Conclusion
69For these reasons, the appeals should be dismissed.
70ALLSOP P: I have read the reasons of the Chief Justice. It is unnecessary for me to repeat any background material dealt with by him. I agree with the orders proposed by him and with much of his reasoning. I prefer to express my own reasons.
71As made clear in Coleman v Power [2004] HCA 39; 220 CLR 1 at 21 [3] (Gleeson CJ), 64 [147] and 68 [158], (Gummow J and Hayne J), 84 [219] (Kirby J) and 115 [306] (Heydon J), the first step in any analysis as to whether a law of a Parliament infringes the implied Constitutional freedom of political communication is to construe the relevant provision. Once construed, the two-stage test in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 (as modified in Coleman ) is to be applied, as set out in the Chief Justice's reasons.
72The process of statutory construction involves the ascription of meaning to the words used by Parliament using all relevant rules of statutory construction, both common law and statutory. A number of such principles are relevant here. First, s 471.12 is a criminal offence punishable by imprisonment for up to two years. It would be wrong to attribute to Parliament an intention to criminalise conduct to this extent unless it was of a serious character. This can be seen as an incident of the principle of legality that the community's entitlement of free expression is not to be abrogated or truncated otherwise than by clear expression and that the law has to take due account of the rights and freedoms of citizens and those within the country: Melser v Police [1967] NZLR 437 at 443-446; Coleman at 25 [11]-[12] (Gleeson CJ).
73Secondly, the word offensive takes its meaning from its context. Here, the linking of the words "menacing, harassing or offensive" indicates that they should be understood as informing the meaning of each other by their collocation and textual context: Evans v Stevens (1791) 4 TR 224 at 227; 100 ER 986 at 987, cited by Spigelman CJ in Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 at [30]; D C Pearce and R S Geddes Statutory Interpretation in Australia (7 th Ed, 2011) at 135 [4.25]. Textual context in this sense is particularly important where a word (such as "offensive" here) has a broad scope of possible meaning or many shades of meaning: Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1 at 11 and 16-17 (Fisher J). Here, the nearby words in the same provision are "menacing" and "harassing". Both have an element of personal direction at the recipient of the post; both contain an element of calculated conduct, though objective in character; both have a serious quality of objectionability in civil society.
74The context of the section is Div 471 entitled "Postal Offences". Surrounding provisions deal with serious subject matters: hoaxes involving explosives and dangerous substances: s 471.10; threats: s 471.11; dangerous articles: s 471.13; explosives or dangerous or harmful substances: s 471.15.
75As a provision concerned with the postal or similar service, whether public or private (see s 470.1), the provision is directed to a service that brings communications into the homes or places of work or business of people, generally in envelopes or packages that will be opened by the person to whom the communication is addressed. Thus, the seriousness of the use of the postal service that brings into the personal domain of an addressee a communication that is menacing or harassing or offensive is derived, in part, from the invasion of that personal domain of the addressee.
76Thirdly, the Acts Interpretation Act 1901 (Cth), s 15A, requires that the provision be read subject to the Constitution and so as not to exceed the legislative power of the Commonwealth; see also Gypsy Jokers Motorcycle Club Inc v The Commissioner of Police [2008] HCA 4; 234 CLR 532 at 553 [11] (Gummow J, Hayne J, Heydon J and Kiefel J) and New South Wales v The Commonwealth [2006] HCA 52; 229 CLR 1 at 161-162 [355] (Gleeson CJ, Gummow J, Hayne J, Heydon J and Crennan J). Relevantly, here, the provision should be read, if possible, in a way that will not offend the implied freedom of political communication. This consideration will affect the content of the notion of offensive in s 471.12, in the light of the purpose of the provision. It is to be noted, however, that the operation of the provision of itself caters, to a degree, for the Constitutional principle. The offending conduct must be such that reasonable persons would regard, in all the circumstances, the use as offensive. Such circumstances would be taken to include the recognition by reasonable persons of the existence and importance to Australian democracy and representative government of the freedom and thus of a possibly legitimate purpose for the use of the post, even if the use, through the communication, may offend the recipient of the communication.
77This last rule of construction thus ties the process of ascription of meaning to the provision in question closely to the operation and consideration of the two-stage test in Lange and Coleman . This is especially so where, as here, one has a broad relative concept, such as "offensive". The process of construction or reading down can be done within a broad scope of content of meaning of such a word to a relevant content, if any, as would not lead to constitutional invalidity. Of course, if competing considerations make such a reading down impermissible as contrary to the proper meaning of the word, then the Court is not permitted to rewrite the section. It is construction of the words of Parliament that is the task being engaged in, not legislative drafting.
