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Editors --- "DownUnderAllOver: Developments around the country" [2004] AltLawJl 77; (2004) 29(5) Alternative Law Journal 255

Developments around Australia

Federal Developments

What 'right' to free speech?

On 1. September 2004 the High Court, by the narrowest of margins, ruled that a Townsville protester had been wrongly convicted of using 'threatening, abusive, or insulting words' under" Queensland vagrancy legislation when he called a policeman 'a corrupt police officer' in a public place. While related charges of assault and obstructing arrest were upheld, the Court's decision (Coleman v Power [2004] HCA 39) appears to be an affirmation of the right to freedom of speech in Australia. This reading of the case, however, requires some heavy qualification, as another of the same protester's run-ins with the law attests.

Patrick Coleman, a former law and politics student at James Cook University, was convicted five years ago of breaching local Townsville by-laws when he gave an unscheduled political speech in the local mall. The by-law breached by Coleman, which continues to exist to this day, requires people wishing to make public addresses in the mall to first obtain written permission from the Council. Two years ago, the High Court refused to hear an appeal from that case.

So exactly what is the extent of the right to freedom of speech in Australia? The short answer is that no-one knows. The 'implied constitutional freedom of communication' is the only real protection of freedom of speech in Australia, the meaning of which the High Court continues to debate. Australia has no explicit constitutional or even legislative statement protecting free speech (although one exists now in the ACT), making us highly unusual. 'In this respect', as justice Kirby wrote in his judgment, 'Australia's constitutional arrangements are peculiar and now virtually unique'.

The implied constitutional protection, which encouraged the majority judges to decide that Coleman's allegation of corruption was not 'insulting', is an awkward beast. It protects only q:ertain kinds of speech, or more correctly invalidates only certain kinds of laws, namely those that are not 'compatible with "tlhe maintenance of the constitutionally prescribed system of representative and responsible government'. In other words, our constitutional protection of free speech amounts to a promise only that laws that unduly inhibit 'political' speech will be &!allowed.

There is no surprise that the public has little idea what this means in practical terms. Even the High Court is unsure, as the interchange between two of the judges attests. In response to conservative justice Heydon's statement about what constitutes defensible political speech, justice Kirby pulled no punches, arguing that justice Heydon's 'chronicle appears more like a description of an intellectual salon where civility always (or usually) prevails. It is not, with respect, an accurate description of the Australian governmental and political system in action.'

The result of the case is that we now know that calling a police officer 'corrupt' is not 'insulting'. But beyond that, we are little the wiser about the extent of our limited constitutional 'right'. Five years ago, when Coleman was convicted for making his unscheduled address in the Townsville mall, the local by-law that he breached was found to be valid, even though Coleman's speech was directly political (indeed one of the themes of his address was to call for the adoption of a Bill of Rights). The local by-law was seen to be acceptable because it only stopped him making his speech in a small part of Townsville (the public mall), not elsewhere. [Ed: see also J Chesterman, 'Mr Coleman is Not Entitled to Be an Agitator' (2000) 25(4) Altemattve Law Journal 191.]

Now, as a result of the more recent High Court decision, he can stand in the mall and call police corrupt and he won't be guilty of breaching vagrancy legislation (which has been amended anyway since the case first, went to court). But if other people hear him he may well be sued for defamation. And if enough people congregate to hear him, and he is seen to be making a public address, he will again be in breach of the local by-law, and will be back in the Magistrates Court.

JOHN CHESTERMAN teaches political science at the University of Melbourne, and is currently on sabbatical at the School of Indigenous Australian Studies, James Cook University.

Northern Territory

Sentencing and people smugglers

Justice Mildren of the Northern Territory Supreme Court recently considered the proper sentence for the offence of people smuggling (R v AI Hassan Abdolamir Al Jenabi, <http://> ). Midway through his trial the accused changed his plea to guilty on two counts and asked for one other count to be taken into consideration. Three boats were involved and had carried about 300 passengers. The boats had landed at Ashmore Reef and the authorities immediately picked up the passengers and crew. The events took place over a period of about 12 months. The judge noted the role of the accused:

... I find that he was heavily Involved in the offending. He was at the very least the officer in command 1n the field and he had the power to negotiate the price. He exercised a great deal of control over each operation.

He went on to note that Parliament considered people smuggling to be a very serious matter and had provided for long maximum sentences. He said that any sentence he imposed must reflect this. He also felt that the court should attach

considerable .weight to general deterrence. He accepted that such offences were no longer prevalent and that these had not been clandestine journeys planned to land people on the coast undetected by police and other authorities.

