Attorney-General, systemic.  It is not an enquiry into whether the law places a burden upon freedom to engage in the particular kind of communications in which the appellants are said to have engaged and if so whether that burden was justified.  As Hayne J said in APLA Ltd v Legal Services Commissioner (NSW)[124]:

    "in deciding whether the freedom has been infringed, the central question is what the impugned law does, not how an individual might want to construct a particular communication".

    [124](2005) 224 CLR 322 at 451 [381]; [2005] HCA 44.

63. The first of the two constitutional questions is to be asked by reference to the legal effect and operation of s 471.12 in its application to "offensive" uses of postal and similar services. The prohibition it imposes is defined by reference, inter alia, to the content of a communication made using such services. It is therefore a restriction which can directly affect content. It places in the hands of the Court, mediated by the emotional reactions of imaginary reasonable persons, a judgment as to whether the content is within or outside the prohibition. It applies without distinction to communication of ideas about government and political matters and any other communication.

64. The first respondent submitted that s 471.12 has only an indirect effect upon political communications. The submission pointed to the distinction, recently reiterated in Hogan v Hinch[125], between laws with respect to the restriction of political communications and laws with respect to some other subject matter whose effect on political communications is unrelated to their political nature[126].  That distinction, however, is relevant to the second question going to validity rather than the question whether the law imposes an effective burden upon the implied freedom of political communication.  The plurality in Hogan v Hinch referred to the distinction after having accepted that an affirmative answer should be given to the first question[127]. That is to say a law imposing a direct burden on political communication may be found more readily to fail the criterion of validity defined by the second question than a law whose effect on such communications is indirect. There is nothing in the legal operation or effect of s 471.12 on communications about government and political matters which would defeat its characterisation as an effective burden on the freedom to engage in such communications.

    [125](2011) 243 CLR 506; [2011] HCA 4.

    [126](2011) 243 CLR 506 at 555 [95] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, citing Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 200 [40] per Gleeson CJ, citing in turn Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 169 per Deane and Toohey JJ.

    [127](2011) 243 CLR 506 at 555 [95].

65. The kinds of communications, about government and political matters, caught by s 471.12 were said by the Commonwealth Attorney-General to be "outside the accepted boundaries of Australian political debate and at the outer fringes of political discussion." The potential reach of the section was said to be significantly limited by the circumstances to which it directed attention and the nature of the reasonable person test. The Attorney-General for Victoria submitted that:

    •A reasonable person, for the purposes of s 471.12, would understand that the use of robust means of expression can be a legitimate part of political communication in Australia;

    •As a result the statute only prohibits those uses of the postal services which the tribunal of fact considers, even after having regard to their political context, lie outside the boundaries of robust debate and are therefore "likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances".  

    The Attorney-General for Victoria also referred to the fault element attaching to the circumstance that a communication is "offensive" and the alternative means of political communication left open by s 471.12. Similar submissions were made by the Attorney-General of Queensland and the Attorney-General for South Australia.

66. It may be accepted that the "reasonable person" whose perspective is to be adopted in determining liability under s 471.12 would be aware of the nature of political debate inside and outside parliamentary circles in Australia. The reasonable person would also be endowed with the awareness that participants in political debate in Australia include people who are reasonable, people who are unreasonable and people who are reasonable about some things some of the time and unreasonable about other things at other times. The awareness of the reasonable person invoked under s 471.12 would also be expected to extend to the existence of participants who are civil and courteous in the expression of their views and others who are strident, insulting and offensive as well as those people who may express themselves in varying registers of civility and offensiveness according to the circumstances. These are social facts which would not escape the hypothetical reasonable person.