78The purpose of the provision was said by the Director of Public Prosecutions to be "the integrity of the post". The appellants' submissions tended to deride this expression of the matter as inappropriately vesting services with some animate form or essence. I respectfully disagree with that criticism. Part of an ordered and civil society involves communications that come to individuals, personally addressed to them, at their homes or other places by some form of postal service. Use of the postal service that is menacing, harassing, or offensive intrudes upon members of the community in a way which could undermine a sense of civil peace and security by permitting the intrusion of such communications into the lives of members of the community, without warning and without their consent. It is legitimate in the maintenance of an orderly, peaceful, civil and culturally diverse society such as Australia that services that bring communications into the homes and offices of people should not be such as to undermine or threaten a legitimate sense of safety or security of domain, and thus public confidence in such services.
79The above is the context in which to give meaning and content to the word "offensive" in s 471.12. The word "offensive" is a relative descriptor. It is, of course, the way the postal service is used that is to be offensive - not that someone is in fact, or may be, offended by a communication sent via the post. The character of the use is the question - by reference to an objective standard: see the discussion in the note by Mr Hutley (as his Honour then was) in (1941) 14 Australian Law Journal 384 at 385. A standard is required for the assessment by reasonable persons, in all the circumstances, of the intrinsic quality of the act: Anderson v Kynaston [1924] VLR 214 at 217 (Cussen ACJ), Ball v McIntyre (1966) 9 FLR 237 at 240-241 (Kerr J) and R v Burgmann (Court of Criminal Appeal, 4 May 1973, unreported), in particular, Jacobs P. To predicate satisfaction of a provision such as s 471.12, insofar as it refers to "offensive", on the finding that the person to whom the communication was made was offended would be an intolerably wide meaning for a criminal provision. The use of the service must be offensive in a serious way and judged so intrinsically by reference to a standard against which the quality of the communication sent via the post can be judged. The need for a standard to assess the quality of the act in question is assisted by the requirement that it is what reasonable persons in all the circumstances would regard as offensive use of a postal service. Thus, as Mr Hutley said in his note at 385, this excludes the citizen "lacking the vanity of the Coroner in Ex parte Collier [(1877) 1 Knox (NSW) 513] or the touchiness in money matters of the prosecutor in Sellers v Bishop [(1905) 11 ALR (CN) 61] or the exaggerated sense of personal rectitude of the prosecutor in Windred v Manion [(1918) 14 Tas LR 36]".
80One is assisted in the task of ascription of meaning to the word "offensive" here by the consideration of cases such as Worcester v Smith [1951] VLR 316, Ball v McIntyre , R v Burgmann and Inglis v Fish [1961] VR 607, as discussed by the Chief Justice. The word "offensive" is capable of encompassing within its meaning the sense that the act or communication is such as to cause, amongst other things, hurt or wounding. It also encompasses the sense that the act or omission is such as to cause or arouse anger, outrage, resentment, disgust or hatred. How wide the meaning should be taken to be in the context of the implied political freedom requires an appreciation of the potential scope of the political freedom.
81The impact of the implied freedom on construction depends upon the extent to which the communications protected by the Constitutional freedom could be expected to fall within the meaning of the provision. The freedom is derived from the text and structure of the Constitution and the form of representative government provided for in the Constitution: Lange at 560. The freedom, so textually founded, is to protect choice inhering in the election of representatives by the ensuring of "an opportunity to gain an appreciation of the available alternatives": Lange at 560, citing Dawson J in Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; 177 CLR 106 at 187. The election is of representatives to pass laws in Parliament, the constitutionality of which is, at root, founded on their rational character: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at 512-513 [101]-[102] (Gaudron J, McHugh J, Gummow J, Kirby J and Hayne J), made after rational debate, which laws are to be administered by the Executive reasonably and in good faith, and adjudicated upon by an independent judiciary reasoning according to rational, fair and just criteria. The freedom is not absolute or an uncontrolled licence, but an implication of freedom under law of an ordered and democratic society: Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; 177 CLR 106 at 169 (Deane J and Toohey J) for the protection of a system of government of laws and not men, through the free choice of representatives in order that they might make rational coherent law and guide or lead an ordered civil society. In these circumstances, it was available to conclude that the communications so protected were of rational and reasoned debate, even though such debate might be "full, compelling, trenchant, robust, passionate, indecorous, acrimonious and even rancorous": Coleman at 125 [330] (Heydon J). The consequence of this view would be that there was no call for the protection of communications that are calculated to cause significant anger, significant resentment, disgust, outrage or hatred.
