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Supreme Court of Victoria |
Last Updated: 21 March 2017
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
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ATTORNEY GENERAL FOR THE STATE OF VICTORIA Intervener
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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JUDICIAL REVIEW AND APPEALS – Application for a review of a decision of a Judge of the County Court of Victoria – Law prohibiting the display of obscene figures in public places – Whether provision inconsistent with the implied freedom of political communication – Meaning of ‘obscene’ – Summary Offences Act 1966 s 17(1)(b) – Application dismissed.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Khor & Burr Lawyers
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For the Second Defendant
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Office of Public Prosecutions Victoria
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For the Intervener
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Ms MJ Richards SC with
Ms S Gory |
Victorian Government Solicitor’s Office
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Introduction
1 On 5 August 2014, the plaintiff was convicted in the Magistrates’ Court of Victoria at Melbourne of the charge of displaying an obscene figure in a public place contrary to s 17(1)(b) of the Summary Offences Act 1966. The plaintiff appealed her conviction to the County Court of Victoria and, on 19 November 2015, Lacava J found the charge proven. His Honour delivered written reasons for his decision.[1]
2 At the commencement of the trial in the County Court, Lacava J gave the prosecution leave to amend the wording of the charge to read as follows:
The accused at East Melbourne on 16 February 2013 did display obscene figures in a public place, namely the footpath outside the East Melbourne Fertility Clinic.
3 The charge alleged an offence contrary to s 17(1)(b) of the Summary Offences Act. Section 17(1) provides as follows:
(1) Any person who in or near a public place or within the view or hearing of any person being or passing therein or thereon –(a) sings an obscene song or ballad;
(b) writes or draws exhibits or displays an indecent or obscene word figure or representation;
(c) uses profane indecent or obscene language or threatening abusive or insulting words; or
(d) behaves in a riotous indecent offensive or insulting manner -
shall be guilty of an offence.
4 Before his Honour, Senior Constable Brenton Walker gave evidence that on the day of the offence, he attended the Melbourne Fertility Clinic in Wellington Street, East Melbourne, where he saw the plaintiff holding placards. Each placard displayed a photograph of a foetus with another object and some text. One of the photographs showed the head of a foetus on top of a one dollar coin with the text ‘Blood money’. The other photograph showed a foetus and part of a human finger with the text ‘This is your choice’.
5 There was no issue between the parties that the plaintiff was displaying the figures in a public place.
6 Senior Constable Walker gave evidence that the footpath outside the premises of the East Melbourne Fertility Clinic in Wellington Street was regularly used as a place of protest by those opposed to the work of the clinic, and also by those who supported its work.
7 In the Reasons, Lacava J described the issues before him as twofold:
(a) whether the figures displayed were obscene within s 17(1)(b) of the Summary Offences Act; and
(b) whether s 17(1)(b) of the Summary Offences Act applied in all of the circumstances.
8 After detailed consideration of the relevant case law, Lacava J held that the figures displayed by the plaintiff in the context of a protest outside the clinic, when viewed objectively, were obscene because they might properly be described as disgusting.[2]
9 No issue is taken with this part of his Honour’s judgment.
10 Judge Lacava next turned to ‘the human rights issues’. His Honour identified five general principles and recorded that he was asked to hold that s 17(1)(b) of the Summary Offences Act should be ‘struck down’ because it offended one or other of these principles.[3]
11 The Reasons record the plaintiff’s submission that she was displaying the placards on the footpath outside the clinic in exercise of her implied constitutional right of freedom of political communication.[4] She argued that, over time, the place where the alleged offence occurred had become a known place of political protest by groups of persons both supporting and opposing abortion. A finding that the figures displayed by her were obscene would deprive her of ‘her most potent weapon in her political debate in relation to the appropriateness of terminations of human foetuses’.[5]
12 In response to this submission, Lacava J held as follows:[6]
There was some evidence that groups of people both for and against abortion regularly protest at the place where the appellant [plaintiff] is alleged to have offended. I am not satisfied that evidence in any way affects the fact that the footpath outside the relevant premises in Wellington Street is, and remains, a public place and subject to the operation of s 17 of the Act. The evidence does not show this part of Wellington Street, East Melbourne to be a place where political views are expressed.I am not satisfied on the facts of this case that what the appellant [plaintiff] was displaying could properly be characterised as political communication. That which was displayed by the appellant [plaintiff] was not directed at government or those charged with legislative responsibility. In my view, it was nothing more than a communication directed squarely at those who operate the clinic in Wellington Street and those who attended as patients. Section 17 of the Act exists for the purpose of ensuring, where possible, good order in public places such as the footpath in Wellington Street. In the circumstances here, proper application of the provision does not, in my view, burden in an inappropriate way the appellant’s [plaintiff’s] right to political communication and is thus enforceable.
13 The primary judge held that the application of s 17(1)(b) to the plaintiff, on the facts of the case, was not inconsistent with the implied freedom of political communication.[7] The provision, the purpose of which is ‘to protect public order from the display of obscene figures’, did not, according to his Honour, ‘burden in an inappropriate way’ the plaintiff’s right to political communication.[8]
14 His Honour found the charge proven on the evidence.
15 The plaintiff has now brought an application for judicial review seeking the following relief:
(a) an order in the nature of certiorari that her conviction for the charged offence in the County Court be set aside;
(b) an order in the nature of mandamus directing the County Court to acquit her of the charged offence.
16 In the alternative to a directed acquittal, the plaintiff seeks an order in the nature of mandamus that the County Court hear and determine her appeal against the conviction according to law.