67. Based on a broad imputed awareness of the nature of Australian political debate and communications, 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. That does not logically preclude the conclusion that a communication within that range is also one which is likely or calculated to induce significant anger, outrage, resentment, hatred or disgust. There may be deeply and widely held community attitudes on important questions which have a government or political dimension and which may lead reasonable members of the community to react intensely to a strident challenge to such attitudes. An example might be the circulation to households and offices of a pamphlet expressing opposition to Australia's involvement in a military conflict which has widespread community support, denouncing the involvement as immoral and asserting that Australian servicemen or women who suffer injury or die in the conflict do so in an immoral and futile cause. If such a pamphlet were circulated at or about the time of the funeral of a deceased serviceman or woman its timing might be a circumstance which would intensify the anger of reasonable persons about it. Examples can be multiplied in respect of different issues of government or political concern. It cannot be said that the constraints imposed on freedom of expression by s 471.12 in its application to "offensive" communications are confined to what were described in the submissions made on behalf of the Commonwealth Attorney-General as "the outer fringes of political discussion." Further, the reaction elicited by an offensive communication may depend upon its source. If emanating from a marginal voice on the fringes of political discussion, it may not be taken seriously enough to induce an emotional reaction in any reasonable person. There are many communications, of which the internet provides more than ample evidence, from what might be described as the "lunar" elements of political discourse. Such communications may not be taken seriously enough by reasonable persons to upset anybody.  Indeed it might be said that a communication, on its face offensive, is more likely to elicit significant anger, outrage, hatred or disgust if coming from a source which cannot be so readily dismissed.

68. The question whether s 471.12 imposes a burden on the implied freedom is answered not only by consideration of the content of the communications it affects but also by the range of mechanisms for making such communications to which it applies. They include:

    •          Delivery of letters, packets and parcels by Australia Post;

    •Delivery of letters, packets and parcels by couriers or packet or parcel carrying services which are "postal … or other like services" within the meaning of s 51(v) of the Constitution;

    •Delivery of letters, packets and parcels by couriers or packet or parcel carrying services which are not postal or other like services.

69. There is nothing on the face of s 471.12 to exclude from the scope of the services it covers courier or packet or parcel carrying services for the delivery of newspapers, magazines, pamphlets, brochures, books, DVDs, CDs or audiotapes to homes or offices or even to distributors of such material, particularly if the delivery service is provided by a constitutional corporation or provided in the course of interstate trade or commerce. The "postal or similar services" covered by s 471.12 extend well beyond services funded, provided or regulated by government and beyond the constitutional concept of "postal … or other like services". There are many communications, the content of which could be regarded by reasonable persons in all the circumstances as offensive, that are conveyed by postal, courier, or packet or parcel carrying services not only to identified individuals but also to large groups of people. As earlier suggested, offensive material might be circulated by subscription or otherwise to recipients whose sympathies lie with the content of that material.

70. The Attorney-General for Victoria submitted that the "reasonable persons" test would take account of:

    •The nature and timing of an impugned communication concerning government or political matters;

    •Whether the communication was targeted to an individual or part of a general circulation or mailout;

    •Whether the communication was made pursuant to a subscription;

    •Whether the communication occurred in the context of a pending election or constitutional referendum.

    The submission, with respect, tended to reinforce the conclusion that the prohibition has a potentially broad application.  The "reasonable persons" criterion, which is linked to imputed emotional reactions to the content of the communication, does not narrow the scope of the prohibition in its legal operation or effect.  At best, assuming the criterion can be applied as proposed by the Attorney-General for Victoria, it may affect the application of the prohibition to particular circumstances.  That conclusion, however, does not support a broad judgment that the prohibition does not impose an effective burden on the implied freedom.

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.

72. Section 471.12 having been found to impose an effective burden upon the implied freedom of political communication, the question arises what if any legitimate end it serves. The legitimate ends enunciated in the Court of Criminal Appeal and by the respondents and interveners were various. They included the protection of persons from being subjected to offensive material, the promotion and protection of postal and similar services that bring material into homes and offices, the regulation of postal services, the protection of the integrity of such services and the protection of those who participate in the constitutionally mandated system of government.