82That, however, is not the limit of the protection. In Coleman , McHugh J said at 54 [105] the following:
"The use of insulting words is a common enough technique in political discussion and debates. No doubt speakers and writers sometimes use them as weapons of intimidation. And whether insulting words are or are not used for the purpose of intimidation, fear of insult may have a chilling effect on political debate. However, as I have indicated, insults are a legitimate part of the political discussion protected by the Constitution. An unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom. Such a prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted to maintaining the system of representative government."
It is, with respect, not clear whether Gummow J and Hayne J at 77 [195] agreed with this paragraph when they said that the freedom described in Lange operated on the common law and the legislative authority of the polities in the manner described by McHugh J. In any event, they themselves said at 78 [197] that insult and invective are well-known forms of political communication. Kirby J at 91 [239] said that insult, emotion, calumny and invective are part of the "armoury" of political persuasion and the struggle for ideas. Political communication may, as Gleeson CJ said in Coleman at 31 [28] include "indecency, obscenity, profanity, threats, abuse, insults and offensiveness" (though the Chief Justice was not of the view that the implied political freedom necessarily protected such communications, indeed to the contrary).
83Recognising the scope of the protection referred to by McHugh J, Gummow J, Kirby J and Hayne J in Coleman , the word "offensive" in s 471.12 should not extend to use of a character calculated to cause hurt or injury to feelings or even to wound. The seriousness and gravity of the notion of offensive in this context should be limited, at least, as the Chief Justice says to use of a character objectively calculated or likely to cause or arouse significant anger, significant resentment, disgust, outrage or hatred.
84So provisionally construed, is the provision valid? Does the law, so construed, effectively burden freedom of communication about government or political matters by its terms, operation or effect? The provision is not one that by its purpose is directed to communications about government or political matters: cf Australian Capital Television Pty Ltd v The Commonwealth at 143 (Mason CJ), 169 (Deane J and Toohey J) and 234-235 (McHugh J); Nationwide News Pty Ltd v Wills [1992] HCA 46; 177 CLR 1 at 76-77 (Deane J and Toohey J); Cunliffe v The Commonwealth [1994] HCA 44; 182 CLR 272 at 299-300 (Mason CJ), 337-339 (Deane J) and 388 (Gaudron J); and Levy v Victoria [1997] HCA 31; 189 CLR 579 at 618-619 (Gaudron J). Nevertheless, it criminalises the use of the postal services for types of communications. Undoubtedly, the postal services are essential mechanisms by which communication about political and governmental matters are carried out and made. Even if one limits the matters to those to which I have referred above, given the potential scope of political communication, the provision would effectively burden freedom of communication about governmental or political matters. Some political communications may, by their very nature, be objectively calculated or likely to cause or arouse significant anger, significant resentment, outrage, disgust or hatred. The question as to the provision's validity is whether it is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people.
85I have earlier described what I consider to be the legitimate end of the provision in respect of the postal services. Is the provision adapted to serve that end in the compatible manner? It would clearly not be if it criminalised any use of the post to communicate material that would or might offend some people. That is not, however, the content of the conduct criminalised as I have suggested.
86One can readily contemplate political communications sent by the post that are calculated to cause or arouse significant anger, significant resentment, disgust, outrage or even hatred. This is conduct that might in the eye of the sender of the communication aptly polarise and bring to public attention the extreme or unpopular view of the sender. A sense of anger, outrage, resentment, disgust or hatred caused by the making of the communication may be the perceived change to political consciousness or a step along that path that is thought to be required. This may be attempted by many means, including abusive or hurtful statements. Parties are free to communicate in the way described by McHugh J, Gummow J, Kirby J and Hayne J in Coleman . Accepting this, the criminalising of conduct that is objectively calculated or likely to cause or arouse significant anger, significant resentment, outrage, disgust or hatred may be seen to strike at a range of a legitimate type of communications on political or governmental matters.
87That said and accepted, it is necessary to recognise that an important feature of the post is that it enters into the home or place of work or business of the recipient as an addressee (even if some addressees may be generic such as 'the householder'). A distinction may be drawn between the general freedom to distribute information on political and governmental matters and forcing upon people in their own homes or domains by use of the post information calculated to offend in the way that I have described. There may be seen to be a clear interest in prohibiting intrusion into the homes, workplaces and private domains of people of communications calculated to offend in this way; cf Rowan v United States Post Office Department 397 US 728 at 736-737 (1970) and Cohen v California 403 US 15 (1971).