17 The grounds upon which certiorari is sought to quash the conviction are as follows:
(a) The judge erred in holding that in order for what the plaintiff was displaying to be properly characterised as political communication, it had to be directed at government or those charged with legislative responsibility;
(b) The judge erred in rejecting the plaintiff’s submission that the construction of s 17(1)(b) of the Summary Offences Act contended for by the prosecution meant that the section effectively burdened the implied freedom of political communication and was not reasonably appropriate and adapted to serve a legitimate end in a manner which was compatible with the maintenance of the constitutionally prescribed system of representative government;
(c) The judge erred in his description of the implied freedom, namely, that ‘the implied freedom may be taken to prohibit legislative or executive infringement of freedom to discuss political matters, except to the extent necessary to protect other legitimate interests’;
(d) The judge erred in failing to consider all of the questions he was bound to consider in deciding whether s 17(1)(b) of the Summary Offences Act was valid, namely:
(i) Did the law effectively burden the implied freedom of political communication in its terms, operation or effect?
(ii) If the answer to the first question was yes, whether the purpose of the law and the means adopted to achieve that purpose were legitimate, in the sense that they were compatible with the maintenance of the constitutionally prescribed system of representative government?
(iii) If the answer to the second question was yes, was the law reasonably appropriate and adapted to advance that legitimate object?
(e) The judge erred in finding that the relevant portion of Wellington Street was not shown to be a place where political views were expressed in circumstances where he wrongly refused to admit evidence as to the content of the protests and the plaintiff’s reasons for her actions.
18 The ground upon which mandamus is sought is that s 17(1)(b) of the Summary Offences Act is invalid as effectively burdening the implied freedom of political communication and the purpose of s 17(1)(b) and the means adopted to achieve that purpose are not legitimate, in the sense that they are not compatible with the maintenance of the constitutionally prescribed system of representative government and/or not reasonably appropriate and adapted to any legitimate purpose.
19 The grounds upon which the alternative order for mandamus is sought are the same as those supporting the application for certiorari. The plaintiff submits that the judge below erred and that s 17(1)(b) of the Summary Offences Act is invalid as impermissibly burdening the implied freedom of political communication under the Constitution.
20 The plaintiff challenges the validity of the whole of s 17(1)(b). However, she was charged with and stands convicted of displaying obscene figures in a public place. That part of s 17(1)(b) that prohibits the display of obscene figures is readily severable from the part that prohibits other conduct, such as the display of indecent figures. Having regard to the charge against her, the plaintiff’s attack on the validity of s 17(1)(b) must be directed to that part of the provision that makes it a criminal offence to display an obscene figure in or near a public place.
21 The plaintiff does not dispute the findings that she was displaying obscene figures in a public place. She claims to have been exercising her constitutional rights. The grounds for review invite the Court to rule on the validity of s 17(1)(b) insofar as it prohibits the display of obscene figures in or near a public place.
22 It is now well established that there is an implied freedom of communication on political and governmental matters that is an incident of the system of representative government established by the Constitution.
23 In Nationwide News Pty Ltd v Wills[9] and Australian Capital Television Pty Ltd v The Commonwealth,[10] the High Court of Australia recognised that the Constitution implied a commitment to freedom of political communication.[11] It held that no law of the Commonwealth could restrict the freedom of the Australian people to discuss governmental and political matters except to the extent necessary to protect other legitimate purposes or interests, but not to an extent which substantially impaired the capacity of, or opportunity for, the Australian people to form political judgments required for the exercise of their constitutional functions.[12]
24 In Lange v Australian Broadcasting Corporation,[13] the High Court expressly grounded the implied freedom in the text of the Constitution, holding that ss 7, 24 and related sections of the Constitution necessarily protect freedom of communication between the people concerning political and government matters, thereby enabling the people to exercise a free and informed choice as electors.[14] However, the implied freedom is not absolute and is limited to what is necessary for the effective operation of the system of government provided for by the Constitution.[15] Hence, within the Australian legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution.[16]
25 The implied freedom has subsequently been considered by the High Court in a number of cases, notably, for present purposes, in Coleman v Power.[17]
26 Most recently, in McCloy v New South Wales,[18] the plurality described the implied freedom in the following way:[19]
A law infringes the constitutionally implied freedom of political communication if it so burdens, restricts or distorts the free flow of political communication between the governed, their representatives and candidates for elected office as to be incompatible with the continued existence of the political sovereignty which resides in the people and is exercised by their representatives according to ss 7, 24, 62, 64, 128 and related provisions of the Constitution.‘Political sovereignty’ in this sense means the freedom of electors, through communication between themselves and with their political representatives, to implement legislative and political changes. It may be infringed by restricting the freedom of electors and their political representatives to disseminate or receive information bearing on electoral choices. It may be infringed, too, by restrictions on political communications to and from persons other than electors.
27 The implied freedom places limits on legislative and executive power. However, it is not absolute and, as a consequence, the limit on legislative power is not absolute.[20] A law will only infringe the implied freedom of political communication if it burdens, restricts or distorts ‘the free flow of political communication’ so as to be incompatible with the freedom of electors, through communication between themselves and with their political representatives, to implement legislative and political changes.
