HAYNE J.
The facts
The appellant in the first appeal ("the first appellant") allegedly sent letters (and in one case a recorded message) to relatives of several soldiers killed in action in Afghanistan and the mother of an Austrade official killed in the bombing of a hotel in Indonesia. Each communication conveyed the author's views about a controversial political matter: the deployment of the Australian Defence Force in Afghanistan. In form, each communication offered condolences to the relatives of the deceased but, in intemperate and extravagant language, each also urged the rejection of the policies which see Australian forces engaged in Afghanistan. At least some of the communications directly insulted those who had died.
The prosecution of the appellants
The Commonwealth Director of Public Prosecutions filed an indictment in the District Court of New South Wales charging the first appellant with 12 counts of using a postal service in a way that reasonable persons would regard as being, in all the circumstances, offensive, contrary to s 471.12 of the Criminal Code (Cth) ("the Code"). The indictment further charged the first appellant with one count of using a postal service in a way that reasonable persons would regard as being, in all the circumstances, harassing, again contrary to s 471.12 of the Code. The indictment charged the appellant in the second appeal ("the second appellant") with eight counts of aiding and abetting the first appellant in using a postal service in a way that reasonable persons would regard as being, in all the circumstances, offensive, contrary to ss 11.2(1) and 471.12 of the Code.
Section 471.12 of the Code provides:
"Using a postal or similar service to menace, harass or cause offence
A person is guilty of an offence if:
(a) the person uses a postal or similar service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 2 years."
The course of proceedings
The appellants moved to quash the indictment. They alleged that s 471.12 of the Code is invalid. At first instance, Tupman DCJ dismissed the motion to quash.
The appellants appealed to the Court of Criminal Appeal of the Supreme Court of New South Wales. In the course of the appeals, the first appellant abandoned his challenge to the validity of so much of s 471.12 as makes it an offence to use a postal service in a way that reasonable persons would regard as being harassing. Thus the only question for the Court of Criminal Appeal was whether s 471.12 is valid when it makes it a crime to use a postal service in a way that reasonable persons would regard as being offensive. The Court of Criminal Appeal (Bathurst CJ, Allsop P and McClellan CJ at CL) held that s 471.12 is valid and dismissed the appeals.
By special leave, each appellant appealed to this Court.
The issue and its resolution
The issue in these appeals can be stated briefly. The Parliament of the Commonwealth has no power to make a law inconsistent with that freedom of communication on matters of government and politics which is an indispensable incident of the constitutionally prescribed system of representative and responsible government. Is a law which makes it a crime to use a postal or similar service to make a communication about government or political matters in a way that reasonable persons would regard as being, in all the circumstances, offensive beyond legislative power? For the reasons that follow, that question must be answered: "Yes".
History, not only recent history, teaches that abuse and invective are an inevitable part of political discourse. Abuse and invective are designed to drive a point home by inflicting the pain of humiliation and insult. And the greater the humiliation, the greater the insult, the more effective the attack may be. The giving of really serious offence is neither incidental nor accidental. The communication is designed and intended to cause the greatest possible offence to its target no matter whether that target is a person, a group, a government or an opposition, or a particular political policy or proposal and those who propound it. And any reasonable person would conclude that not only is that the purpose of what was said, its purpose has been achieved.
If examples are sought, and recent Australian political history is thought too controversial, consider O'Connell's attack on Disraeli in 1835, with its references to the impenitent thief and what now are rightly seen as racial or religious slurs. Or look to Lloyd George's speech in the House of Commons about Sir John Simon acting "as if [he] has been a total abstainer all his life and has suddenly taken to drink ... and landed amidst the Tory drunkards". The examples can be multiplied.
Particular attacks may be admired, others condemned. But admiration or condemnation depends not upon whether offence is given but upon the content of the views that are advanced or attacked and the identity of those associated with those views. Great care must be taken in this matter lest condemnation of the particular views said to have been advanced by the appellants, or the manner of their expression, distort the debate by obscuring the centrality and importance of the freedom of political communication, including political communications that are intended to and do cause very great offence. If s 471.12 is valid, communications of that kind cannot be reduced to writing and sent by use of a postal or similar service. To do so would be a crime because reasonable persons would consider the communication to be, in all the circumstances, seriously offensive. Yet being seriously offensive was the plain political purpose of the communication.