88The question is whether the protection of the citizen from the invasion into his or her home or domain by unwanted and unrequested communications calculated or likely to offend in the way that I have described is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Limited in the way I have suggested: use of the postal service of a character objectively calculated or likely to cause or arouse significant anger, significant resentment, disgust, outrage or hatred, the provision is reasonably appropriate and adapted to serve the end of maintaining confidence in the postal services bringing communications to people in their homes, workplaces or personal domains. The difficulty is whether it is so adapted in a manner that is compatible with the ends of the freedom protected. This is an evaluation of some difficulty. I was initially of the view that even so construed the criminalisation of conduct potentially within the scope of political or government communications meant that the provision was not compatible with the ends that the freedom seeks to maintain. It would, for instance, risk making criminal the use of the post to send to all people or a large group of people a communication on governmental or political matters that would be objectively calculated or likely to cause significant anger, significant resentment, disgust, outrage or hatred by expression of strongly held and bitterly opposed beliefs. The tribunal of fact would, of course, be required to recognise that one of the circumstances that reasonable persons would take into account would be the recognition of the existence and importance of the freedom of political expression.
89One way of reading the provision that would perhaps be seen as ensuring its validity would be to give an even narrower content to "offensive", though still conformable with its legitimate linguistic and contextual meaning. An additional qualification could be added, being one that takes an element of meaning from the surrounding words of "menacing" and "harassing" by being directed to an additional requirement of causing of real emotional or mental harm, distress or anguish to the addressee. This would see the word "offensive" mean "use of the postal service in a manner or of a character objectively calculated or likely (a) to cause or arouse significant anger, significant resentment, disgust, outrage or hatred and (b) to cause real emotional or mental harm, distress or anguish thereby".
90So further limited, the provision would provide a positive answer to the second Lange question. One can engage in political communication of the most robust, insulting and disgusting character without being calculated or likely to cause real emotional or mental harm or distress or anguish thereby, to recipients of communications in the post. It is one thing for a communication to be calculated or likely to cause or arouse significant anger, significant resentment, outrage, disgust or hatred. It is another for it to be also objectively calculated or likely to harm emotionally or mentally in a real way thereby through the use of the postal service carrying communications into the home or personal domain of an addressee of a communication.
91It must, however, be recalled that this is a process of statutory construction and not legislative drafting. In the end, I am content to rest with the meaning of "offensive" proposed by the Chief Justice. Though there is a not insignificant potential impact upon communications that could be on political or governmental matters, the considerations of the protection of the confidence of people using the postal services and the prevention of a sense of invasion into the lives of addressees or recipients of post, uncalled for and uninvited, through the postal services are such as to make the means compatible in the relevant respects called for. Persons can offend in the way proscribed by s 471.12 without using the post: cf Cohen v California at 21 and Rowan v Post Office Dept at 738.
92For these reasons I agree with the orders proposed by the Chief Justice.
93McCLELLAN CJ at CL: I have had the considerable benefit of reading in draft the reasons of the Chief Justice and the President.
94The appellants have been prosecuted for an alleged breach of s 471.12 of the Criminal Code 1995 (Cth). That section makes it an offence to use a postal service in a way "(whether by the method of use or the content of the communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive."
95The appellants submitted that the indictment under which the respondent seeks to have them tried should be quashed because it infringes the implied constitutional freedom of political communication. The appellants' argument relies upon the High Court's confirmation of the protection by the Commonwealth Constitution of the freedom of communication between people concerning political or government matters ( Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520). The freedom is not absolute but "is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution" (at p 561).
"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." (p 561-562)
96Two questions arise ( Lange at p 567-568 Coleman v Power [2004] HCA 39; 220 CLR 1 at [93]-[96]). The first question is whether s 471.12 of the Criminal Code has the effect of burdening the freedom of communication about government or political matters. The primary judge answered this question in the affirmative. The appellants and the Solicitor General for the State of New South Wales who intervened agree with that answer. The Director of Public Prosecutions ("DPP") contends to the contrary.
97The second question is whether the section is reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the system of government prescribed by the Constitution. Her Honour also answered this question in the affirmative. The appellants contend to the contrary.
