|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Legal History |
LAWS AGAINST INSULT: HISTORY AND LEGITIMACY IN COLEMAN V POWER
JO LENNAN[*]
In September 2004, the High Court of Australia handed down its decision in the case of Coleman v Power,[1] its most recent exposition of the freedom of political communication in the Australian constitutional context. The case concerned, in particular, the extent to which the constitutional regime requires the protection of insulting speech– speech at the margins of acceptable political expression. An interesting aspect of Coleman v Power was the way in which the judges relied upon the history of the law in issue in order to reach divergent conclusions.
This essay, following the judges in Coleman v Power, considers the historical origins of criminal statutes restraining insulting speech in early English and New South Wales law up until the drafting of the Constitution: from laws in feudal times protecting the King’s peace, through to colonial desires for a tranquillity always just out of reach, to the ‘clean-up’ of Sydney’s streets in the Victorian era.[2] It is argued that this history shaped, not only the decisions in Coleman v Power, but the Australian constitutional context itself: in particular, the lack of an express freedom of (political or other) speech in the Constitution. It is suggested that, while Coleman v Power shows how legal history continues to influence the application of the implied freedom of political communication, there are ultimately limitations in adopting an overly historical approach.
The facts surrounding the arrest of Patrick Coleman in Townsville Mall on 26 March 2000 were disputed. However, there was no dispute as to the words used by Mr Coleman to Constable Brendan Power. Coleman was distributing to passers-by in the mall leaflets headed, ‘Get to Know Your Local Corrupt Type Cops’ and named Constable Brendan Power as one such ‘cop’. When Constable Power approached Coleman and requested a leaflet, Coleman announced to the Mall, ‘This is Constable Brendan Power, a corrupt police officer.’ In force in Queensland at the time was s 7(1) of the Vagrants Gaming and Other Offences Act 1931 (Qld), which provided:
Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear –
(a) sings any obscene song or ballad;
(b) writes or draws any indecent or obscene word, figure or representation;
(c) uses any profane, indecent, or obscene language;
(d) uses any threatening, abusive or insulting words to any person;
(e) behaves in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner;
(f) shall be liable to a penalty of $100 or to imprisonment for 6 months ...
Coleman was charged with use of insulting words to a person in a public place contrary to s 7(1)(d). He was also charged with publication of insulting words contrary to s 7A(1)(c) of the same Act and with obstructing police, serious assault against police and wilful damage. At trial, Coleman was found guilty of all charges except that of wilful damage. Coleman’s appeal to the District Court failed. On further appeal to the Queensland Court of Appeal, it was unanimously found that the offence of publishing insulting words, s 7A(1)(c), in its application to Coleman’s publication was beyond the legislative power of the Queensland Parliament as it infringed the implied constitutional freedom of political communication. Coleman was consequently acquitted of that charge, a finding not questioned by the High Court.
The question before the High Court was whether the application of s 7(1)(d), the offence of using threatening, abusive or insulting words to a person in a public place, to the words used by Coleman was valid. The measure of validity to be applied was that set out in the High Court’s landmark decision in the 1997 case of Lange v ABC: a law, even if it did burden the freedom of political expression, would nevertheless be valid if it was ‘reasonably appropriate and adapted’ to serve a legitimate end, which was compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.[3] As the Court of Appeal in Coleman v Power had decided that s 7(1)(d) did ‘burden’ the implied freedom of political communication, and the respondents in the High Court conceded that this holding was correct, the constitutional issue was confined to the second limb of Lange; that is, whether the burden thus imposed was ‘reasonably appropriate and adapted to serve a legitimate end ... compatible with ... representative and responsible government’.
The majority of the Court, comprised of Justices McHugh, Hayne, Gummow and Kirby, decided that the conviction of Coleman for using insulting words to a person in a public place should be set aside. However, the majority was a narrow one, and it was based on disparate reasons. There was no majority decision on the constitutional question of the validity of laws which restrict, in general terms, insulting speech. Although all seven judges confirmed as authoritative the formulation of the implied freedom of governmental and political discussion in Lange, they approached the question in different ways.
The decision of Justice McHugh alone stands for the proposition that laws of such general application will, on their face, be constitutionally invalid. The remainder of the judges in the majority construed the statutory meaning of ‘insulting’ speech to include only speech so insulting that it could provoke a breach of the peace. On this construction Coleman’s words did not fall within the section, and the question of the operation of the implied freedom of political expression therefore did not arise (although it favoured such a construction). However, there was some indication that a law which restricted ‘fighting words’– speech so insulting as to potentially provoke a breach of the peace – would be upheld as a law directed to the legitimate legislative purpose of maintaining public order.[4]
Certainly, the opinion of the three judges in the minority was that the implied freedom to discuss governmental and political affairs did not extend to insults. Their Honours rejected the attempt to limit ‘insulting words’ to words intended to provoke physical retaliation or likely to do so, pointing out that a requirement that the words be intended or likely to provoke a ‘breach of the peace’ had existed in preceding versions of the provision and had deliberately been removed when s 7(1)(d) was enacted. Irrespective of whether a breach of the peace was intended or occurred, their Honours stated, the law was directed to a legitimate end compatible with representative and responsible government, and was valid in its application to Coleman's conduct. According to their Honours, insulting speech, even of a political nature, was not protected by the implied constitutional freedom to discuss government and political affairs.
The principles of constitutional law that may be drawn with certainty from Coleman v Power are not immediately apparent. Nevertheless, the Court was in consensus that protecting the peace was a legitimate end, within the meaning of the test in Lange stated above; a view that was, as the numerous references to the legislative history indicated, rooted in the history of early English and colonial Australian law. The uses of history by the judges in Coleman v Power are considered in more detail below.
Although the conclusions they reached varied, all of the judges in Coleman v Power referred in their reasons to the history of s 7 (1)(d).[5] The use of history by the judges was twofold: at one level, the judges made explicit reference to preceding versions of the offence in construing the meaning of the law; at another, implicit level, the history provided the context by which the question of legitimacy, part of the second limb of the test espoused in Lange, was determined.