28 In Lange, the High Court developed the authoritative test for assessing the constitutional validity of legislation in the light of the implied freedom of communication. The test in Lange, as modified in Coleman, was as follows:[21]
29 In McCloy, the test for assessing the constitutional validity of legislation in the light of the implied freedom of communication was expanded as follows:[22]
30 It is therefore necessary to consider:
(a) First, whether s 17(1)(b) of the Summary Offences Act, insofar as it prohibits the display of obscene figures, burdens political communication (the question of burden);
(b) If so, whether its purpose and the means adopted to achieve that purpose is compatible with the maintenance of representative government as prescribed by the Constitution (the question of compatibility); and
(c) If so, whether s 17(1)(b) is reasonably appropriate and adapted to advance that legitimate object (the test of proportionality).
31 It is, in turn, necessary to consider three aspects of proportionality:
(a) Does s 17(1)(b) have a rational connection to its purpose (suitability)?
(b) Are there other less restrictive means of achieving its purpose (necessity)?
(c) Is there a balance between achieving the purpose of s 17(1)(b) and the negative effect of its limits on political communication (adequacy on balance)?
32 The first question is whether s 17(1)(b), insofar as it prohibits the display of obscene images, effectively burdens the implied freedom in its terms, operation or effect.
33 The plaintiff submits that s 17(1)(b) burdens the implied freedom of communication as it bars political communication classed as ‘obscene’ in all public places in Victoria. The Attorney-General accepts that the offence may burden the freedom incidentally, in that a display of obscenity in public might, from time to time, concern a political matter that is the subject of the implied freedom.
34 The expression ‘effectively burden’ has been held to mean nothing more complicated than that the effect of the law is to prohibit, or put some limitation on, the making or the content of political communications.[23] Even a minimal or incidental burden on political communication is sufficient to raise the issue, although the degree to which political communication is burdened is relevant to the latter aspects of the test.[24]
35 The question of burden is answered by reference to the legal effect of the operation of the impugned law in its application to the conduct that it prohibits. Chief Justice French has described the inquiry as ‘systemic’: it is not an inquiry into whether the law places a burden upon freedom to engage in the particular kind of communication in issue.[25] In the context of a law making it an offence to send offensive materials through the post, the Chief Justice said:[26]
.... The prohibition it imposes is defined by reference, inter alia, to the content of a communication made using [postal] 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 judgement 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.
36 Section 17(1)(b) relevantly prohibits the display of obscene images. It affects the content of communications and is therefore a burden on communication. The question is whether it operates as a burden on political communication. In Coleman, Gleeson CJ answered this question, in relation to a restriction on the use of insulting words in a public place, as follows:[27]
almost any conduct of the kind prohibited by s 7, including indecency, obscenity, profanity, threats, abuse, insults and offensiveness, is capable of occurring in a ‘political’ context, especially if that term is given its most expansive application.
37 Section 17(1)(b) is clearly capable of having an operation that, in some circumstances, may burden communication about governmental or political matters, whatever the precise ambit of the concept of governmental or political matters might be. This is so, even though the object of s 17(1)(b) is not the regulation of communication about governmental or political matters, its effect on such matters is incidental and its practical operation in most cases will have nothing to do with such matters.
38 I am satisfied that s 17(1)(b) of the Summary Offences Act, in prohibiting the display of obscene figures, may effectively burden political communication.
39 The second question is whether the purpose of s 17(1)(b), and the means adopted to achieve that purpose, are compatible with the maintenance of the constitutionally prescribed system of government and the implied freedom of political communication that is an incident of that system. Both the purpose and the manner in which the purpose is achieved must be compatible.[28]
40 The plaintiff submits that s 17(1)(b) is not compatible with the principle of representative government, as offensive and even highly offensive speech or conduct is a legitimate part of political communication. The same applies to the means adopted, which is a blanket prohibition across all public spaces, without any ameliorative provisions allowing for political discourse or other legitimate end.
41 An essential first step in the compatibility analysis is to identify the purpose of the relevant prohibition in s 17(1)(b). This is to be determined by applying the ordinary principles of statutory interpretation.[29] So far as different constructions appear to be available, a construction is to be selected which would avoid, rather than lead to, a conclusion of constitutional invalidity.[30]
42 Although it has been observed that ascertaining the purpose of offense provisions ‘is rarely answered by reference to the words of the provision’, which commonly provide only the elements of the offence and no more,[31] in this case it is necessary to determine what is meant by ‘obscene’, for that is the concept that imposes the limit (for present purposes) on what can be displayed in or near public places.
43 The New Shorter Oxford Dictionary defines ‘obscene’ as:[32]
ill-omened, abominable, indecenthighly offensive, morally repugnant
repulsive, foul, loathsome
offensively or grossly indecent, lewd
tending to deprave or corrupt those who are likely to read, see or hear the contents
44 In s 17(1)(b), ‘obscene’ appears together with ‘indecent’. ‘Indecent’ means:[33]
Unbecoming, in extremely bad taste, highly unsuitableOffending against recognised standards of decency, immodest, suggesting or tending towards obscenity
45 There is ample authority that while ‘obscene’ is related to ‘indecent’ and ‘offensive’, it is at the most serious end of the spectrum.[34] Both its dictionary meaning and the relevant case law place ‘obscene’ at the highest end of what is disgusting, repugnant, repulsive or offensive, having regard to contemporary community standards. Section 17(1)(b) therefore prohibits the display in or near public places of images that are of the most seriously shocking type.