The accused was 33 and had no previous convictions. He had suffered cruelly under Saddam Hussein's regime when both he and his father had been incarcerated for many years. He had developed a kidney problem when detained in the notorious Abu Ghraib prison in Iraq and while awaiting extradition to Australia from Thailand he had contracted TB. The judge accepted that a primary motivation for his involvement in the smuggling ring was a desire to get his own family settled in Australia. However, he noted that he also made his living from arranging the operations.

Having weighed all the factors he imposed concurrent sentences of six and eight years and set the non-parole period as four years. He backdated the sentences to July 2002 when the accused had been first arrested in Thailand pending extradition.

KEN BROWN is a retired lawyer.


Judicial immunity? We didn't think of that ...

Previous columns have addressed the travails of Di Fingleton, the former Chief Magistrate convicted for retaliation against a witness. The 'witness' was a fellow magistrate, Barry Gribbin, who provided an affidavit supporting another magistrate in her civil action against Fingleton concerning an undesired transfer. Fingleton sent an email to Gribbin accusing him of disloyalty and demanding that he show cause why he should remain in the position of co-ordinating magistrate. The Court of Appeal rejected Fingleton's appeal against conviction, but her sentence of one years imprisonment was suspended after six months (R v Fmgleton [2003] QCA 266).

Fingleton completed her sentence in December last year, but is pressing on with a legal challenge to her conviction. She received encouraging news on 8 October 2004 when the High Court granted her special leave to appeal against her conviction ([200] HCATrans 380). Remarkably, it seems the appeal will tum on the meaning of 'judicial immunity' provisions applicable under the Cnminal Code and the Magistrates Act 1991, a point not previously raised at trial or in the Queensland Court of Appeal. The issue is whether the email sent by Fingleton to Gribbin was 'the performance or exercise of an administrative function or power' attracting immunity from criminal prosecution. It was left to the High Court to write to the Director of Public Prosecutions and Fingleton's defence team prior to the hearing of the special leave application to alert them to the relevance of the 'immunity point'. Justice McHugh found it 'amazing that this point was not recognised in Queensland'. There is the possibility that the immunity point was considered but, for whatever reason, not pursued by Fingleton's defence team. In any event, stay tuned for the concluding chapter, with the High Court to decide the appeal next year.

The High Court, 1930s Germany and Foucault

Regular readers will remember the case of Barry Fardon, a convicted rapist subjected to an order for continuing detention following the expiry of his prison sentence, on the basis that there was an 'unacceptable risk' that he would commit a serious sexual offence if released. In a case as interesting for what it reveals about judicial style as the constitutional niceties it addresses, the High Court has recently upheld the validity of the Dangerous Prisoners (Sexual Offenders) Act 2003, under which Fardon is detained ([2004] HCA 46). Justice

Kirby, the lone dissentient. expressed concern that acceptance of such a statute opens the door to even more draconian legislative action, invoking legislation from 1930s Germany which resulted in the incarceration of political prisoners and 'undesirables'. In defending the constitutional validity of the Act, Chief Justice Gleeson felt moved to acknowledge '[s]ubstantial questions of civil liberty', but argued that the case turned on a narrow constitutional point And, in what may be a first, the work of Foucault is now influencing the High Court, with Justice Gummow citing Foucault's lectures from the 1970s!

STEVEN WHITE teaches law at Griffith University.

New South Wales

Draft Bill addresses employer monitoring of e-mail and Internet use

The draft Workplace Surveillance Bill, currently being circulated by the NSW Government (although it has not yet been introduced into Parliament), could change the way employers monitor employees' Internet and e-mail usage.

While the Bill covers a number of different means of surveillance in the workplace, the most topical is that of monitoring employees' use of emails and the Internet


The Bill provides that an employer cannot prevent an employee from accessing any website unless it has policy on Internet access and the employee has been notified of it The employer must also be acting in line with that policy if it restricts access to any website.

Notification must occur via the computer that the employee is using for Internet access, at te time of logging on to the computer, or: when they start a program to access the Internet

Although not specifically stated in the Bill, this may mean that employees must be notified of the employer's Internet policy every time they access the Internet on their computer.

This of course will be unnecessary if the employer does not block employees' access to certain websites.


The Bill also provides that an employer cannot block any emails sent to its employees unless there is a policy on email use and the employer is acting in compliance with that policy. The employee must be notified of the policy, again by the same means.

The employee must also be immediately notified their email has been blocked, unless one of the exemptions apply which include spam, or the contents of the email are offensive or designed to menace or harass. Contraventions of both of these provisions could lead to penalties of up to $5500.