In construing the law, the Court in Coleman v Power was guided by the fact that, unlike the contemporary law, the preceding versions of the prohibition on the use of threatening, abusive or insulting words or behaviour in public contained an element of possibility of a breach of the peace or intent to provoke a breach.[6] Justices Gummow and Hayne cited this fact in support of their restrictive construction of ‘insulting’. The purpose of the contemporary provision, by virtue of being part of the criminal law, their Honours said, was public rather than private, so ‘insulting’ for the purposes of the law meant words that ‘either intended to provoke unlawful physical retaliation, or were reasonably likely to do so’[7] – a construction equivalent to a breach of the peace element. Their Honours stated that this could be the only public purpose of regulating what is said to a person in public, as ‘[t]he use of such words would constitute no offence unless others who hear what is said are reasonably likely to be provoked to physical retaliation’.[8] Justice Kirby reached a similar conclusion.[9] On this restrictive construction of ‘insulting’, Coleman’s words did not fall within the section.
In Chief Justice Gleeson’s view, however, the fact of the omission of the breach of the peace element, as existed in the earlier Act, was deliberate.[10] Therefore, the later provision could not be construed as requiring intent to provoke or the possibility of a breach of the peace.[11] Justice Heydon agreed, expressing his disapproval of ‘the process of effectively inserting words into the legislation, on which the limited construction depends’;[12] a submission, he noted, which the appellant himself had not made.[13] Justice Callinan expressed a similar opinion.[14] Justice McHugh argued that ‘insulting’ should be given its natural and ordinary (broad) meaning,[15] although in his reasoning the very broadness of the provision led to its invalidity.
As well as providing bases for construing the law’s meaning, the legislative history was also relied upon by some of the judges in Coleman v Power to provide the context for assessing the very legitimacy of such laws. Justice McHugh did not expressly rely on the history of the laws in his decision, although it might have been implicit in his statement that there was no doubt that the prevention of breaches of the peace was a legitimate end.[16] The other judges in the majority, who ‘read down’ s 7(1)(d) so that it did not apply to Coleman, did not have to directly address the legitimacy of the laws. Justice Kirby, in any event, placed less importance upon the history in construing the statute.[17] But, for the minority, legal history provided the context by which to determine the legitimacy of laws against using insulting speech in public, as part of the second limb of the Lange test. For instance, Chief Justice Gleeson said:
As the survey of legislation made earlier in these reasons shows, the balance struck by the Queensland Parliament is not unusual, and I am unable to conclude that the legislation, in its application to this case, is not suitable to the end of maintaining public order in a manner consistent with an appropriate balance of all the various rights, freedoms and interests, which require consideration.[18]
Similarly, Justice Callinan (referring to the comments of the Court of Appeal) said:
[D]espite his Honour’s expression of concern about the political reach of the provisions, modern history does not show they have operated oppressively, or in any way as an instrument of repression, to diminish lively discourse, political and otherwise, in the community.[19]
And Justice Heydon stated:
If the inquiry is shifted from the ends of s 7(1)(d) considered by themselves to the extent of their practical success, the system of government prescribed by the Constitution has worked extremely effectively in Queensland since 1931, notwithstanding the existence of s 7(1)(d), and it has worked extremely effectively in other places from earlier times, notwithstanding the existence of provisions like s 7(1)(d).[20]
It was implicit in the minority judges’ reasoning that the history of the law was the gauge by which ‘legitimacy’ was to be determined. In order, then, to assess the views reached in Coleman v Power as to the legitimacy of criminal laws against publicly insulting speech, it is worthwhile considering the history of such laws in some detail.
The history of laws like the provision in issue in Coleman v Power is a history of legislative and judicial attempts to maintain public order through the regulation of speech. Criminal laws against the public use of insulting or offensive words, first developed in feudal England to protect the King’s peace, were transported and adapted to the exigencies of colonial New South Wales, and then later used to impose order and civility on the streets of Sydney in the Victorian era. This section of the essay traces that development, and draws on two studies which provide the historical context to this development: Father Frank Brennan’s account of the history of the common law right of protest, Too Much Order With Too Little Law,[21] and Robert Pullan’s account of the origins of defamation law, Guilty Secrets: Free Speech and Defamation in Australia.[22]
As was noted in Coleman v Power, s 7(1)(d) can, like all public order offences, be traced to the feudal notion of the King’s peace. The original rationale for the regulation of insulting and offensive speech by the criminal law was that such speech might provoke physical retaliation and disturb the King’s peace. The laws of criminal libel and slander developed in order to offer an alternative to duelling, providing a forum for avenging insult in a manner that did not disturb the peace. Brennan detailed the development of the King’s peace as a concept which shaped the criminal law.[23] In Anglo-Saxon England, wrote Brennan, every man was entitled to peace in his own house; for the king, the right to peace expanded to include the ‘general peace of the kingdom’ and covered all major highways.[24] Disruption of the peace amounted to disloyalty to the king. By the time of Edmund I’s reign, the king’s peace ‘had become a legal fiction expressive of the king’s will and instrumental in the creation of national order out of local chaos’.[25] By the end of the thirteenth century, it had grown from an occasional privilege into a common right.[26]
When the Star Chamber took over prosecutions in 1488, concerned with protecting the monarchy from the impact of the printing presses, it decreed regulation of printing. Anxious, also, to prevent duelling disruptive of the King’s peace, it punished libels in the hope that such civil remedies would be more attractive than a duel.[27] Edward Coke in his 1605 report De Libellis Famosis (Of Libel) set out the reasons for punishing libel. If the libel were against a private man it deserved severe punishment because, unpunished, it would invite an act of revenge and bring about a breach of the peace. Libel of a public person or magistrate was even more serious, Coke wrote, ‘for what greater Scandal of Government can there be than to have corrupt or wicked magistrates?’[28] The Star Chamber also developed the criminal law to punish speech or publications that might cause breaches of the peace. Pullan remarked that the state had a legitimate interest in preserving the peace as, in cases involving ‘fighting words’, a civil suit ‘might not be enough: the victim might load his gun even as he called his solicitor’.[29] After the abolition of the Star Chamber in 1641, its criminal jurisdiction passed to the Court of King’s Bench. The King’s Bench continued to develop the common law which enforced the peace, finding, in the first case of obscene libel, that the peace could also be disturbed by corruption of public morals.[30] Hence, as Starkie wrote, the law of criminal libel developed in order to punish speech reflecting upon sects, classes, companies, or bodies of men, though not mentioning any person in particular; if such libels tend to excite the hatred of the king's subjects against the members thereof generally, or to provoke them to a breach of the peace.[31]
Thus, the development of the law in this period shows that the criminal law’s intervention in the speech of subjects was founded upon the state’s interest in preserving the peace. This rationale would continue to form for the basis for the legitimacy of subsequent laws.
