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 [sic] 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!