Where is 'work'?

The Explanatory Note to the Bill states +ht one of its aims is to 'restrict and regulate the blocking by employers of emails and Internet access of employees at work'. The phrase 'at work' is defined to mean 'a workplace, or at any other place while working'. Accordingly, it would seem that this could include where an employee was working from home on their personal computer, and sending emails from their work email account.

In a case such as this, it is arguable that an employer could be penalised for blocking an employee's email without notifying the employee of the email policy on their home computer.

Going forward

If the Bill is to be passed in its current form, there are many issues that require clarification, including the times at which an employee must be notified under the Act. The form of the notification also needs clarity-will it be sufficient for employees to be notified that there is a policy in existence and provided with a short summary, or, will the entire policy need to be shown to employees every time they log on or access the relevant program? The latter approach may cause problems. It opens the way for an argument that an employee was :not properly notified of the policy, since they could not be reasonably expected to read a (say) two-page policy and its amendments every time they use email or the Internet. Perhaps employees will need to be notified of every change to the policy by means of a separate notification.


South Australia

All good things come to those who wait?

If it's true that 'patience is a virtue', South Australians wanting housing law reform must be saintly. They've certainly done the waiting!

In late 2002, the South Australian Government announced a review of the Residential Tenancies Act 1995, published an Issues Paper and required submissions by 28 February 2003. Since thef1 the public has heard little more. It seems the response will be three tranches of law reform. Some protection for caravan park residents will be included in the first phase. However, no timeline has been specified.

There are bonuses from such a leisurely process. It is possible to include reforms whose desirability was not apparent earlier. OnE! example is the issue raised by the District Court in Wright v Weston Raine and Horne (6 February 2004), where the Residential Tenancies Tribunal's practice of issuing self-executing conditional orders for rent arrears was questioned. Landlords and agents could enforce an order simply by telephoning the bailiff if a specified payment date was missed. Tenants considered it draconian. The review offers a chance to strike a new balance in such cases.

Reforms could now reflect the strategic directions of the 'imminent' State Housing Plan. Also much delayed, this Plan is now expected by early 2005 and promises to shape state housing policy for the next decade. 'Home' for many is now long term private rental, boarding house or caravan park accommodation; the law should reflect this. Whether additional time will be sufficient to-bridgr portfolio boundaries and align the two reforms is a quite different question!

MICHELE SLATIER teaches law at Flinders University.


The resignation of Richard Butler-a Tasmanian fiasco

The resignation of Richard Butler was a shambles in which the stat¢ institutions involved reached new levels of incompetence.

The Premier

The Premier treated the governorship as something he may bestow or withdraw as he sees fit. Once he decided the Governor was unsuitable, he did not consult with Cabinet let alone the Opposition, but sought to persuade the Governor to resign. Thus his actions were seen as political.

The Premier offered no constitutional justification for obtaining the Governor's resignation, indicating that the Premier may hire and fire Governors at will. This is dangerous, because the Governor needs independence to exercise the reserve powers.

The Premier committed the state to pay the Governor $650 000. Little justification was offered for the payment.

The Premier misled Parliament about the payment, which he described as ex gratia. It was not, as the commitment to pay was embodied in a deed and Mr Butler provided consideration, waiving all legal claims against the state in return for the payment. As Mr Butler had no claim for wrongful dismissal, holding office at Her Majesty's pleasure, it seems he had no claims to waive.

The Opposition

Before the resignation, the Opposition attacked the Governor as if he were the holder of a political office open to political attack, weakening the Governor's apolitical status.

After the resignation, the Opposition suggested the Premier had bargained for public office, a crime, and demanded a police investigation. This view was not supported with independent legal advice.

The Solicitor-General

The Solicitor-General advised the Premier during the resignation negotiations and drafted the terms on which the Governor resigned. He later advised the Police that the Premier had committed no crime, and advised the Auditor-General that the agreement to pay the Governor was lawful and that there was an appropriation, the Treasurer's reserve, from which payment could be made. He saw no conflict of interest in advising such disparate clients on the same matter.

The Police

After the Opposition referred the matter to the Police on the grounds that there may have been corrupt bargaining for public office, the Police declined to investigate. They accepted the Solicitor-General's opinion that no crime had been committed, although they knew that the Solicitor-General had been involved in the negotiations.

The Auditor-General

When asked to review the lawfulness of the payment, the Auditor-General relied on the advice of the Solicitor-General, although he knew of the Solicitor-General's role in the negotiations.

The Legislative Council

There was no debate and only one question on the matter in the Upper House.