The next phase in the development of criminal laws against the public use of insulting or abusive speech occasioning a breach of the peace, was the adoption of those laws in colonial New South Wales. In the peculiar history of attempts to preserve the King’s peace in the colony, laws regulating public communication played a central role. However, the history of the colonial period also reveals the increasingly vociferous challenges that were made to the legitimacy of the colonial government’s repressive laws.
The story of the King’s peace, transplanted from England to the new land and jealously guarded from the disorder of threatening speech, parallels the colonists’ attempts to impose order on the hostile landscape in which they found themselves. On arriving, the British were discomfited by the silences of the continent, and by the inadequacy of their language to encompass it. As Pullan described it:
When Joseph Banks tried to land in 1770, he said: ‘We could discern many cabbage trees, but nothing else we could name.’ There were no words in English for the empty centre where the vast flat land joined the sky without a seam and the hurt-defeated explorers often could not tell whether they were looking at land, sea or sky.[32]
For the early colonists, news of home came as a reprieve from their difficulties. When the Lady Juliana arrived in Sydney Harbour on 3 June 1790, Watkin Tench wrote, ‘News burst upon us like a meridian splendour on a blind man. We were overwhelmed with it, public, private, general and particular’. Tench shook hands with his neighbour, ‘so overcome that he could not speak; both men’s eyes filled with tears’.[33] But with time, words and names were found and, with these names, the blank expanses on the map slowly receded. And just as the act of place-naming, as Paul Carter wrote, effected a symbolic transformation of space,[34] the symbolic power of words deployed and controlled was central to the attempts of successive governors to establish order in the penal colony.
Brennan's work draws the link between the authorities’ desires for peace and tranquillity and their attempts to achieve that peace by controlling dangerous speech and publications.[35] In the first months of the penal colony, even an implied insult to the marines, ‘the only public order machinery accompanying Governor Phillip in the colony’, could threaten the peace.[36] When in 1789 a convict night watch was established after a spate of food robberies by night, the marines were unhappy with the power vested in these convicts to detain ‘any soldier or seaman found straggling after the taptoo has beat’.[37] Major Robert Ross demanded that the power – ‘an insult offered the corps’– be revoked, so as to avoid the risk of disputes between soldiers and the watch. Phillip acquiesced, and the robberies continued.[38]
Pullan described the tortuous punishments meted out to those who disturbed the King’s peace by speaking out, whether publicly uttering words or publishing.[39] When in 1796 ‘an anonymous writing of an inflammatory and seditious tendency ... being a direct breach of His Majesty’s Peace, and evidently tending to subvert the good order of this Government’ was discovered affixed to a post of the Boat House, Governor Hunter gave notice of his intention to punish ‘with the utmost severity of the Law’.[40] Yet peace and order was something of a fantasy for Hunter. In reality, he was impotent against the rum trade controlled by John Macarthur and his colleagues. By his own admission, Sydney was ‘a mere sink of every species of infamy’.[41] Hunter wrote:
I earnestly wish Government wou’d direct that such disturbers of the peace and happiness of a distant country like this might be sent out of it. No difficulty shall arrest me endeav’rs to bring into order the concerns of this colony. I have enter’d upon it, and I will, if I live, bring it about, however it may effect the private concerns of private individuals, for that is the rub.[42]
And Hunter’s largely unsuccessful endeavours to bring about such peace and happiness, highly restrictive of freedoms, were unpopular with free settlers. Some expressed their view that they ‘did not care for the Governor or the Orders of the colony – they were free men, and would do as they pleased’.[43]
There was also growing concern in England about the legality of the unbridled power exercised by governors over the colony, particularly as numbers of free settlers increased. Jeremy Bentham’s ‘Plea for the Constitution’ compared the new colony with England before the Glorious Revolution. ‘The transgressions that at that time gave birth to the Revolution in this our island’, he wrote,
were but peccadillos in comparison of the enormities acted on that distant theatre ... the subversion of English liberties having been the very object and final cause of the foundation of the English colony.[44]
But things got worse. The colonial government in its ‘distant theatre’ exacted ever-harsher punishments for infractions of a peace – which, for its newest beneficiaries, the Aborigines, was never a peace – on behalf of a king who had not so much as set foot on the continent.