46 It is trite law that obscenity is to be judged according to ‘common standards of propriety’.[35] In Coleman, Gleeson CJ observed that what is disorderly, indecent or offensive will vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs.[36] In Monis, the plurality noted that criminal law provisions concerned with obscenity fall into a category of laws which must necessarily keep pace with prevailing views of society and changing circumstances.[37] It is for that reason that concepts such as ‘obscenity’ and ‘offensiveness’ are inevitably couched in vague terms.[38]
47 It follows that what is obscene for the purposes of s 17(1)(b) is mutable and will reflect the evolution of community standards. Moreover, what is obscene in one context may not be obscene in another context. Graphic images of dead and bloodied foetuses displayed on the footpath in inner suburban Melbourne were held to be obscene, but the same images might not be obscene if shown in a medical lecture or displayed in a medical textbook. Indeed, they might not be classed as obscene if presented in a law reform submission or to members of Parliament in an appropriate setting.
48 Having regard to the meaning of ‘obscene’, the primary judge held that the purpose of the prohibition of the display of obscene figures in s 17(1)(b) was to ‘prevent the display of figures of such horror or such a disgusting nature as to be inconsistent with good public order’.
49 The parties do not challenge this description of the purpose of the relevant part of s 17(1)(b). What is in issue is whether this purpose is legitimate, having regard to the constitutional requirements.
50 The Attorney-General submits that the prohibition in s 17(1)(b) creates a typical public order offence and that, having regard to the nature of the offence, its history and the terms of the provision, the primary judge was correct to find that the purpose of s 17(1)(b) is to ensure ‘good order in public places’.
51 The ‘the public order’ or ‘public nuisance’ rationale for prohibiting public displays of obscenity was described by the Full Court of the Supreme Court of Western Australia in Keft v Fraser.[39] Describing this rationale, Burt CJ said:[40]
[I]t must again be emphasised that this justification for the law of obscenity does not consider whether the dissemination of obscenity is immoral or is a cause of anti-social behaviour. It simply proposes that the display of obscene matter in the face of the public seriously offends the sensibilities of ordinary citizens who do not desire to view it and further, that it is not great infringement of individual liberty to insist that displays of this nature either take place in private or conform to accepted standards of public decency.
52 Obscenity upsets the order of a public place by interfering with the free use of that place by persons who have a right to use it without being subjected to things that are upsetting and distressing to them. In this way, the prohibition operates to prevent a form of public nuisance. The purpose of s 17(1)(b) is to enable people — including children — to go about their business in public places without fear of unwitting exposure to images that, by contemporary standards, are at the highest end of disgusting, repugnant, repulsive or offensive.
53 Obscenity, unlike conduct or language that is merely ‘offensive’, has been associated with ‘depravity’ and ‘moral corruption’. In R v Close,[41] Fullagar J deconstructed this relationship in the following way:[42]
As soon as one reflects that the word ‘obscene’, as an ordinary English word, has nothing to do with corrupting or depraving susceptible people, and that it is used to describe things which are offensive to current standards of decency and not things which may induce sinful thoughts, it becomes plain, I think, that Cockburn CJ, in the passage quoted from R v Hicklin (1868) LR 3 QB 360 at 371, was not propounding a logical definition of the word ‘obscene’, but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel. The tendency to deprave is not the characteristic which makes a publication obscene but is the characteristic which makes an obscene publication criminal.
54 Modern legislation rarely targets conduct on the basis that it has a tendency to ‘deprave’ or ‘morally corrupt’ and those terms now have only limited currency in the community at large. However, they have a modern equivalent in the recognition that some types of language and, in particular, certain images, have the potential to cause those exposed to them harm, particularly the young and impressionable.
55 It is broadly accepted in our community that there is a limit to what can be displayed in public places, particularly in public places that people cannot choose to avoid. Thus, for example, the display of footage of ISIS beheadings on a repeating cycle (or loop) on the billboards opposite Flinders Street Station would be regarded, in my opinion, as a display of obscene figures that was disruptive of or contrary to ‘good public order’. Images or footage of acts of sexual violence would fall within the same category. Many other examples come to mind.
56 I see no error in the description of the purpose of the relevant part of s 17(1)(b) given by the judge below. I would add that the maintenance of ‘good public order’ in relation to the display of obscene figures in public places includes the protection of members of the public, including (especially) children, from exposure to images that may be so distressing as to be potentially harmful to them.
57 The plaintiff, relying on particular passages of the judgments in Coleman and Monis, submits that ‘obscene’ equates with ‘offensive’ (or ‘seriously offensive’), and that, in prohibiting the display of obscene images, s 17(1)(b) is directed to no more than ensuring a minimum standard of ‘decorum’ or ‘seemly discourse’ in public places — a purpose also described as ensuring the ‘civility of discourse’.
58 In Coleman,[43] and again in Monis,[44] Hayne J held that the purpose of ensuring ‘civility of discourse’ in public was not compatible with the implied freedom of political communication. The elimination of communications giving offence, even serious offence, ‘without more’, is not a legitimate object or end.[45]
59 In Coleman, the High Court considered the legitimacy of the legislative purpose of a public order offence like s 17(1)(b). Section 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld) prohibited the use of ‘threatening, abusive, or insulting words’ in a public place.[46] The issue was whether the prohibition on the use of ‘insulting’ words impermissibly burdened the implied freedom of political communication. The High Court held by a majority of six to one that it did not, but only because three of the six judges in the majority construed ‘insulting’ words to mean words that might result in a breach of the peace.
60 Only McHugh J held that the law was invalid as impermissibly burdening political communication. His Honour held that regulating political statements for the purpose of preventing breaches of the peace might be compatible with the maintenance of representative government, but an unqualified prohibition on the use of insulting words was not.[47] His Honour said:[48]
The use of insulting words is a common enough technique in political discussion and debates. No doubt speakers and writers sometimes use them as weapons of intimidation ... However, ... insults are a legitimate part of political discussion protected by the Constitution. An unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom. Such a prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted to maintaining the system of representative government.