98Section 471.12 was added to the Criminal Code in 2002. Accordingly, it may be assumed that the Parliament when enacting the amendment was mindful of the High Court's decision in Lange .
99The section does not proscribe all conduct of the relevant kind but only that which "reasonable persons" would regard in all the circumstances as having the relevant character. The reasonable person test is of course a formulation utilised in many areas of the law, including the criminal law. In the present context the reasonable person will be attributed with knowledge of the Australian system of government and with the nature of political discourse within the Commonwealth and otherwise with a knowledge of acceptable contemporary norms of written communication between persons.
100The Macquarie Dictionary defines "menacing" as conduct which imports a threat to cause harm or injury. To "harass" would be commonly understood as meaning to "trouble by repeated attacks" (Macquarie Dictionary). "Offensive", in the present context, (which would obviously exclude the use of the term in relation to war), is given meaning by the dictionary covering the range from "causing offence or displeasure to repugnancy in the moral sense or insulting" (Macquarie Dictionary).
101The argument in the present case was not concerned with the consequence of the inclusion of the words "menacing" or "harassing" in the section but with the word "offensive." As Gleeson CJ said in Coleman v Power (2004) 220 CLR 1 at [12] concepts of what is offensive will vary with time and place and may be affected by the circumstances in which the relevant conduct occurs. In Ball v McIntyre (1996) 9 FLR 237 to which Gleeson CJ referred in Coleman, Kerr J held that the conduct of a demonstration against the Vietnam war which may have been offensive to some people was not offensive within the meaning of the relevant statute.
102Some of the judges in Coleman discussed the reach of communications which are protected by the implied freedom of political communication. In Australia communications concerning political or governmental matters may be "insulting," "biting" or "offensive" (McHugh J at [81]). Australian politics "has regularly included insult and emotion, calumny and invective" (Kirby J at [239]). Their Honours' approach may be described as robust.
103Heydon J adopted a more refined approach to what might constitute legitimate political discourse. His Honour said:
"To address insulting words to persons in a public place is conduct sufficiently alien to the virtues of the free and informed debate on which the constitutional freedom rests that it falls outside it" [332].
104Kirby J responded to Heydon J in these terms (at [238]-[239]):
"Reading the description of civilised interchange about governmental and political matters in the reasons of Heydon J, I had difficulty in recognising the Australian political system as I know it. His Honour's chronicle appears more like a description of an intellectual salon where civility always (or usually) prevails. It is not, with respect, an accurate description of the Australian governmental and political system in action.
One might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion. They are part and parcel of the struggle of ideas. Anyone in doubt should listen for an hour or two to the broadcasts that bring debates of the Federal Parliament to the living rooms of the nation. This is the way present and potential elected representatives have long campaigned in Australia for the votes of constituents and the support of their policies. It is unlikely to change. By protecting from legislative burdens governmental and political communications in Australia, the Constitution addresses the nation's representative government as it is practised. It does not protect only the whispered civilities of intellectual discourse. 'Insulting' therefore requires a more limited interpretation in order for s 7(1)(d) to be read so as not to infringe the constitutional freedom defined in Lange. "
105Although Heydon J's views as to the limit of legitimate political communication were not shared by the other members of the court, his Honour's remark makes plain that there are limits to the level of offence which may be occasioned by a protected communication. If that limit is passed, the implied constitutional freedom will not protect the maker of the statement.
106Section 471.12 creates a criminal offence and must be understood in that context. When determining the reach of the section it must be borne in mind that the reasonable person will be mindful of the robust nature of political debate in this country when considering whether in the circumstances of the particular case the use of the postal service was menacing, harassing or offensive.
107It is not difficult to accept that if the postal service was used to forward faeces to another, even in pursuance of a political objective or in making a political statement, reasonable persons would find that use of the postal service to be offensive within the section. If the level of invective in any postal communication was such as to cause psychological injury to an otherwise reasonably robust personality or tend to invite a spontaneous response in breach of the peace, reasonable persons may also regard that use as relevantly offensive. This conclusion will follow from the fact that the reasonable person would consider that the offence occasioned by these uses of the service has the consequence that they fall outside the limits of legitimate political debate.
108It is unnecessary to decide whether any communication touching upon matters of politics or government, however extreme, is a communication about government or political matters and will fall within the first limb in Lange. For present purposes I accept that it is, although the contrary argument has merit. Accordingly, for present purposes however menacing, harassing or offensive such a communication it would nevertheless be a communication which is prima facie protected by the implied constitutional freedom of political communication.