Following the 1804 Irish Conspiracy, the governor proclaimed martial law and with startling efficiency had eight men charged, convicted and hanged by the end of the week, notwithstanding their pleas of innocence. The man in command of the New South Wales corps in putting down the rebels, Major George Johnston, was subsequently appointed as a magistrate. On the following Monday, the governor reported the week’s activities to Lord Hobart, and observed that ‘... everything is now perfectly quiet’.[45] Ironically, it was this same Johnston who, four years later, denied the liberties of the Governor – by that time Governor Bligh – when soldiers under the command of Major Johnston and the inspiration of the gaoled John Macarthur imprisoned Bligh and released Macarthur. Johnston proclaimed martial law for a day and suspended the judge-advocate, the commissary, the chaplain, the provost-marshall, and several magistrates. He justified the overthrow of the constitutional government in terms by now familiar to the colony, saying that ‘the most perfect peace and tranquillity were restored throughout the whole Settlement’.[46]
In response, Governor Macquarie, during his term, raised the stakes in the pursuit of law and order by promulgating exhaustive new police regulations which reformed policing practices and rendered punishable a wide range of public conduct.[47] At the same time, the Colonial Office stalled on petitions for constitutional reform. Despite a recommendation for a consultative process in the colonial government from the Select Committee for Transportation, the British government preferred to leave the Governor unfettered by a Council, in the interests of ‘public tranquillity’ and ‘the danger of weakening the higher authorities in a Society composed of such discordant materials’.[48]
The colonial inclination to maintain peace and order by suppressing the voicing of discordant views was also evident in the legally dubious measures employed by that colonial Caligula, Governor Darling, to control the fledgling Sydney newspapers. In one incident, when the editor of the Monitor persuaded a convict to return to work after all the assignments of all the paper’s convict staff were revoked by Darling, Darling gazetted the convict as a prisoner illegally at large. A magistrate’s court fined the editor for harbouring a runaway convict and gaoled the convict. The order was later quashed by the Supreme Court, since it had ruled on a prior occasion that a convict’s assignment could be cancelled only with a remittal of sentence. When the editor then mocked the delay in prosecuting him for his libels (he suggested the authorities were instead spending the summer months drinking peach cider), he was threatened with the removal of his farm under new surveying rules. And on top of the difficulties of publishing in a town suffering from a scarcity of all things – Happy George Howe printed the Sydney Gazette in ink made from charcoal, shark oil and gum and delivered it personally to subscribers[49] – Darling imposed exorbitant licensing fees for publication and threatened libellous editors with gaol and transportation.[50] The result was that it was not unusual for newspapers to be edited from inside gaol walls.
Agitation for constitutional reform increased. A settlers’ petition of January 1827 pleaded,
that your Majesty will rivet [NSW inhabitants’] already ardent and devoted loyalty and attachment to your Majesty’s person and family by conceding to them Privileges which have been proved to be the best safeguard as well of private and personal rights as of public Security.[51]
The petition failed. As Henry Dumaresq, Darling’s brother-in-law, when sent to London to raise the problem of the increasingly outspoken press with the Colonial Office, argued, convicts and ex-convicts had no rights, and the free settlers had forfeited theirs. ‘There are many questions it is dangerous to discuss in that country,’ he wrote.[52] Yet when Darling was recalled in 1803 after his unpopular and controversial rule of the colony, his comment on leaving was that, ‘No place can be more tranquil than this is.’[53]
Darling’s successor, Governor Bourke, imposed strict new public order measures with the Sydney Police Act of 1833, ‘an Act for regulating the Police in the Town and Port of Sydney and for removing and preventing Nuisances and Obstructions therein’.[54] Constables were sworn in under the Act to preserve the peace.[55] Still, the colony’s citizens petitioned the king, complaining of ‘a lamentable lack of manners, and ... the fearful prevalence of crime’.[56] The costs of the large-scale public order machinery were substantial and the colony’s settlers refused to foot the bill, claiming that the need for such heavy policing arose from the colony’s convict origins.[57] In 1839 Governor Gibbs appointed a Committee on Police and Gaols. Reporting on reform measures, the Committee assured the Legislative Council that
[i]f it be objected that it is inconsistent with the notions entertained in an English community of the perfect liberty of the subject, it may be answered that it is only such a sacrifice of theory as is required to obtain in practice a more perfect security of life and property, without which, liberty itself can have no substantial reality.[58]
However, Gibbs found that despite the measures taken to impose public order on the ‘lower orders’ and emancipists,
libertinism, it must be confessed, of every description exists in spite of the most stringent of Laws, and what must certainly be considered an efficient and watchful Police.[59]
Yet in February of 1845, Gibbs reported to Lord Stanley that ‘[t]he country is now perfectly quiet’.[60]
The final period of legislation in the Australian colonies preceding, or parallelling, the drafting of the Constitution for a federal Commonwealth government, was the spate of public order reforms enacted by colonial legislatures in response to the moral concerns of the Victorian age. The law reform debates are indicative of Federation-era attitudes to the legitimacy of utilising the criminal law to control publicly insulting, offensive or abusive speech, and may shed some light on the approach taken in drafting the Constitution. The provisions against the public use of insulting speech contained in these statutes were the precursors to the Queensland legislation considered in Coleman v Power.
A few years after Bentham published his lament for the state of freedoms in the colony, his friend and close political associate James Mill had a son, John Stuart, who was subjected to the kind of rigorous home-education in which both his father and Bentham believed.[61] After recovering from the nervous breakdown brought on by that education, John Stuart Mill wrote an essay, On Liberty, which contained his influential vision for free individual expression in society. The book was ‘a protest against the coercive moralism of Victorian society’.[62] As Mill wrote in a letter to his wife Harriet, who collaborated on the book and died suddenly before its publication, ‘Nothing seems to me more needed, ... for opinion tends to encroach more on liberty and almost all the projects of social reformers in these days are really liberticide’.[63] In the United Kingdom, the Libel Act of 1843 codified the offence of criminal libel.[64]
The concerns Mill expressed were equally true of New South Wales which, in the Victorian era, also faced increasing demands for social reform. These demands were inextricably linked to the changes that the colony was then undergoing: the transition from penal colony to free society; dramatic urbanisation; and the increasing influence of a burgeoning urban middle class seeking to make use of Sydney’s public spaces.[65] One commentator railed:
There is a class of girls and women here – hopeless specimens of whom may be seen airing themselves in the Domain and gardens on Sunday afternoons, and on Sunday nights in George Street, putting even rough modesty to the blush by their shameless speech and acts – sapping the foundations of the State and urging youth to ruin and infamy.[66]
Sydney was no longer just an open-plan penal institution. In order to protect the morality of youth and the modesty of middleclass women from ‘shameless speech and acts’, Sydney had to clean up its streets. Like all the Australian colonies, in the period from about 1870 through to the First World War, New South Wales responded to public pressure and embarked on a concerted public order program.[67] In aid of these efforts, it passed a new raft of laws restricting insulting and offensive speech. Intent to provoke a breach of the peace, or the possibility of a breach, remained a requirement of the offence of insulting language in the period 1902-1908.[68] From 1908 this requirement was abandoned.[69] These provisions were the precursors to the Queensland legislation considered in Coleman v Power.