73. Having regard to the scope of the term "offensive" as properly construed and the range of the "postal or similar services" to which s 471.12 applies, it is not possible to define its purpose by reference to common characteristics of such services. In practical terms it is difficult, if not impossible, to distinguish the purpose of s 471.12 from that of a law which makes it an offence to send or deliver offensive communications to anyone by any means. References to the promotion or protection of postal and similar 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. Its purpose is properly described as the prevention of the conduct which it prohibits. That is the prevention of uses of postal or similar services which reasonable persons would regard as being, in all the circumstances, offensive. That should not be regarded as a legitimate end not least because, as explained below, its very breadth is incompatible with its implementation in a way that is consistent with the maintenance of that freedom of communication which is a necessary incident of the system of representative government prescribed by the Constitution.

74. The second question going to the validity of s 471.12 has two limbs. The first is whether the section serves a legitimate end. The second is whether, if so, it serves that end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people. In this case those two limbs collapse into one. The purpose of the prohibition imposed by s 471.12 is as broad as its application. On its proper construction it cannot be applied in such a way as to meet the compatibility requirement. As explained above, the reasonable persons test, even when applied to a high threshold definition of what is "offensive", does not prevent the application of the prohibition to communications on government or political matters in a range of circumstances the limits of which are not able to be defined with any precision and which cannot be limited to the outer fringes of political discussion. Section 471.12, in its application to the offensive content of communications made using postal or similar services, is invalid.

331. The question of legislative intention directs attention to another principle of construction which is to be applied here.  Like the firstmentioned principle, arising from the presumption of constitutional validity, the principle of legality is based upon a presumption which may be sourced in rule of law concepts.  The principle of legality is known to both the Parliament and the courts as a basis for the interpretation of statutory language[368].  It presumes that the legislature would not infringe rights without expressing such an intention with "irresistible clearness"[369].  The same approach may be applied to constitutionally protected freedoms.  In such a circumstance it may not be necessary to find a positive warrant for preferring a restricted meaning[370], save where an intention to restrict political communication is plain (which may result in invalidity).  A meaning which will limit the effect of the statute on those communications is to be preferred.

     [368]Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [21]; [2004] HCA 40.

     [369]Potter v Minahan (1908) 7 CLR 277 at 304; [1908] HCA 63; see also Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 259 [15]; [2010] HCA 23.

     [370]As to which see Pidoto v Victoria (1943) 68 CLR 87.

332. These principles of construction were engaged in Coleman v Power.  Kirby J applied the firstmentioned principle, which his Honour described as a principle of "constitutional conformity"[371]. His Honour said that the word "insulting" should not be given its widest meaning in the context of s 7(1)(d), but should be read narrowly, so that it would not infringe the implied constitutional freedom[372].  Gummow and Hayne JJ said that once it is recognised that fundamental rights are not to be cut down save by clear words, it follows that the curtailment of free speech by legislation proscribing particular kinds of utterances in public will often be read as "narrowly limited"[373].

     [371]Coleman v Power (2004) 220 CLR 1 at 87-88 [227].

     [372]Coleman v Power (2004) 220 CLR 1 at 87 [226].

     [373]Coleman v Power (2004) 220 CLR 1 at 76 [188].

     Section 471.12 read down

333. It follows from the earlier discussion, concerning a contextual construction of s 471.12, that there is no barrier presented to reading it down to apply to a narrower category of offensive communications than would be the case if attention were directed only to the wider meaning of the word "offensive". Contextual considerations and legislative history of the offence are consistent with such an approach. It is unlikely that Parliament intended to prohibit all communications which happen to contain matter which may cause some offence. As Gleeson CJ observed in Coleman v Power[374], legislation concerned with the regulation of communications usually attempts to strike a balance between competing interests. Section 471.12 may be taken to do so by prohibiting communications which are offensive to a higher degree.

     [374](2004) 220 CLR 1 at 32 [32].

334. The process of construction, by reading down, is undertaken with an eye to the requirements of the second limb of Lange, but it is nevertheless a process of construction which is limited by the language and purposes of the statute. The principles of construction referred to above require that s 471.12 be read down so that it goes no further than is necessary in order to achieve its protective purpose, consistent with its terms, without unduly burdening political communication.

