In a second important decision handed down yesterday (Coleman v Power), the High Court by a 4/3 majority preferred freedom of speech over civility. It ruled that unflattering words about police used by a Townsville hippie protester in a pamphlet (“KISS MY ARSE YOU SLIMY LYING BASTARDS”) were protected by the implied constitutional freedom of political speech.
As a result, Coleman’s conviction under the Vagrants, Gaming and Other Offences Act 1931 (Qld) for using “insulting words” and related offences were set aside. Since all states and territories have somewhat similar legislation and offences of “insulting words”, “offensive behaviour” and the like (usually in Summary Offences Acts), yesterday’s decision is potentially quite far-reaching. The High Court’s reasoning means that any such offences now can’t be sustained where the words or behaviour can reasonably be classified as “political speech”, unless at the very least it can be established that there was a real prospect of a breach of the peace and the legislation requires that as an element of the offence.
The facts in Coleman v Power are worth setting out at a bit more length:
In March 2000, the appellant, Patrick John Coleman, was handing out pamphlets in a mall in Townsville. The mall was a public place. One of the headings in the pamphlet was in capital letters and in bold type stated: “GET TO KNOW YOUR LOCAL CORRUPT TYPE COPS”. Behind the appellant was a placard upon which were written the words: “Get to know your local corrupt type coppers; please take one”. The second and third lines in the body of the pamphlet declared that the appellant was “going to name corrupt cops”. One of the police officers named in the pamphlet was the first respondent, Brendan Jason Power. The second page of the pamphlet contained the following statement:
“Ah ha! Constable Brendan Power and his mates, this one was a beauty – sitting outside the mall police beat in protest at an unlawful arrest – with simple placards saying TOWNSVILLE COPS – A GOOD ARGUMENT FOR A BILL OF RIGHTS – AND DEAR MAYOR – BITE ME – AND TOWNSVILLE CITY COUNCIL THE ENEMY OF FREE SPEECH – the person was saying nothing just sitting there talking to an old lady then BAMMM arrested dragged inside and detained. Of course not happy with the kill, the cops – in eloquent prose having sung in unison in their statements that the person was running through the mall like a madman belting people over the head with a flag pole before the dirty hippie bastard assaulted and 1 old lady and tried to trip her up with the flag while … while … he was having a conversation with her before the cops scared her off … boys boys boys, I got witnesses so KISS MY ARSE YOU SLIMY LYING BASTARDS.”
Three of the majority Justices (Gummow, Hayne and Kirby JJ) effectively adopted the US Supreme Court’s First Amendment test for assessing laws that incidentally burden free speech: such a law can only validly restrict free speech where the words used can reasonably be regarded as “fighting words”. As Jutices Gummow and Hayne explained:
Section 7(1)(d) is not invalid. It does, however, have a more limited operation than it was understood to have in the courts below. In particular, it does not suffice for the person to whom the words were used to assert that he or she was insulted by what was said. And it does not suffice to show that the words used were calculated to hurt the self-esteem of the hearer. Where, as here, the words were used to a police officer, then unless more is shown, it can be expected that the police officer will not physically retaliate. It follows that unless there is something in the surrounding circumstances (as, for example, the presence of other civilians who are affected by what is said) the bare use of words to a police officer which the user intends should hurt that officer will not constitute an offence. By their training and temperament police officers must be expected to resist the sting of insults directed to them. The use of such words would constitute no offence unless others who hear what is said are reasonably likely to be provoked to physical retaliation.
Knowing that we live in a robust democracy where calling coppers “slimy lying bastards’ is constitutionally protected makes me feel good about being an Australian, even if living in one where imprisoning asylum seekers indefinitely is perfectly OK rather undermines that feeling . I also think civility is an important value, but not one that the law should be able to impose, at least in political discourse. And that’s very fortunate in a political system where the PM may or may not be habitually referred to as a “lying rodent” by members of his own party!
- sic[↩]
Who was the fourth justice in the majority?
McHugh J, but he adopted a slightly narrower basis than the others’ “fighting words” test (although to similar effect).
Ken, I assume this decision doesn’t remove the right of the individual policeman who was defamed to take civil action (not that I imagine this would be profitable in this case). So it hasn’t greatly expanded constitutional protections, it’s just abolished what was in effect an invented criminal offence of defaming police.
I should have guessed that it wouldn’t be any of the reactionary three, Callinan, Gleeson or Heydon.
Howard will be disappointed with Haynes.
If Latham wins, I can think of a certain institution that is going to require some remedial work. (Yeah, yeah, I know, it’s hard to stack the High Court. Doesn’t mean you shouldn’t try.)
John
No, there’s certainly nothing to stop the individual policemen from suing Coleman for defamation. It’s unlikely that the content and circumstances of what Coleman said would attract the protection of the Lange defence of qualified privilege (which also flows from the constitutional political speech freedom). However, as you observed, one suspects that Coleman would probably not have enough assets or income to make him worth suing.
Moreover, although the offence is “invented”, summary offences of that sort exist in all states and territories and have been frequently used in demo and similar situations, so the decision has some civil liberties significance.
What if the hippy had said “KISS MY ARSE YOU SLIMY LYING RODENTS”
I was always partial to the Victorian judgement a few years ago about calling a Judge (was it?) a wanker. I’ve forgotten the reference. Can anyone dig it up?
This is great news. Does it mean that the Victorian Racial and Religious Tolerance Act is unconstitutional?
Francis,
I think you are referring to the case of Justice Beach in 1999.
L.F – Thank you that is indeed it. Great reading and I now rest secure in the knowledge that is not contempt of court to call the Judge a wanker or presumably to allege that “the rodent has his hand on his dick”.
For the record I wish the court to note that the mysterious Ms Holden who lurked in the background, as mentioned in the judgement, is, as far as I can ascertion, no relative of mine.
Whatever the law here, Coleman should count himself lucky that the particular coppers here were as professional as Gummow and Hayne would have them be.
He’s lucky he didn’t have a nasty accident on the steps of the station.
Indeed the absence of such an accident undercuts his allegations of corruption. Corruption, brutality and incompetence are then unholy trinity – you rarely find one in a police force without the others.
DD
I quite agree. I hope no-one thought I sympathised with Coleman’s opinion. I don’t. My experiences with police both in the NT and NSW (the only places I’ve lived) have been overwhelmingly positive. That’s not to say there isn’t corruption, but overall I’ve found most police to be straight and hard-working, and able to resist the temptation to beat the crap out of people who would try the patience of a saint. Coleman sounds like he’s a dickhead of that type. But a truly free country has to tolerate people like that, and mostly Australia does.
Yeah well Ken I’ve had run ins with pretty borderline cops in the NT, including one big guy who had bailed up my friends and I (at about 20 years old) and was standing there saying things like “you want a go?” and “you picking?” where we were all being very polite. It was actually quite scary, as it was clear he was looking for any provocation at all so that he and his partner could just lay into us.
I believe the hippy. And his slurs don’t appear any more defamatory than your allegation against the leader of the opposition, just posted…