61 Justice Kirby also recognised that Australian political discourse had, from the earliest times, included ‘insult and emotion, calumny and invective’ in its armoury of persuasion.[49] In order to construe the impugned law so that it passed the Lange test, his Honour held that ‘insulting’ words were words that went beyond merely causing affront or hurt to personal feelings and had an ‘aggravated quality’.[50] Such words were apt —[51]
to a statute of the present type, to a requirement that the insulting words be expressed ‘to’ the person insulted, and to a legislative setting concerned with public order. They are words intended, or reasonably likely, to provoke unlawful physical retaliation. They are words prone to arouse a physical response, or risk thereof. They are not words uttered in the course of communication about governmental or political matters, however emotional, upsetting or affronting those words might be.
62 Likewise, Gummow and Hayne JJ held that the impugned law was valid, but only if ‘insulting’ words were limited to ‘fighting words’, that is, words that were likely to result in a breach of the peace. Their Honours held that the purpose of s 7(1)(d) was keeping public places free of violence[52] and that that was a legitimate purpose.
63 In the course of explaining why s 7(1)(d) had to be construed in this way, Gummow and Hayne JJ referred to laws prohibiting the use of ‘obscene’ language:[53]
The proscription of profane, indecent or obscene language marks a limit on the kind of language which may be employed in or within the hearing of public places. Enforcement of that limit ensures that a minimum standard of what, in other times, might have been called decorum or seemly discourse in public places is maintained.
64 Their Honours contrasted this kind of proscription with s 7(1)(d), which prohibited threatening, abusive or insulting words ‘to’ a person, and held that s 7(1)(d) was not directed ‘simply to regulating the way in which people speak in public’.[54] The proscription of the use of insulting words to another person and of engaging in insulting behaviour had to find support in ‘more than the creation and enforcement of particular standards of discourse and behaviour in public’.[55] Making criminal the use of certain kinds of words to another could only be explained by reference to the effect on, or the reaction of the person to whom the words were directed.[56] Hence, only words that were likely to result in a breach of the peace were ‘insulting’ words for the purpose of s 7(1)(d).
65 It is not clear from the passage on the proscription of profane, indecent or obscene language whether their Honours considered that a prohibition on the use of such language in public places could serve a legitimate purpose. What is clear is that Coleman deals with a prohibition on the use of offensive and insulting words. It does not deal with obscene words or the display of obscene images.
66 For the reasons that I have given, I consider there to be a qualitative difference between the suppression of language that people might find offensive and the suppression of material that is obscene.
67 The plaintiff referred the Court to a passage in the judgment of the Kiefel, Crennan and Bell JJ in Monis in which their Honours appear to conflate ‘offensive’ conduct with conduct that is obscene or indecent:[57]
Both ‘indecent’ and ‘obscene’ are words which convey one idea, that of offending against recognised standards of propriety — indecent being at the lower end of the scale and obscene at the upper end. The word ‘offensive’ is apt to describe the content of communications which range from being indecent to obscene.
68 In Monis, the High Court (a bench of six) was evenly divided on whether a law that prohibited the use of the postal service in a way that reasonable persons would regard in all the circumstances as being ‘menacing, harassing or offensive’ was invalid as impermissibly interfering with political communication. The plurality upheld the validity of the law, on the basis that it was to be construed as directed to the misuse of postal services to effect an intrusion of seriously offensive material into a person’s home or workplace. However, Chief Justice French and Hayne and Heydon JJ held the provision to be invalid as unlawfully burdening political communication.
69 In Monis, the justices of the High Court again recognised insult, abuse and invective as an inevitable part of political discourse: reasonable persons would accept that unreasonable, strident, hurtful and ‘highly offensive’ communications fall within the range of what occurs in ‘robust’ political debate[58] and communication within that range may be calculated to induce ‘significant anger, outrage, resentment hatred or disgust’.[59] Political discourse may cause really serious offence or even ‘the greatest possible offence’.[60]
70 In the passage extracted above, the plurality stated that the word ‘offensive’ covered ‘obscene’ and ‘indecent’. However, while something that is obscene will usually also be offensive, the converse is not the case. Moreover, their Honours were considering a submission that the removal of the words ‘obscene’ and ‘indecent’ from predecessor provisions to the impugned law evinced an intention to widen the scope of material which would fall within the prohibition. The same or similar submission was made in relation to the removal of the words ‘grossly’ (before ‘offensive’) and ‘blasphemous’ and ‘libellous’. Their Honours rejected this submission, concluding that the impugned law was restricted in its operation to refer only to communications ‘of a higher degree of offensiveness’ so as to satisfy the Lange test.
71 I do not accept that the prohibition on the display of obscene figures in s 17(1)(b) is merely concerned with the ‘civility’ or ‘seemliness’ of discourse. By contemporary standards, ‘obscene’ images are not merely offensive — or even ‘very offensive’ or ‘seriously offensive’. They are images which, according to accepted community standards, are of such horror or such a disgusting nature that people ought not to be unwittingly exposed to them while going about their everyday business or be obliged to take steps to avoid them. There is a significant difference between proposition that the implied freedom of political communication prevents the enactment of laws protecting the civility of discourse and the proposition that it prevents governments from regulating obscene displays in public.
72 The passage in the judgment of the plurality referred to by the plaintiff does not, in my view, dissolve the qualitative distinction between the publication of material that is merely ‘offensive’ and the display of material that by contemporary community standards qualifies as ‘obscene’. It does not call into question the legitimacy of a legislative purpose of preventing the public display of figures of such horror or such a disgusting nature as to be inconsistent with good public order.