109The question in the present case is whether the section is a reasonably appropriate response fairly adapted to meet the legitimate end of regulating the postal service which is compatible with the system of government proscribed by the constitution ( Lange at 562). To prohibit the use of the mail service in the Dictionary sense of to offend, ie cause displeasure, insult or occasion displeasure in the moral sense would clearly infringe the implied constitutional freedom of political communication and would be incompatible with the maintenance of the system of government prescribed by the Constitution.
110The consideration of previous decisions referred to by the Chief Justice, which I have found of assistance and need not repeat, reveals the problems which the courts have faced in giving meaning to legislation which criminalises offensive behaviour. Without any statutory indication of the standard against which to assess the quality of the particular conduct the task has proved to be difficult. It can only be undertaken by attempting to identify particular characteristics of the conduct or its possible consequences.
111In Coleman , the High Court, by majority, rejected the challenge to the validity of the relevant section of the Vagrants, Gaming and Other Offences Act 1931 (Qld). Gummow and Hayne JJ arrived at this conclusion by confining the operation of the section to words used in a public place which are provocative "in the sense that either they are intended to provoke unlawful physical retaliation or they are reasonably likely to provoke unlawful physical retaliation" [183] from another person. Construed in this manner the section was reasonably appropriate and adapted to keeping public places free from violence and accordingly compatible within the maintenance of the system of government provided by the Constitution.
112Kirby J confined the operation of the section "to the use in or near a public place of threatening, abusive or insulting words that go beyond hurting personal feelings and involve words that are reasonably likely to provoke unlawful physical retaliation" and accordingly the section did not "diminish, disproportionately, the federal system of representative and responsible government" [256] (see also Callinan J [298]).
113McHugh J took a different view. His Honour did not accept the submission of the Solicitor-General for Queensland to the effect that the object of the relevant section was to proscribe statements which may provoke a breach of the peace. His Honour also rejected the proposition that the relevant section was aimed at removing threats, abuse and insults from the area of public discussion, so that persons would not be intimidated into silence [101].
114The actual decision as opposed to the principles discussed in Coleman is of little assistance when construing s 471.12. The offering of an insult or the making of a statement which causes offence in a public place may, as the majority said in Coleman, lead to a breach of the peace which it is proper for the criminal law to endeavour to seek to avoid and for that purpose provide a relevant offence. However, it may be different when the communication is made in private and through the postal service.
115The postal service is provided to facilitate personal, business and other communication. A great many, indeed the overwhelming frequency of its uses, will be for purposes entirely unrelated or only incidental to any matter relating to politics. The reasonable person will be aware of the nature and purpose of the service. Such a person will also be aware of the robust nature of accepted political discourse in Australia.
116There can be no doubt that the communications the subject of the present proceedings would be grossly offensive to many people whether the intended recipient of the communication or otherwise. However, the validity of the section cannot be assessed by considering the context of a particular communication or its capacity to cause displeasure, insult or engender moral outrage or harm an individual. History is replete with occasions when the expression of views which occasion moral outrage in one generation pass with little comment in another. Communications intended to incite a physical response occasioning harm to an individual or group may be universally condemned in any generation but those which offend or hurt feelings or occasion moral outrage may not have the same quality. However, it is not for this Court to express an opinion as to the character of the alleged conduct of the appellants. That will be a matter for the jury at any trial.
117As I have previously emphasised, before there can be a breach of s 471.2 the use made of the postal service must be a use in a way which a reasonable person would regard as offensive. This was the approach suggested by Mr Hutley to be necessary if legislation proscribing offensive conduct is to have effective operation (14 ALJ 384). This was also the issue emphasised by Reynolds JA in R v Burgmann (Court of Criminal Appeal, 4 May 1973, unreported).
118As I understand the view of the majority in Coleman the Parliament is entitled by statute to provide a boundary beyond which political or government communications may be constrained as a breach of the criminal law. However, in the present context given the robust nature of legitimate political or governmental communications, before any statutory control will be valid it must operate to allow the accepted latitude in the use of the postal service. To my mind s 471.12 conforms to this requirement. A political communication which in the ordinary meaning of the word is offensive does not fall within the section. The section will only be breached if reasonable persons, being persons who are mindful of the robust nature of political debate in Australia and who have considered the accepted boundaries of that debate, would conclude that the particular use of the postal service is offensive.
119In my opinion the section is reasonably appropriate and compatible with the system of government prescribed by the Constitution.
120I agree with the orders proposed by the Chief Justice.