Maxwell photoBY JACK MAXWELL 

A fortnight ago, chiropractor Chris Nelson sprang into the national consciousness with several shockingly racist posts on the Facebook page of Labor Senator Nova Peris. Senator Peris refused to delete the posts, leaving them on her page ‘to show the ugly side of this country’. Nelson denied that he was responsible, arguing that his account had been hacked.

Nelson has since been arrested and charged with using a carriage service in an offensive way, under section 474.17 of the Criminal Code 1995 (Cth). The posts were abhorrent: ‘Nova f— off. You were only endorsed by Juliar because you were a black c—. Go back to the bush and suck on witchity grubs and yams. Stop painting your f—ing face with white s— in parliament. Other than being a runner you are nothing.’ But does Nelson deserve criminal punishment for them?

This post examines the constitutionality of the offence with which Nelson was charged. It looks more generally at the challenging (and persistent) legal questions raised by Nelson’s case: can we criminalise offensive political speech? Or is such speech protected as an essential feature of the system of government established by the Constitution?

Section 474.17 of the Criminal Code

The offence under section 474.17 of the Criminal Code has two elements.

First, a person must intentionally use a carriage service, such as a telephone or the internet.

Second, the person must use the carriage service in a way ‘that reasonable persons would regard as being, in all the circumstances, offensive’. The person must intend or know that their use will be offensive, or be reckless to that risk. In determining whether conduct is offensive, the Criminal Code requires courts to have regard to its general character (including whether it is of medical, legal or scientific character), its literary, artistic and education merit, and the standards of morality and decency generally accepted by reasonable adults.

Section 474.17 has several important features, particularly in light of the debate that has raged in recent years over section 18C of the Racial Discrimination Act 1975 (Cth). The first is that section 474.17 creates a criminal offence, punishable by up to three years in prison. By contrast, section 18C imposes, at most, civil liability: a declaration that the person has acted unlawfully, an order to pay damages to the victim, and so on.

The second point is that section 474.17 is very broad. In a recent submission to the Australian Law Reform Commission, the Australian Federal Police adverted to this fact: ‘the breadth of section 474.17 is its strength, capturing a wide range of behaviours in a rapidly evolving online environment’. There are no specific defences or carve-outs. Conversely, the Racial Discrimination Act provides a broad exemption in section 18D for things said or done reasonably and in good faith, for purposes that are in the public interest.

Section 18C has been the object of intense, and at times hysterical, criticism, particularly following the high-profile case against Andrew Bolt in 2011. Earlier this year, Simon Breheny of the Institute of Public Affairs claimed that section 18C ‘is now used as a gag to any debate about race and ethnicity.’ But section 474.17 makes a more significant incursion into freedom of speech. Does this create constitutional problems?

The implied freedom of political communication

The Constitution protects political communication against impermissible interference by government. Freedom of communication on political matters is an indispensable incident of the system of representative government established by the Constitution.  For that system to operate effectively, voters must be able to exercise a free and informed choice at elections and referendums.  This requires a free flow of information on matters that might illuminate or affect voter choice.

As recently restated by a majority of the High Court in McCloy v New South Wales, the Lange test for whether a law impermissibly interferes with political communication has three limbs:

  1. Does the law effectively burden the freedom of political communication in its terms, operation or effect?
  2. If so, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of government? This is referred to as ‘compatibility testing’.
  3. If so, is the law reasonably appropriate and adapted to advance that legitimate purpose?

The final limb is referred to as ‘proportionality testing’. It has three elements. First, the law must be suitable, in the sense that it has a rational connection to the purpose of the provision. Second, the law must be necessary. There must be no obvious and compelling, reasonably practicable and less restrictive means of achieving the same purpose. Third, the law must be adequate in its balance. This requires a value judgment about the balance between the importance of the purpose and the extent of the restriction on the freedom. The law is valid only if the answer to the final limb is ‘yes’.

Does section 474.17 burden the freedom of political communication?

Were Nelson’s posts political? At least one of the posts, amid the racist epithets, touched on several political issues: the grounds for then Prime Minister Julia Gillard’s selection of Senator Peris; Senator Peris’ qualifications for the job of senator.

But this is beside the point. The first limb simply asks whether the law, in this case section 474.17, prohibits or limits the making or content of political communication.

In Monis v The Queen, the High Court considered a very similar provision. The appellants, one of them future Sydney Siege gunman Man Haron Monis, had written letters to the parents of Australian soldiers killed in Afghanistan. The letters were critical of Australia’s role in Afghanistan, and referred to the soldiers in a ‘denigrating and derogatory fashion’. The appellants were charged under section 474.12 of the Criminal Code, which prohibits the use of a postal or similar service in an offensive way.

The High Court unanimously construed the word ‘offensive’ narrowly. The law captured only conduct ‘calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances’, rather than ‘insults or slights likely to engender hurt feelings’.

Nonetheless, the law burdened freedom of political communication. The law did not target political communication, but its broad terms and general application meant that offensive political speech was prohibited.

In several cases, State courts have held that laws which prohibit certain types of speech, such as hate speech, do not burden the freedom of political communication. In Owen v Menzies, McMurdo P reasoned that such laws actually enhance communications about political matters. The incitement of hatred towards people in the grounds of race, religion, sexuality or gender could not amount to political communication ‘of the kind contemplated by the implied freedom under a diverse, modern democracy.’