73 The preservation of public order in the sense described is a legitimate purpose that is compatible with the maintenance of the constitutionally prescribed system of government. In Nationwide News, Deane and Toohey JJ stated that the implication of freedom of communication was not absolute and uncontrolled, but was an implication of freedom ‘under the law of an ordered society’.[61] In Theophanous v Herald & Weekly Times Ltd,[62] when discussing limitations on the constitutional freedom in the context of defamation laws, Deane J said:[63]
Such a curtailment of the freedom of political communication and discussion is consistent with the implication only to the extent to which it can, according to the standards of our society, be justified in the public interest either for the reason that it is conducive to the overall ability of the effective means of political communication and discussion in a democratic society or it does not go beyond what is necessary either for the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society.
74 Limits on the publication or display of obscene material have long been regarded as necessary for the preservation of an ordered society.
75 The Attorney-General submits that the regulation of obscenity is a very familiar feature of the legal landscape in Australia. He submits that s 17(1)(b) is directed to the legitimate end identified by the judge below — based on the rationale of ‘public order’ — and that there is nothing incompatible with representative government in prohibiting obscene displays in public. Representative government can proceed unimpeded while the prohibition on public obscenity remains in place.
76 I accept this submission.
77 It is important, in determining whether the purpose of the prohibition is legitimate, to bear in mind that laws prohibiting public obscenity have long formed part of the general law. As Gaudron J explained in ACTV:[64]
As the implied freedom is one that depends substantially on the general law, its limits are also marked out by the general law. Thus, in general terms, the laws which have developed to regulate speech, including the laws with respect to defamation, sedition, blasphemy, obscenity and offensive language, will indicate the kind of regulation that is consistent with the freedom of political discourse. ... And, of course, what is reasonable and appropriate will, to a large extent, depend on whether the regulation is of a kind that has traditionally been permitted by the general law.
78 In Tarjjour v New South Wales,[65] Hayne J made the same point:[66]
... while absence of harm cannot conclude the second Lange question, its absence, despite the long history of provisions of the relevant kind, is relevant to determining whether the means adopted by [the impugned law] of achieving the end to which it is directed is compatible with the maintenance of that system of government.
79 Laws prohibiting the display of obscene images in public places have been with us for a very long time without, apparently, interfering with the system of representative government that has been in place since federation. So have censorship or classification laws regulating the distribution of obscene material. The history and prevalence of such laws suggests that a law prohibiting the display of obscene images in public places is not incompatible with our system of representative government.
80 In my view, s 17(1)(b), insofar as it prohibits the display of obscene figures, is compatible with the constitutionally mandated system of representative government and the implied freedom of political communication.
81 I have reached this conclusion having given anxious consideration to the point made by Hayne J in Monis that a lack of consistency between the criminalisation of conduct by a law prohibiting certain types of communication and the availability of defences to defamation for the same communication will demonstrate that the object or purpose of the law is not legitimate or that it is not appropriate and adapted to its purpose. In relation to the publication of offensive material via the post, his Honour said:[67]
To hold that a person publishing defamatory matter could be guilty of an offence under [the impugned law] but have a defence to an action for defamation is not and cannot be right. The resulting incoherence in the law demonstrates that either the object or end pursued [by the impugned law] is not legitimate, or that the section is not reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government and the freedom of communication that is its indispensable incident.
82 After holding that the object or end pursued by the impugned law in Monis was not legitimate because it did no more than regulate the civility of discourse carried on by using the postal service, his Honour continued:[68]
If, contrary to the view that I have just expressed, it were to be decided that the object or end to which [the impugned law] is directed is legitimate, the observation that has been made about the lack of intersection between the Lange defence to a claim for defamation and the operation of [the impugned law] would demonstrate that the section is not reasonably appropriate and adapted to serve that object or end in a manner that is compatible with the constitutionally prescribed system of government and with the freedom of political communication which is its indispensable incident. The resulting incoherence in the law requires that conclusion.
83 The question that this poses for present purposes is whether a person could be convicted of breaching the prohibition on the display of obscene images in s 17(1)(b) while at the same time having a defence to an action in defamation for publishing the images in question.
84 The plaintiff gave as an example the photograph, widely published in the national press, on television and in the electronic media, of Dylan Voller, a young man detained in a youth justice facility in the Northern Territory. Mr Voller is shown strapped to a chair by his wrists and ankles, stripped to the waist, with his head covered by a hood. It is a truly shocking photograph. There can be little doubt that its publication constituted a communication about a political or governmental matter, in that it exposed unacceptable management practices in youth detention facilities.
85 This image, so the plaintiff contends, might be classed as obscene, but, insofar as it defamed any person, it would attract a defence to a suit in defamation because it showed something that was ‘true’.
86 The image of Dylan Voller is distressing and disturbing. However, I consider it to be unlikely that it would be classed as ‘obscene’ when displayed to expose state cruelty. It cannot be excluded that in a different context, it might qualify as obscene, despite being ‘true’ in the sense of representing something that actually existed or took place in the real world. However, I do not understand Hayne J to be saying that there is a constitutional implication that no image that is ‘true’ in this sense can be prohibited or regulated. His Honour’s analysis concerned the availability of the defence of qualified privilege as articulated in Lange. That defence requires the publisher to establish that its conduct in making the publication was reasonable in all the circumstances.[69] Because what is an obscene image will vary in time and will depend on the context in which it is displayed, whether an image is held to be obscene will be related to the reasonableness of its display or publication.
