Speaking Up by Gillian Triggs

Author:Gillian Triggs [Triggs, Gillian]
Language: eng
Format: epub
ISBN: 9780522873528
Publisher: Melbourne University Publishing

Monis v The Queen: Splitting the High Court

Man Haron Monis became notorious as the lone gunman responsible for the siege in Sydney’s Martin Place and the resultant deaths of two innocent people, Tori Johnson and Katrina Dawson, in December 2014. Until then, his name would have meant little to most people outside his immediate circle—except to those with an interest in Australia’s freedom of speech laws. In February 2013, the High Court had handed down a decision in Monis v The Queen, a case that highlighted the difficulty inherent in striking a balance between freedom of speech and an abuse of that right.

Monis, a self-styled Muslim cleric, along with his then partner, was accused of sending offensive letters to the families of soldiers killed in Afghanistan, referring to them in ‘a denigrating and derogatory fashion’. The pair was charged under a section of the Commonwealth Criminal Code that prohibits the use of a postal service in a way that a reasonable person would regard as ‘menacing, harassing or offensive’. This language is comparable to that of section 18C and raised a similar legal question as to the reasonable limits on freedom of speech. The NSW Court of Criminal Appeal had earlier found that the provision was ‘reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the system of government prescribed by the Constitution’. In this finding, Chief Justice Tom Bathurst stressed that the notion of ‘offence’ was to require a strong reaction, such as anger, rage, disgust or hatred—again, mirroring the views of the Federal Court on the interpretation of section 18C.

The legal issue for the High Court on appeal was whether the Criminal Code provision impermissibly burdens freedom of communication about government or political affairs. Counsel for one of the accused, David Bennett QC, argued that the letters were ‘purely political’ and should be protected as free speech. Only six judges were available to hear the case and they were split evenly in considering whether freedom of speech had been violated. On a split decision, the lower court conviction will be upheld because there is no majority to change it.

The High Court’s chief justice French found the provision was a burden on the right of political communication and did not serve a reasonable, appropriate and legitimate end because it was too broad and was therefore incompatible with the freedom of communication necessary for representative and responsible government. Justices Kenneth Hayne and Dyson Heydon supported him; Justice Heydon nonetheless observed that the right of freedom of political communication was flawed, describing it as ‘a noble and idealistic enterprise which has failed, is failing and will go on failing’.

Justices Susan Crennan, Kiefel and Virginia Bell, the three women judges of the High Court, were unanimous in the opposite view. They agreed in a joint judgment that the provision was valid, as it was a proportionate response to a legitimate aim of government. They considered it was well understood that the degree of offensiveness

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