335. It might be thought a simple matter to excise political communication from the purview of s 471.12. Such an approach may underestimate the difficulty in determining when a communication is said to qualify as "political". This points to the need for statutory context and direction and here s 471.12 provides none. That is because the section is intended to apply to communications which are offensive to the requisite degree, regardless of subject matter. The legislative history and framework support a construction which applies a degree of offensiveness to the quality of the communication which is intended to be prohibited; they do not support the creation of an exception by reference to its subject matter.

336. The cases concerned with statutory prohibition or regulation of offensive conduct or communications make plain, and the judgments in the Court of Criminal Appeal confirm, that it is well understood that the protection intended to be provided by provisions such as s 471.12 relates to a degree of offensiveness at the higher end of the spectrum, although not necessarily the most extreme. Words such as "very", "seriously" or "significantly" offensive are apt to convey this. It is difficult to accept that this would be insufficient for the purposes of the application of the objective standard of the reasonable person, who may be taken to reflect contemporary societal standards, including those relating to robust political debate.

337. For the purposes of the construction of s 471.12 and the application of the Lange test, it would not seem necessary to go further by attempting to describe what level of emotional reaction or psychological response might be thought likely to be generated by a seriously offensive communication.  It might be necessary to do so when directing a jury charged with finding whether the offence is made out.

338. Juries, and trial judges, often grapple with concepts that are difficult to define with precision. Proof beyond reasonable doubt comes immediately to mind, as does the perception of a reasonable person. Such concepts, although attended by a degree of difficulty in application, are not usually regarded by the courts as incapable of application. Rather it is recognised that juries will require assistance by the directions given by a trial judge. It would be possible to provide sufficient guidance in this way about the limits of the offence comprehended by s 471.12. The examples given in the Court of Criminal Appeal of the type of reaction which an offensive communication might engender[375] are useful to show the level of seriousness of the offence.  One would expect such a communication to be likely to cause a significant emotional reaction or psychological response.  The former may range from shock through to anger, hate, disgust, resentment or outrage, and the latter may include provocation, anxiety, fearfulness and insecurity.  As indicated earlier[376], a range of circumstances may be relevant to the method of use to which the postal service is put.  An exhaustive list is not possible.  Communications with such serious effects may be contrasted with those which cause mere hurt feelings.

     [375]Discussed at [304] above.

     [376]At [261], [288], [318].

339. The comparison drawn by the appellants with the standard set in some of the judgments in Coleman v Power is not useful. The offence there concerned statements made in a public place and therefore raised questions of public order, including the possibility that insulting and abusive statements might provoke violence. Section 471.12 operates in a different sphere and for different purposes. Its purposes are not confined to ensuring the civility of discourse in society. Its protective purposes, and the means by which they are achieved, are to be determined not by reference to Coleman v Power, but by the application of the Lange test.

     The Lange test applied

340. Thus far, the field of operation of the offence contained in s 471.12 has been identified by reference to the quality of the communications subject to it and the degree of offensiveness necessary. The restriction of the offence to higher levels of offensiveness will limit the number of political communications which are caught by it.

341. There is a further restriction on the operation of the section which arises from proof of the fault element of the offence. As was pointed out in argument, the scope of s 471.12 is further confined when regard is had to this element. The fault element that applies to a use of the postal service that reasonable persons would regard, in all the circumstances, as offensive, is recklessness[377].  A person will be reckless if he or she is at least aware of a "substantial risk" that reasonable persons would so regard the use, where it is unjustifiable to take the risk[378].  Intention or knowledge will also satisfy the fault element of recklessness[379].  The requirement of proof of fault therefore excludes from the scope of the offence those cases where the conduct could not be said to be intentional or reckless.

     [377]See Criminal Code, s 5.6(2).

     [378]Criminal Code, s 5.4(1).

     [379]Criminal Code, s 5.4(4).

342. It may also be observed that s 471.12 is not directed to political communication. It only incidentally burdens them in its operation. A distinction has been drawn between laws of this kind and laws which prohibit or restrict communications that are inherently political[380].  The distinction is most relevant in applying the second limb of the Lange test.  As was observed in Wotton v Queensland[381], a law which only incidentally restricts political communication is more likely to satisfy that aspect of the test.