In Monis, however, the High Court held that robust political debate encompassed speech that was offensive within the meaning of the Criminal Code. Chief Justice French expressly rejected the argument that speech caught by section 474.12 was ‘outside the accepted boundaries of Australian political debate and at the outer fringes of political discussion.’

In doing so, the Court drew on one of its earlier decisions on the implied freedom, Coleman v Power. The appellant in Coleman had called a police officer ‘corrupt’, and was subsequently charged with the offence of using insulting words in a public place. A majority of the Court (McHugh, Gummow, Kirby and Hayne JJ) held that insults are a legitimate part of the political debate protected by the Constitution. As Kirby J put it, ‘Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion.’

Section 474.17 thus places a burden on freedom of political communication. In prohibiting the use of a carriage service to make communications that are offensive, it prohibits some political communications.

However, the High Court’s position on the legitimate role of offensive speech in political discourse has important consequences for the other parts of the Lange test.

In pursuit of legitimate end

The second limb of the Lange test requires the court to identify the legitimate statutory object for which the law burdens political communication. An end is legitimate if its fulfilment is compatible with the constitutionally prescribed system of government.

In Coleman, the majority held that, properly construed, the law prohibiting the use of insulting words in public had a legitimate object: keeping public places free from violence. It only prohibited words intended or likely to provoke unlawful physical retaliation.

Justices McHugh, Gummow and Hayne (and possibly Kirby J) also accepted an important negative proposition: ensuring the civility of public discourse is not a legitimate end. Because insults were a legitimate element of political discourse, the object of stripping political discourse of this element was, without more, illegitimate.

By contrast, Gleeson CJ and Heydon and Callinan JJ held that the pursuit of civilised discourse in public places was a legitimate end. The law protected people from the harmful effect of public insults. It furthered ‘peaceable, civilised passage through, and assembly and discourse in public places free from threat, abuse or insult’. It promoted good political communication by deterring the kind of language that generates more heat than light.

The Court considered the same question in Monis, and was again divided. Chief Justice French (Heydon J generally agreeing) and Hayne J found that the object of section 474.12 was merely civility of discourse. This end was incompatible with the constitutionally prescribed system of government, and the law was thus invalid.

The Commonwealth attempted to justify section 474.12 as directed to a variety of other purposes, including the ‘integrity of the post’. But French CJ and Hayne J rejected these postulated objects. As French CJ put it, ‘[i]ts purpose is properly described as the prevention of the conduct it prohibits’: offensive use of the post. Importantly, section 474.12 could not be saved by the approach of the majority in Coleman. It was not directed to the prevention of violence. The law was not confined to communications in or near public places. On the contrary, it aimed to ensure the civility of private discourse.

In their joint judgment, Crennan, Kiefel and Bell JJ took a different approach. The prohibition on offensive uses of the post was directed neither to the civility of discourse, nor to the prevention of violence. Its object was to prevent the unsolicited intrusion of seriously offensive material into a person’s ‘personal domain’: their home or workplace. This end was legitimate, and thus section 471.12 was constitutional.

This justification for the law was founded on a particular conception of the home. The home is a ‘castle’ and a ‘sanctuary’. Each citizen has an interest in being free of unwanted intrusions – in this case, unsolicited material which is seriously offensive – into their home life. The state may legitimately legislate to protect this interest.

Does section 474.17 have a legitimate end?

Monis makes clear that section 474.17 cannot be justified as preventing violence. Any claim to the contrary would be based, as Hayne J put it in Monis, on ‘no more than speculative imaginings of premeditated and vengeful lawlessness which should be dismissed from consideration.’ The approach of the majority in Coleman has limited application to a provision regulating private communications, between people who are generally geographically distant.

But it also seems unlikely that section 474.17 can call on Crennan, Kiefel and Bell JJ’s reasoning in Monis. An offensive post on a Facebook page is certainly an affront, but is it an intrusion into someone’s personal domain? Is a person’s blog their ‘castle’ or ‘sanctuary’? In a different context – that of defamation – courts have taken the opposite approach. Facebook pages and blogs have been compared to very public spheres of communication: notice boards, walls of buildings and public meetings.

Section 474.17 is thus on thin constitutional ice. Its defenders have two main options. First, they might produce a new rationale for the burden it places on political communication. This avenue is fraught, however. If the objective is not carefully selected, the breadth of section 474.17 will mean that it is not reasonably appropriate and adapted to advance that objective.

Second, they could challenge the very conception of robust political discourse espoused by four judges in Coleman and three in Monis. The dissenting judgments in Coleman paint a very different picture. As Adrienne Stone has argued, both sides of this debate draw on contestable, evaluative assumptions about free political discourse: mistrust of government, protection of those vulnerable to the louder voices of others, and so on.

Who knows if Nelson’s lawyers are planning a constitutional challenge? The Facebook posts were shocking, and deserved social condemnation and censure. But section 474.17 is a blunt instrument that rests on uncertain constitutional footing. Nelson’s case raises fundamental questions about the role of offence within the system of government established by the Constitution. In both Coleman and Monis, the High Court was divided on these important questions. Several years on, there have been significant changes in the bench, with voices from both sides of the debate – Hayne, Heydon and Crennan JJ – moving into retirement. It may soon be time to revisit this important area of constitutional law.

Jack Maxwell has degrees in law and philosophy from the University of Melbourne.

Suggested citation: Jack Maxwell, ‘Does the Constitution Protect Offensive Political Speech?’ on AUSPUBLAW (15 June 2016) <https://auspublaw.org/2016/6/does-the-constitution-protect-offensive-speech/>