The discussion of history thus far in this essay has sought to show how public order laws prior to Federation consistently targeted the use of insulting words. This, of course, was the point in time at which the Australian Constitution was drafted and enacted. The Constitution, by which we now must determine the validity of such laws, was thus drafted against the longstanding practice of imposing criminal law restraints on speech. Moreover, it is argued that the drafters of the Constitution saw no good reason to change this practice, since they excluded from the text of the Constitution any express protection of the freedom of expression.
When, in 1890, delegates of the states convened to discuss the possibility of federation and the Constitution which would regulate it, many delegates would have preferred to talk behind closed doors. It was reluctantly decided that the press would be admitted; spectators could, however, be excluded at any time.[70] When the drafting began in the following year, it was again proposed that the convention be open to the public and the press. ‘We must take into our confidence the people, who are the principal factors in building a nation’, said George Dibbs, the Sydney shipper and former Premier.[71] The Queenslander Andrew Thynne thought this would be ‘a great mistake’; delegates from South Australia and Victoria agreed. It took, at Samuel Griffith’s instigation, private talks until the next day to reach an agreement to open the doors ‘unless otherwise stated’.[72]
After this farcical concession to transparency, it is unsurprising that a guarantee of free speech was not included in the draft Constitution. In fact, apart from a passing reference to the unattractiveness of the ‘sorts of extraordinary proposals’ of the United States,[73] freedom of speech was not even debated. The drafters of the Constitution eschewed the express guarantees of fundamental rights of the United States Constitution in favour of the principle of parliamentary supremacy and responsible government.[74] As Sir Owen Dixon later observed:
[the drafters] were not prepared to place fetters upon legislative action, except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them the need of provisions directed to control of the legislature itself.[75]
Indeed, the history of their country had taught the reverse: that there was great convenience in having few fetters on the legislature’s power to restrain speech; to close the doors, if it chose, on some forms of discussion.
In a footnote to the exclusion of a freedom of speech from the Constitution, the Labor government in 1944 held a referendum proposing to amend the Constitution so that ‘[n]either the Commonwealth nor a State may make any law for abridging the freedom of speech or of expression’. Jack McEwen, later the leader of the Country Party, called the proposal ‘just so much baloney’; ‘We have free speech in this country,’ he said, ‘and we have always had it’.[76] The referendum was defeated by a majority of Australians. Thus it happened that modern Australia inherited a Constitution lacking an express freedom of speech, which, as Justice Kirby pointed out in Coleman v Power, makes it unique among like nations.[77]
The consequence of the silences of the Constitution is that the only protection of freedom of expression is the implied protection, articulated in Lange, of the discussion of political and government affairs, as a necessary incident to the system of government envisaged by the Constitution. Even that protection is no protection at all if the law restricting such expression is ‘reasonably appropriate and adapted to serve a legitimate end ... compatible with ... representative and responsible government’.[78] The difficulty in determining whether the purpose of a law is a legitimate end compatible with representative and responsible government is a function of the fact that the protection is implied from, rather than expressed in, the Constitution; for the reasons stated above, the Constitution contains no catalogue of legitimate ends, nor any express measure for determining the legitimacy of the purpose of a law which restricts political speech. Consequently, in Coleman v Power, the question of whether the end to which the law was directed was legitimate fell to be determined by reference to the historical legislative practice. However, it is suggested that the historical fact that it has been the practice of legislatures to make such laws is, of itself, no answer to the question of whether the law is directed toward a legitimate end compatible with the system of representative and responsible government. It should, after all, be noted that the laws described above were laws of a colony that was not, in its early days, characterised by representative and responsible government.
It is also important to note that a law considered legitimate at the time of Federation may not necessarily be legitimate today. This is because, although the words of the Constitution retain the essential connotations they had at the time of Federation, they may denote other meanings now – a distinction between connotation and denotation that is derived from Mill.[79] It is accepted, for instance, that the inclusion of women and unpropertied men in juries is required by the constitution now, even though there was no such requirement at Federation.[80] Equally, the question of whether it is necessary under the constitutional regime to have the freedom to communicate one's political views in order for those views to be represented, is not answered by saying that such freedom did not exist at the introduction of the Constitution.
VII THE NECESSITY OR OTHERWISE OF INSULT
This essay has discussed the uses of history in the judges’ decisions in Coleman v Power and the way in which the scope of the implied constitutional protection of freedom of political communication was shaped by that same history. Finally, in light of the history, this essay will turn again to the question before the High Court in Coleman v Power – whether publicly insulting speech has a legitimate place in political debate – and reflect upon the answers given by the judges. It is herein suggested that the question requires a more nuanced consideration of what it is to insult and to be insulted, something which reference to history cannot provide.