87 In the present case, the display of an image of a dead foetus in combination with the words ‘Blood money’ may contain imputations defamatory of the operators of the clinic. Would a defence of qualified privilege be available to the plaintiff if she were sued for defamation? The plaintiff would have to establish that she was acting reasonably in all the circumstances in displaying the image. The reasonableness of her conduct in displaying the image will also play a part in whether it is held to be obscene. The display of images that are of such horror or such a disgusting nature as to be inconsistent with good order in public places is likely to be inherently unreasonable. I see no necessary conflict between the criminal offence of displaying obscene images in or near public places and the availability of the defence of qualified privilege in this case.
88 In order for s 17(1)(b) to be valid, it must be reasonably appropriate and adapted to its purpose.
89 The plaintiff contends that s 17(1)(b) is not suitable to its purpose as it is not limited to instances where the display of an obscene image has been observed by or has otherwise ‘impacted upon’ another person. She submits that there is no rational connection between the purpose or object of s 17(1)(b) and its operation because the mere display of an obscene image in a public place could not affect public order.
90 In my opinion, there is plainly a rational connection between the purpose of the law — to protect members of the public from being unwittingly exposed to obscene images in public places or from being forced to avoid the place — and the prohibition. This type of law is based on the premise that people inhabit public places and that an obscene display will be seen by people or, at least, that there is a sufficient risk that this will occur to warrant the imposition of the prohibition as a prophylactic measure. As Burt CJ explained in Keft:[70]
The idea of a public place as used in [public order offences] is not simply geographical. It is assumed to contain human beings with ears.
91 Equally, a public place must be assumed to contain human beings with eyes.
92 If the law were limited in the way the plaintiff suggests to instances where the display was actually seen by someone, it would fail to achieve its purpose. The display, once seen, would defeat the protective purpose of the law. Moreover, the display of obscene images in a public place might cause members of the public to avoid that place with no consequence to the offender. This would again defeat the purpose of the law.
93 The purpose of the prohibition of the display of obscene images in s 17(1)(b) is to prevent the display from happening. Once the display has happened — involving, as it does, the exposure of the unwitting to the most extremely disturbing material — the purpose of the prohibition is defeated. Section 17(1)(b) is and is intended to be prophylactic, for that is the only way in which the desired protection can be provided.
94 There is a rational connection between the prohibition on the display of obscene images in s 17(1)(b) and its purpose of maintaining order in public places.
95 The plaintiff contends that s 17(1)(b) goes further than is necessary because it does not exclude conduct undertaken reasonably and in good faith for the purpose of communicating on political matters.
96 The Attorney-General submits that it is not possible to reduce the scope of prohibition and still retain its effectiveness. Further, so the Attorney-General contends, the suggested exclusion is not practicable because there is an inherent difficulty in defining what is meant by ‘political communication’ in the context of the display of obscene images. Moreover, it would be difficult, if not impossible, to carve out a defence of ‘reasonable use’ in circumstances where the elements of the offence incorporate an objective standard.
97 In Monis, the plurality recognised that it was not ‘a simple matter’ to excise political communication from the offence in issue, and observed that ‘considerable ingenuity’ would be required to craft such a defence, given that the offence required proof that the post had been used in a way a reasonable person would regard as offensive having regard to all the circumstances.[71]
98 In Tarjjour, Crennan, Kiefel and Bell JJ discussed the inclusion of a defence that excluded occasions of association where there was communication on government or political matters. Putting aside difficulties in drafting a defence of that kind, their Honours described such a defence as ‘easily claimed but difficult to investigate, test or challenge, both factually and legally.’[72] Moreover, such a defence would create a gap that was readily capable of exploitation.[73]
99 The same considerations apply here.
100 Although Gageler J expressed some scepticism about the proposition that it would be impracticable to exclude from the prohibition any association undertaken for the purpose of engaging in communication on governmental or political matters,[74] I am satisfied that it would be unworkable to seek to protect the public by prohibiting the display of the most seriously shocking images in public places but to exclude from the prohibition the display such images for the purposes of communicating on governmental or political matters. To do so would lead to endless debate and considerable uncertainty as to what was actually covered by the prohibition.
101 It is not the role of the Court to find a better way of legislating for the purpose of the impugned law. In determining whether a law passes the necessity test, the question for the Court is not whether some choice other than the choice made by the legislature was preferable or desirable, but whether that choice was reasonable in the light of the burden placed on the constitutional freedom of communication. The role of the Court is to ask whether the enactment is a reasonable means of achieving its purpose.[75] As Gleeson CJ said in Coleman: [76]
... the Court will not strike down a law restricting conduct that may incidentally burden freedom of political speech simply because it can be shown that some more limited restriction ‘could suffice to achieve a legitimate purpose’. This is consistent with the respective roles of the legislature and the judiciary in a representative democracy.
102 In my view, the prohibition on the display of obscene images in or near public places in a reasonable means of achieving the purpose identified. No reasonable and equally practicable alternatives having a lesser effect on the implied freedom have been identified. Section 17(1)(b), in prohibiting the display of obscene figures in public places, goes no further than is reasonably necessary in order to achieve its objective. It passes the necessity test.
103 The plaintiff submits that the provision fails this test because it shuts down one kind of political speech in all public places in Victoria without any consideration of the fact that offensive and even highly offensive communications are part of political discourse.