Such amateurism suggests that Tasmania no longer deserves to be a separate state.

MICHAEL STOKES is Editor, journal of Law and Information Science, Law School University of Tasmania


The homeless in court

'Frightening and unfair' is the impression many homeless defendants have of their experience of the court process, a report has found.

The report, entitled Improving the Administration of Justice for Homeless People in the Court Process, is the result of a study which, for the first time, asked over 50 homeless and formerly homeless people who have faced court about their experiences.

The report was a joint initiative of the PILCH Homeless Persons' Legal Clinic and the Council to Homeless Persons, and was launched in Melbourne in September by Ian Charles, a consumer advocate who has previously experienced homelessness.

The Report finds that homeless people have particular difficulties in the court process and calls for a human-rights-focused approach to the administration of justice. These difficulties occur at all stages of the process:

• at the time of charge or fine- more than 75% of those surveyed had been fined or charged for behaviour directly due to their homelessness

• before court – people sleeping rough or in temporary or transient accommodation reported that it is difficult to keep track of court dates and organise lawyers

• at court - homeless people considered that there was a need for enhanced judicial education about the nature, extent, causes and consequences of homelessness. Participants also noted that court processes and procedures may need to be flexible or adapted to the needs of homeless people. As one participant put it, 'I would have felt much better saying "Your Honour" if I'd had a shower and was in clean clothes'

• after court - linkage to social services was identified as a problem. They [the courts] say they'll link you up with this and they'll link you up with that, but then where is everyone? There's no support.'

The main recommendations of the Report are:

• government funding for and appointment of a Homeless Persons' Liaison Officer within the existing Magistrates Court framework

• creation of a specialist court list and outreach programs to assist homeless people.

PHILIP LYNCH is Coordinator of the PILCH Homeless Persons' Legal Clinic.

Western Australia

Reform of anti-vilification laws – WA's bid to be toughest

The Western Australian Government intends to broaden the scope and toughen the sanctions of the state's anti­vilification laws. In August 2004, the Equal Opportunities Commission (WA) and the Office of Multicultural Interests of the Government of WA published a consultation paper 'Racial and Religious Vilification' which set out a number of options for reform. While the consultation process was still under way, the Labor Government introduced a Bill into the WA Parliament to replace the existing race hate offences, which are regarded as largely ineffective. The Government's swift response follows a spate of racially motivated arson attacks on Chinese restaurants, racist graffiti and poster campaigns, and, most recently, threats against prominent leaders, including WA Attorney-General, Jim McGinty.

If enacted, the reform would create two sets of criminal offences, one dealing with incitement of racial animosity and racist (sic) harassment, and the other with racial harassment itself. Each set of offences would be two-tiered, depending on whether intent or likelihood of the proscribed effect can be proven. The definition of the new term 'animosity' encompassed, in its original version, 'hatred, serious contempt, abuse or severe ridicule'. The proposed maximum penalty for a person acting with the intention to incite racial animosity is 14 years imprisonment, and is thus substantially more severe than for comparable offences in any other Australian jurisdiction.

The Opposition strongly criticised the breadth of the offences relating to incitement and also the draconian penalties provided for them. It expressed concern that the new offences were open to abuse and also subjected 'colourful vernacular' such as 'porn' and 'wog' to potentially severe criminal sanctions. During the parliamentary debate, the Government agreed to re-define the prohibited conduct. 'Animosity' is now defined as meaning 'hatred or serious contempt'. At the same time, however, the incitement offences have been extended to also cover incitement to racist harassment, with 'harass' including 'to threaten, seriously and substantially abuse or severely ridicule'. The maximum penalties are left unchanged. As a result, it remains possible that a person who intentionally stirs up severe ridicule of a person as a member of a racial group is liable to 14 years imprisonment. This worrying latitude and the unprecedented severity of the penalties have led the Opposition to continue to reject this part of the Bill. Another amendment to the Bill, which has found bi-partisan support, adds racial hostility or motivation as a circumstance of aggravation to assaults, threats and criminal damage. The amended Bill has passed through the Legislative Assembly and is now before the Legislative Council.

Further reform options discussed in the consultation paper are a new offence of religious vilification (which already exists in Queensland, Tasmania, Victoria) and the creation of civil remedies for victims of racial and religious vilification. The strengthening of the existing laws was greeted by ethnic and religious community leaders (even though not necessarily in the proposed form) but WA Senator Brian Greig urged that sexuality hate-speech should not be overlooked and called for the inclusion of vilification on the basis of sexual orientation.

NORMANN WITZLEB teaches law at the University of Western Australia.

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