To put the question in the terms of the Lange test, is insult so necessary for the effective operation of the system of government established by the constitutional framework, that a law directed to banning it would be incompatible with the maintenance of that system? Justices Kirby and McHugh, in answering this question, both referred to the ‘reality’ of debate in Australia; the fact that it had always involved invective and insult.[81] Justice Kirby emphasised that freedom of political communication ‘belongs as much to the obsessive, the emotional and the inarticulate as it does to the logical, the cerebral and the restrained’.[82] The minority, expressing views similar to that of Justice Callinan quoted above, formed the contrary opinion that such laws did not, on the whole, operate repressively or to the detriment of political debate, and were thus compatible with the maintenance of representative and responsible government. The minority was confident that, in the words of Justice Heydon, ‘[i]t is possible, and indeed quite easy, to communicate the substance of what is habitually communicated about government and political matters without recourse to insulting words’.[83]
It is suggested that, in deciding on the necessity or otherwise of insult, the majority and particularly the minority decisions in Coleman v Power lacked a reflexive engagement with the nature of insult itself. As discussed above, the decisions in Coleman v Power revealed competing constructions of the meaning of ‘insulting’.[84] But insult itself may be seen as a function of competing meanings. In discussing the insult taken by white South Africans at being called ‘settlers’, J M Coetzee observed that, ‘the experience or premonition of being robbed of power seems to me intrinsic to all instances of taking offense’.[85] On this view, the acts of insulting and of taking offence may be seen as part of what Bourdieu described as ‘all the symbolic struggles for the production and imposition of the legitimate vision of the world’.[86] Real insult may lie not only in words but in their content, in the challenge made to another’s sense of meaning. The claim that political debate can be devoid of insult or offence rests on the fiction that people in society have no vested interests, no deeply-held positions; that debate operates on a purely intellectual plane without actual and dramatic consequences for peoples’ lives.[87] Understood in this sense, insult is inevitable in political debate. Not only that, it is most likely to occur when a speaker’s expression challenges the status quo. Form is not so easily separated from substance; if insult derives from meaning itself, then to exclude insulting expression from the protected sphere of political debate would be to exclude also certain meanings and, possibly, certain participants. As the Supreme Court of Canada observed in a case concerned with ‘history’ itself, taking a view of the history of legal restrictions on speech somewhat different to that of Justice Callinan:
History has taught us that much of the speech potentially smothered, or at least ‘chilled’, by state prosecution of the proscribed expression is likely to be the speech of minority or traditionally disadvantaged groups.[88]
There is a further question about the place in political debate of ‘fighting words’, words so insulting they risk provoking a breach of the peace or physical retaliation. Is it legitimate to criminalise speech of this kind, whether political or not? The answer of the High Court was a resounding yes; this premise was uncontested. And yet the above ideas about the nature of insult apply equally, perhaps more so, to this kind of speech. The acceptance of the inherent legitimacy of a law directed to this end reflects the enduring desire to preserve the King’s peace, that was such a recurrent theme in the governance of colonial New South Wales.
Concerned as it is with the use of the early legal history in Coleman v Power, this essay does not give detailed consideration to the modern development and operation of criminal laws regulating speech in the period from Federation to the present. It is noted, however, that the operation of such laws during this period has been considered by Roger Douglas in his article on Coleman v Power.[89] In that article, Douglas relied upon his analysis of reported insulting words offences in three data sets, two of which were drawn from media or archival sources for the periods 1930-1955 and 1965-1990 respectively, and the third from newspaper reports between 1998-2004, in order to argue that laws criminalising insulting language had rarely been used in relation to political insults.[90] Even when they were used, Douglas said, they were ‘largely limited to insults from actors on the political fringe’.[91] Douglas argued that, in any event, it was appropriate that free political communication was protected by political convention rather than by constitutional restraint. After all, he observed, ‘[t]he history of insulting language laws suggests that politics protects freedom of political communication reasonably well’.[92] For this reason, Douglas said, the decision in Coleman v Power was pretty irrelevant.
However, Douglas’ study of the first and second samples was restricted to occurrences ‘where the relevant behaviour took place in the context of some kind of political act, protest or meeting’.[93] Insulting language charges which did not fall on the same day as reported political acts, protests or meetings were not included as ‘political’ insults, regardless of their content. Such a narrow definition of ‘political’ insult lends itself readily to empirical measurement, but it is hardly surprising that the vast proportion of insulting words charges fell outside it. Here, as with the decisions in Coleman v Power, it is suggested that more nuanced conceptions of ‘insult’ and ‘politics’ are required.
Political communication is not confined to organised meetings or rallies; insulting words uttered outside such a context may be equally political, although they may not be deemed to be so by the hearer or the community at large. The enforcement of NSW offensive language laws (which derive, like the Queensland law against insulting language, from the provisions discussed above) to the well-documented detriment of indigenous communities,[94] is an example of the kind of situation where the speaker may consider his or her words to be expressive of views that are deeply political – located as they are in a particular historical relationship with police as agents of the state – even though the words are not heard as political speech. The slippage between what a speaker means by his or her words and what a hearer understands by them, illustrates both the open-textured nature of language and the limitations of adopting a too-narrowly confined conception of ‘political’ speech. Indeed, the magistrate's decision at first instance in Coleman v Power, that Coleman was not protesting against any laws or government policies but was conducting a ‘personal campaign related to particular officers of the Townsville Police’, provides a good example of how words intended to be political can be dismissed as personal.[95]
Ultimately, it is hard for a judge or legal commentator to conclusively say that laws criminalising insulting speech do not have the effect of restricting speech in a way that excludes, not only certain kinds of expression, but certain views. Nor can it be known whether the exclusion of these views from political debate interferes with the system of representative democracy established by the Constitution. This is simply beyond the experience of the judges. Reason itself, as Coetzee noted, ‘[as] the unframed framer ... is a form of power with no in-built sense of what the experience of powerlessness might be like’.[96] In this regard, the view expressed by the judges in the minority in Coleman v Power, that such laws did not, on the whole, operate repressively or to the detriment of political debate, is perhaps complacent. It becomes apparent that, at the very least, it is hard to evaluate the extent to which a law burdens political debate without a clear conception of the nature and extent of debate required for the functioning of the system of representative government established by the Constitution. This is the argument propounded by Dr Adrienne Stone: if ‘the Court is going to create a rule that gives freedom of political communication special weight in particular circumstances, it needs some conception of the freedom of political communication against which to do this’.[97]
A sense of historical perspective is of undoubted value in applying the law. For instance, as in Coleman v Power, the historical development of criminal laws restricting threatening, insulting and offensive speech are of guidance in construing the meaning of the words of such a statute. The history also illustrates the social context in which the laws developed – including the peculiar exigencies of colonial New South Wales – and the emotive power of insulting words which so unsettled early governments and the peace of their distant King. The history of the use of such laws is also illustrative of the purposes at play behind the drafting of the Constitution, which settled the legislative as well as the geographic boundaries of the Commonwealth, States and Territories of Australia. The history shows that the Constitution, by which we now seek to determine the permissibility of such laws, was itself crafted with an appreciation of the benefits there may be in a peaceful silence. The result was a constitutional framework bereft of an express freedom of speech, which now gives rise to the difficulties of applying an implied freedom of political and government communication.