104 I disagree.
105 The prohibition of the display of obscene images in s 17(1)(b) is not directed at political communication. It affects political communication only indirectly, insofar as the display of an obscene image might, in some circumstances, constitute political communication. Having regard to what qualifies as ‘obscene’ and the fact that what is obscene will vary in time and place to cover only the most extreme types of images, the prohibition covers a very limited variety of conduct. It does not apply to the display of images that are insulting, offensive or even seriously offensive. It does not cover obscene speech, sending an obscene picture by email or by post, uploading obscene images onto the internet, the sale or distribution of obscene material (except to the extent that the material is displayed in public), the broadcast of obscenity on television or through the internet, or the private viewing or display of obscene material. There are other laws dealing with this.
106 Once again, it is appropriate to observe that the prohibition on the display of obscene images in public places has a long history and it has not been suggested that any of the earlier provisions have had any discernible, let alone detrimental, effect on the maintenance of the constitutionally prescribed system of representative government.
107 In my view, the prohibition of the display of obscene images in public places achieves an appropriate balance between freedom of political communication and the need to protect the public from unwitting and unwelcome exposure to images that are at the highest end of what is disgusting, repulsive, repugnant and offensive, having regard to contemporary standards.
108 The prohibition of the display of obscene figures in s 17(1)(b) is not invalid as impermissibly burdening the implied freedom of political communication. The impugned law, insofar as it prohibits the display of obscene figures in public places, is appropriate and adapted to a legitimate purpose and is compatible with the constitutionally prescribed system of government.
109 The law as it applied to the plaintiff’s conduct is valid and the plaintiff has been found to have contravened the law by displaying obscene figures in a public place.
110 It matters not whether the plaintiff was engaged in communication on government or political matters when displaying the obscene images.
111 The application for review of the decision of the County Court is dismissed.
[1] Fraser v Walker [2015] VCC 1911 (‘Reasons’).
[2] Reasons [31].
[3] Reasons [33].
[4] Reasons [39].
[5] Ibid.
[6] Reasons [47]-[48].
[7] Reasons [48].
[8] Ibid.
[9] [1992] HCA 46; (1992) 177 CLR 1 (‘Nationwide News’).
[10] [1992] HCA 45; (1992) 177 CLR 106 (‘ACTV’).
[11] Nationwide News, 48-9.
[12] Nationwide News, 50-1.
[13] [1997] HCA 25; (1997) 189 CLR 520 (‘Lange’).
[14] Lange, 560.
[15] Lange, 561.
[16] Lange, 567.
[17] [2004] HCA 39; (2004) 220 CLR 1 (‘Coleman’).
[18] [2015] HCA 34; (2015) 89 ALJR 857 (‘McCloy’).
[19] Ibid 898 [215]-[216].
[20] Monis v The Queen (2013) 249 CLR 92 (‘Monis’) 141 [103].
[21] McCloy, 18 [2].
[22] McCloy, 18-9.
[23] Monis, 142 [108].
[24] Monis 212 [343].
[25] Monis, 129 [62].
[26] Monis, 129-130 [63].
[27] Coleman, 31 [28].
[28] Coleman, 50 [92].
[29] Monis, 139 [95] per Hayne J.
[30] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 [11].
[31] Monis, 205 [317].
[32] L Brown (ed), The New Shorter Oxford English Dictionary (Oxford University Press, 1993).
[33] Ibid.
[34] Phillips v Police [1994] SASC 4848; (1994) 75 ACrimR 480, 483; Pell v Council of Trustees of the National Gallery of Victoria (1998) 2 VR 391, 394; Gul v Creed [2010] VSC [15].
[35] See Romeyko v Samuels (1972) 2 SASR 529, 560-1; Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391, 394-5; Gul v Creed [2010] VSC 185 [15].
[36] Coleman, 25 [12].
[37] Monis, 203 [312].
[38] Monis, 203 [312].
[39] Keft v Fraser (unreported, Full Court of the Supreme Court of Western Australia, Library No 6251, 21 April 1986) (‘Keft’).
[40] Ibid 11.
[41] [1948] VicLawRp 79; [1948] VLR 445 (FC).
[42] Ibid 463.
[43] Coleman, 78-79 [199] (with Gummow J).
[44] Monis, 169 [199].
[45] Ibid 174 [220].
[46] More generally, s 7 prohibited a variety of conduct including the writing or drawing of an ‘indecent or obscene word, figure or representation’.
[47] Coleman 53 [102].
[48] Ibid 54 [105].
[49] Ibid 91 [239].
[50] Ibid 98 [254].
[51] Ibid.
[52] Ibid 78 [198].
[53] Ibid 76 [190].
[54] Ibid 76 [191].
[55] Ibid.
[56] Ibid 76-77 [191].
[57] Monis, 203 [312].
[58] Ibid 131-132 [67].
[59] Ibid 131-132 [67], 157 [159].
[60] Ibid 136 [85].
[61] Nationwide News 76.
[62] [1994] HCA 46; (1994) 182 CLR 104.
[63] Ibid 178-9.
[64] Ibid 218. See also Coleman, 123 [327] (Heydon J).
[65] [2014] HCA 35; (2014) 254 CLR 508 (‘Tajjour’).
[66] Ibid 566 [92].
[67] Monis, 172-173 [213].
[68] Monis, 173 [215].
[69] Lange, 574.
[70] Keft, 10.
[71] Monis, 210-211 [336], 215 [351].
[72] Tajjour, 573 [121].
[73] Ibid.
[74] Ibid 584-585 [166].
[75] Coleman, 31 [31], 52-53 [100], 110 [292], 123-124 [328].
[76] Coleman, 31 [31].
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