     [380]Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 200 [40]; [2004] HCA 41; Hogan v Hinch (2011) 243 CLR 506 at 555-556 [95]; Wotton v Queensland (2012) 246 CLR 1 at 16 [30], 30 [78].

     [381](2012) 246 CLR 1 at 16 [30].

343. Nevertheless, s 471.12 "effectively burdens" such communications for the purpose of the first limb of the test. Political communication which is offensive within the meaning of the section will be penalised, and may be deterred for that reason. It may be accepted that an effect upon political communication which is so slight as to be inconsequential may not require an affirmative answer to the first limb enquiry, but it cannot be suggested that s 471.12 falls within this category, even if its likely effect is hard to quantify. Once a real effect upon the content of political communication is seen as likely, attention must be directed to the second limb of the test. That is because the evident purpose of Lange is to require a justification for a burden placed upon the freedom[382].  This is not to say that the level of the restriction or burden which is imposed is not relevant.  Lange itself shows that it is; but it is a question to be addressed in connection with consideration of the second limb of the Lange test.

     [382]Roach v Electoral Commissioner (2007) 233 CLR 162 at 199 [85] (referring to a "substantial" reason); Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 at 478 [105], quoting Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 477.

344. The second limb of the Lange test asks whether s 471.12 is "reasonably appropriate and adapted" to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative government. In Lange it was said that there was no need to distinguish between the concept to which the phrase "reasonably appropriate and adapted" might give expression and proportionality[383].  Given that Lange most clearly involves proportionality analysis, the question arises whether the use of the term "reasonably appropriate and adapted" should be continued in connection with the Lange test, or in other areas where proportionality analysis is employed such as s 92 of the Constitution.

     [383]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562, 567 fn 272.

345. It has been observed[384] that the phrase "reasonably appropriate and adapted" was imported into Australian constitutional proportionality case law from a judgment of Marshall CJ given in 1819[385].  It is cumbersome and lacks clarity of meaning and application as a test.  The only real affinity the phrase bears to a test involving proportionality analysis is the employment of the word "reasonably", but even then it does not describe how, and by reference to what factors, it is intended to operate.  The phrase provides no guidance as to its intended application and tends to obscure the process undertaken by the court.  Its use may encourage statements of conclusion absent reasoning[386].  It cannot be denied that Lange involves a level of proportionality analysis, albeit one which is to be applied in the setting of the Australian Constitution.  So much was said in Lange.

     [384]Coleman v Power (2004) 220 CLR 1 at 90 [234] per Kirby J; Rowe v Electoral Commissioner (2010) 243 CLR 1 at 133-134 [431]-[435] per Kiefel J.

     [385]McCulloch v Maryland 17 US 316 at 421 (1819).

     [386]In Coleman v Power (2004) 220 CLR 1 at 90 [234], Kirby J described it as involving "a ritual incantation".

346. In the setting of the Australian Constitution, a system of representative government is the constitutional imperative upon which the implied freedom is founded.  The proportionality analysis in Lange is directed to determining whether the freedom is illegitimately burdened.  The analysis is both informed and constrained by that purpose.  The use of proportionality analysis is a rational response to the enquiry as to how the effect upon a freedom which is not absolute may be tested.  The term proportionality used in this setting does not imply, without more, a proportionality analysis identical to that employed in other constitutional settings, although it may be possible to draw comparisons which are valid.  Nevertheless it is an analysis based in reasonable proportionality and it would be preferable, to avoid confusion and for clarity, to identify the process by its name and explain how it is applied.

347. The second limb of Lange looks, in the first place, to whether the law is proportionate to the end it seeks to serve.  In Lange, it will be recalled, once the common law of defamation was adapted it was regarded as going no further than was necessary having regard to the legitimate purpose of protection of reputation[387].  Where there are other, less drastic, means of achieving a legitimate object, the relationship with the legislative purpose may not be said to be proportionate[388], at least where those means are equally practicable and available[389].  Given the proper role of the courts in assessing legislation for validity, such a conclusion would only be reached where the alternative means were obvious and compelling, as was the Tasmanian legislation in Betfair Pty Ltd v Western Australia[390].  In such circumstances the means could not be said to be reasonably necessary to achieve the end and are therefore not proportionate[391].