However, in applying the implied freedom, there comes a point at which history can have little more to say. Although commentators debate the extent to which interpretation of the Constitution must be bound by the drafters’ intentions and Federationera practices, it is accepted that the meaning of the document is not absolutely fixed in time.[98] This is particularly true of an implied doctrine and of questions of legitimacy. History is not a normative study; in and of itself it provides no answer as to whether a certain state of affairs is legitimate or illegitimate. The past interpretation of laws against insult cannot inform us of what the nature of insult is; it cannot tell us whether our political debate would be fuller if there were no such laws. It is the argument of this essay, not that it is illegitimate to govern speech, but that the legitimacy of such laws cannot ultimately be determined by reference to the historical practice of a colonial legislature that bore little resemblance to a representative government.
It is regrettable that in Coleman v Power, when it came to ascertaining whether the law was directed to a legitimate end within the meaning of the test in Lange, reference to the longstanding practice of making such laws largely sufficed for a real appraisal of their legitimacy. Legitimacy of legislative purpose and compatibility with the constitutionally-established system of representative and responsible government should be determined by reference to a contemporary understanding of the essential elements of the constitutional system. This would involve a more rigorous engagement with the nature of insult and, consequently, its necessity or otherwise in political debate.
[*] BA LLB (Hons I, University Medal) (UTS), Associate to the Hon Justice Michael Kirby AC CMG.
[1] [2004] HCA 39; (2004) 220 CLR 1.
[2] This discussion is restricted to the criminal law; it deals with civil law only to the extent that it sheds light on the criminal law's development.
[3] More fully, the test states: 'Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates ... However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end.' Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 559-562, 112; Levy v Victoria [1997] HCA 31; (1996) 189 CLR 579.
[4] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 98 [254-256] (Kirby J).
[5] Ibid 38 [56-68] (McHugh J), 86-87 [224] (Kirby J), 69 [163] (Gummow and Hayne JJ), 22 [5] Gleeson CJ), 104 [274] (Callinan J), 117 [312] (Heydon J).
[6] Vagrants Gaming and Other Offences Act 1931 (Qld) s 6.
[7] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 74-77 [183]-[193].
[8] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 79 [200].
[9] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 86 [224].
[10] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 22 [5].
[11] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 22 [5].
[12] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 117 [312].
[13] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 118 [315].
[14] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 108 [287].
[15] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 41 [67].
[16] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 53 [102].
[17] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 99 [257].
[18] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 32 [32].
[19] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 104-105 [274].
[20] Coleman v Power (2004 ) [2004] HCA 39; 220 CLR 1, 122 [325].
[21] Frank Brennan, Too Much Order With Too Little Law (1993).
[22] Robert Pullan, Guilty Secrets: Free Speech and Defamation in Australia (1994).
[23] Brennan, above n 21.
[24] Sir F Pollock, Oxford Lectures and other Discourses (1972) 83.
[25] Brennan, above n 21, 8.
[26] Pollock, above n 24, 88.
[27] J R Spencer, ‘Criminal Libel – A Skeleton in the Cupboard’ [1977] Criminal Law Review 383, 383.
[28] Pullan, above n 22, 41.
[29] Pullan, above n 22, 210.
[30] R v Butler [1992] 1 SCR 452, [207] (Helper JA, dissenting), citing R v Sidley [1685] EngR 2903; (1663), 1 Sid. 168, 82 ER 1036 and R v Curl (1727), 2 Stra. 788, 93 ER 849.
[31] Starkie, Treatise on the Law of Slander and Libel (3rd ed, 1869) 578.
[32] Pullan, above n 22, 50-51, quoting Joseph Banks in Paul Carter, ‘Emotional Maps’, in The Age Monthly Review, October 1981.
[33] Pullan, above n 22, 50, quoting Watkin Tench, A Complete Account of the Settlement at Port Jackson in New South Wales (1793) 45-46.
[34] Paul Carter, The Road to Botany Bay: An Exploration of Landscape and History (1988) xxiv.
[35] Brennan, above n 21.
[36] Brennan, above n 32.
[37] Regulation 5, 7 August 1789, Historical Records of Australia (HRA) I, 1:34.
[38] Brennan, above n 21, 33, citing Phillip to Sydney, 1 February 1790, HRA I, 1:135-36.
[39] Pullan, above n 22, 55-56.
[40] G&GO, 20 September 1795, HRA I, 1:677, quoted in Brennan, above n 21, 33-34.
[41] Hunter to Portland, 12 November 1796, HRA I, 1:676, quoted in Brennan, above n 21, 34.
[42] Hunter to King, 14 November 1796, HRA I, 1:702-3, quoted in Brennan, above n 21, 34.
[43] Hunter to Portland, 20 June 1797, HRA I, 2:23, quoted in Brennan, above n 21, 35.
[44] Jeremy Bentham, A Plea for the Constitution, 1803, quoted in Brennan, above n 21, 39.
[45] Brennan, above n 21, 39-41.
[46] Johnston to Castlereagh, 11 April 1808, HRA I, 6:212, quoted in quoted in Brennan, above n 21, 42. See further, HV Evatt, Rum Rebellion; A Study of the Overthrow of Governor Bligh by John Macarthur and the New South Wales Corp (1971).
[47] Police Regulations for the Town of Sydney, 1 January 1811, HRA 1, 7:406-13.
[48] Brennan, above n 21, 44, quoting Bathurst to Macquarie, 23 November 1812, HRA I, 7:675.
[49] See further James Bonwick, Early Struggles of the Australian Press (1890) 30; Pullan, above n 22, 57-8, 84-9. In an unhappy footnote to Happy George’s endeavours, his labours on the Gazette were carried on by his son, Robert Howe, until Robert drowned in the Harbour on a picnic-day, capsized, the picnic basket caught around his neck, after having rescued his four-year old son Alfred Australia Howe from drowning. The publishing dynasty was abruptly ended when the accident-prone Alfred Australia died eight years later of a shark attack in the McLeay River.
[50] Pullan, above n 22, 71, 93.
[51] Petition 26 January 1827, HRA I, 13:53, quoted in Brennan, above n 21, 48.
[52] Pullan, above n 22, 74, based on S K Proctor, ‘Henry Dumaresq on the Sydney Press of 1827’ (1971) 57(2) Royal Australian Historical Society Journal.
[53] Darling to Goderich, 26 July 1831, HRA I, 16:316, quoted in Brennan, above n 21, 49.
[54] Sydney Police Act 1833 Legislative Council, 4 Will. IV, No.7.
[55] Brennan, above n 21, 50.
[56] Brennan, above n 21, 50-51, citing HRA I, 18:392.
[57] Brennan, above n 21, 50-51, citing HRA I, 18:392.
[58] Brennan, above n 21, 52, citing Report of the Committee on Police and Gaols, Votes and Proceedings, Legislative Council, vol 3, 1839, 24.
[59] Ibid 52, quoting Report on the General State of the Colony, HRA I, 21:510.
[60] Ibid 54, quoting Gibbs to Stanley, 13 February 1845, HRA I, 24:250.
[61] John Stuart Mill (Stefan Collini ed), On Liberty And Other Writings (1995) viii.
[62] Ibid xi.
[63] Ibid.
[64] 6 and 7 Vict c. 96; Munslow [1895] UKLawRpKQB 21; [1895] 1 QB 758.
[65] Raelene Frances, ‘The History of Prostitution in Australia’ in Roberta Perkins, Garrett Prestage, Rachel Sharp and Frances Lovejoy (eds), Sex Work and Sex Workers in Australia (1994) 7.
[66] Quoted in Roberta Perkins, Working Girls: Prostitutes, Their Life and Social Control (1991) available online http://www.aic.gov.au/publications/lcj/working.
[67] Frances, above n 64. See eg Police Offences Statute 1865 (Vict) (28 Vict No 265); Police Act 1892 (WA) s 59, which made it an offence to ‘use any threatening, abusive or insulting words or behaviour in any public or private place, whether calculated to lead to a breach of the peace, or not’.
[68] Vagrancy Act 1902 (NSW) s 8.
[69] Vagrancy Act 1902 (NSW) s 8A, inserted by Police Offences (Amendment) Act 1908 (NSW) s 6. See, Lendrum v Campbell [1932] NSWStRp 25; (1932) 32 SR (NSW) 499.
[70] Pullan, above n 22, 132 citing, Constitutional conferences, Record of the Proceedings and Debates of the Australasian Federation Conference, Melbourne 1890, 8-15.
[71] Ibid 133.
[72] Ibid.
[73] Ibid 134.
[74] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, citing Attorney-General (Cth); Ex rel. McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1, 24 (Barwick CJ).
[75] Sir Owen Dixon, Jesting Pilate (1965) 102.
[76] Pullan, above n 22, 171.
[77] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 81 [208] (Kirby J).
[78] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 559-562; Levy v Victoria [1997] HCA 31; (1996) 189 CLR 579.
[79] Jeremy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27 Federal Law Review 323 at 325. See R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers [1959] HCA 47; (1959) 107 CLR 208 at 269 per Windeyer J; Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 537-538 per Dawson J.
[80] Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 at [19]. Cf Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ [2000] MelbULawRw 27; (2000) 24 MULR 677, on the franchise of women and unpropertied men.
[81] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 91 [238]-[239] (Kirby J), 54 [105] (McHugh J).
[82] Coleman v Power [2001] HCA 67; (2004) 209 CLR 1, 100 [260] (Kirby J).
[83] Coleman v Power [2001] HCA 67; (2004) 209 CLR 1, 124 [330] (Heydon J).
[84] Coleman v Power [2001] HCA 67; (2004) 209 CLR 1, 89-90 [223] (Kirby J).
[85] J M Coetzee, Giving Offense (1996) 3.
[86] Pierre Bourdieu, quoted in A Giddens et al, The Polity Reader in Social Theory (1994) 116.
[87] Stanley Fish ‘A Wolf in Reason’s Clothing’ in Stanley Fish, The Trouble With Principle (1999) 187-210.
[88] Zundel v The Queen (1992) 95 DLR (4th) 202 (La Forest, L’Heureux-Dubé, Sopinka and McLachlin JJ).
[89] Roger Douglas, ‘The Constitutional Freedom to Insult: The Insignificance of Coleman v Power’ (2005) 16 Public Law Review 23, 23.
[90] Ibid 23.
[91] Ibid.
[92] Ibid 38.
[93] Ibid. The third sample was not restricted in this way.
[94] See, Royal Commission Into Aboriginal Deaths in Custody RCIADIC) National Report (1991) 228-229, and vol 3, Recommendation No 86; Aboriginal and Torres Strait Islander Commission Five years on: Implementation of the Commonwealth Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (1997) 67; Chris Cuneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (2001) 25-28, 85-91.
[95] See Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 30 [28] (Gleeson CJ) and at 45 [81] (McHugh J). In the High Court, it was conceded that Coleman's words were political.
[96] Coetzee, above n 85, 3.
[97] Dr Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 MULR 688, 700.
[98] See generally, Kirk, above n 79.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AULegHist/2006/8.html