     [387]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572-573, 575.

     [388]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568, where the Court referred to the example of Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.

     [389]North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 616; Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 306; Rowe v Electoral Commissioner (2010) 243 CLR 1 at 134 [438].

     [390](2008) 234 CLR 418 at 479 [110]; see also North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 608.

     [391]North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 616; Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 at 477 [102].

348. The protective purpose of s 471.12 is directed to the misuse of postal services to effect an intrusion of seriously offensive material into a person's home or workplace. It is not possible to further read down the degree of offensiveness of a communication which is to be the subject of the offence and retain a field of operation for the section consistent with its purpose. It follows that the section, so construed, goes no further than is reasonably necessary to achieve its protective purpose.

349. A purpose of protecting citizens from such intrusion is not incompatible with the maintenance of the constitutionally prescribed system of government or the implied freedom which supports it. Section 471.12 is not directed to the freedom. By way of analogy, it will be recalled that in Lange the protection of reputation was not considered to be incompatible.

350. That leaves the question of whether the section imposes too great a burden upon the implied freedom by the means it employs.  This assessment reflects an acceptance that some burden may be lawful.  In Coleman v Power, McHugh J said that a law could validly impose some burden but nevertheless leave political communication "free".  It would be free if the burden was not unreasonable[392].  A test of proportionality is again invoked.

     [392]Coleman v Power (2004) 220 CLR 1 at 53 [100].

351. The appellant Monis submits that s 471.12 constitutes a "very substantial fetter" on discussion of political matters absent provision for defences of the kind that are available to a defendant in an action for defamation, such as the statutory defence of qualified privilege[393], which applies a test of reasonableness to the defendant's conduct.  An allied submission refers to what had been said in Lange in that regard.  These submissions draw in part on McHugh J's criticism of the provision considered in Coleman v Power, which provided no defence to the charge of using insulting words in, or within the hearing of, a public place[394]. However, that provision was very different from s 471.12. Having regard to the elements of the offence in s 471.12, considerable ingenuity would be required to conceive the field of operation of a defence that the accused's use of the postal service was a reasonable communication for the discussion of political matters. The appellant Monis' submissions overlook the circumstance that before any consideration of a defence could arise, the jury must have determined both that the postal service was used in a way that a reasonable person, taking into account all the circumstances, would regard as offensive, and that the accused was aware of the substantial risk that the use would be so regarded by a reasonable person and unjustifiably took that risk. And as to common law defences to defamation, such as qualified privilege, where the issue of malice may arise, the requirement of proof for an offence under s 471.12, that the defendant's conduct be intentional or reckless, may leave little room for their operation.

     [393]Defamation Act 2005 (NSW), s 30.

     [394]Coleman v Power (2004) 220 CLR 1 at 33 [36], 41-42 [69]-[71].

352. It has earlier been observed that the effect of s 471.12 upon political communication is incidental. Further, communications of the kind which are prohibited by s 471.12 are limited to those which are of a seriously offensive nature. This does not suggest an effect upon the freedom which could be regarded as extensive. It does not prevent communications of a political nature which do not convey such offensive matter. The observations of Brennan J in Nationwide News[395] are apposite. His Honour said with respect to the implied freedom that the Constitution may be taken to prohibit legislative or executive infringement of the freedom to discuss political matters, except to the extent necessary to protect other legitimate interests. It prohibits a restriction which substantially impairs the opportunity for the Australian people to form the necessary political judgments.

     [395]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 50-51.

353. Section 471.12 does not impermissibly burden the implied freedom. The Lange test is satisfied. Section 471.12 is valid.

     Conclusion and orders

354. The appeals should be dismissed.  There should be no order for costs.  None was made by the Court of Criminal Appeal, no doubt because of the nature of the matter.