The conclusion that s 471.12 does not validly make it a crime to use a postal or similar service to make a communication about government or political matters in a way that reasonable persons would regard as offensive is required by earlier decisions of this Court, in particular Lange v Australian Broadcasting Corporation and Coleman v Power. No party or intervener sought to reopen those decisions or to submit that they should not be followed and applied. Both the principles stated in those cases and the actual decisions reached in them require the conclusion that s 471.12 is too broad in its operation with respect to offensive use of a postal or similar service. That aspect of the section is directed generally to preventing serious offence, not to some other object or end the pursuit of which would be compatible with the maintenance of the constitutionally prescribed system of government and the freedom of political communication which is its indispensable incident. More particularly, s 471.12 makes it a crime to send by a postal or similar service an offensive communication about a political matter even if what is said is true. It makes it a crime to send by a postal or similar service an offensive communication about a political matter that is not only offensive but defamatory, even when, applying Lange, the publisher would have a defence of qualified privilege to a claim for defamation.
The arguments
On the hearing of the appeals, arguments were advanced on behalf of each appellant, the Commonwealth Director of Public Prosecutions on behalf of the first respondent and the Attorney‑General for the State of New South Wales as second respondent. In addition, separate arguments were advanced on behalf of the Attorneys‑General for the Commonwealth and the States of Queensland, South Australia, Victoria and Western Australia intervening in support of the respondents pursuant to s 78A of the Judiciary Act 1903 (Cth). The arguments for invalidity of s 471.12 (in its application to "offensive" uses) advanced by the appellants were not identical and the arguments of the respondents and interveners in support of validity also differed, as between themselves, in a number of respects. It is neither necessary nor desirable to attempt to trace these differences precisely. It is, however, useful to identify immediately five principal strands in the arguments.
The construction of s 471.12
The respondents and interveners generally accepted that what amounts to an "offensive" use of a postal or similar service for the purposes of s 471.12 should be understood in the manner described by Bathurst CJ in the Court of Criminal Appeal: the use must be calculated or likely to arouse "significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances". For the purposes of argument, the appellants were content to adopt the same construction but they also submitted that the better view is that "offensive", when used in s 471.12, encompasses any affront to feelings.
These reasons conclude that the appellants' submissions about construction should not be accepted. It is convenient to adopt the description used by Bathurst CJ as a general description of the kind and intensity of reaction that must be evoked by the relevant conduct.
A burden on the freedom of political communication?
All parties and interveners accepted that s 471.12 prohibits the making of some communications about government or political matters. But the first respondent and several interveners submitted that s 471.12 does not "effectively burden" the freedom of political communication because its effect could be described as de minimis, insubstantial, slight or unrealistic. They submitted that this was a sufficient basis for concluding that s 471.12 is consistent with the freedom of political communication.
These reasons conclude that s 471.12 does effectively burden the freedom of political communication. And even if it were right to describe the burden which this law imposes as only a little burden, a law imposing a little burden will only be consistent with the freedom of political communication if it is (a) directed to an object or end compatible with the maintenance of the constitutionally prescribed system of government and its necessary incident the freedom of political communication and (b) reasonably appropriate and adapted to achieving that legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of government and with the freedom of political communication.
The object or end of the "offensive" limb of s 471.12?
The parties and interveners suggested a number of possible objects or ends to which s 471.12 is directed in its operation with respect to "offensive" uses of a postal or similar service. Candidates included promoting the civility of discourse, preserving the integrity of the post, protecting mail recipients from offence, and preserving an ordered society by preventing violence.
These reasons conclude that the object or end to which s 471.12 is directed must be determined by the ordinary processes of statutory construction. It follows that the object or end to which the "offensive" limb of the section is directed is preventing the use of a postal or similar service in a way that would give offence.
Is the object or end legitimate?
However the object or end of s 471.12 is described, the respondents and interveners submitted that the object or end was legitimate because the section does one or more of three different things: it preserves the integrity of the post, it keeps the peace by avoiding violent responses by those who are offended, and it protects mail recipients (and others) from offence.
These reasons conclude that, in its legal and practical operation, the relevant part of the section protects mail recipients and others from offence. This is not a legitimate object or end. It is not compatible with the maintenance of the constitutionally prescribed system of government and its necessary incident the freedom of political communication. The section goes no further than maintaining the civility of discourse carried on by means of a postal or similar service. Section 471.12 does not protect the "integrity of the post". It makes no real or substantial contribution to keeping the peace. And it was not shown to be directed to achieving any further social good other than penalising, and so protecting against, conduct that is offensive.
Reasonably appropriate and adapted to a legitimate object or end?
In these appeals, the critical question is whether the object or end of s 471.12 is legitimate. These reasons conclude that it is not. Questions about the proportionality of the legislative means chosen for achieving a legitimate object or end thus do not arise.
But if, as the respondents and interveners submitted and these reasons deny, s 471.12 is directed to a legitimate object or end, the respondents and interveners submitted that the section is reasonably appropriate and adapted to achieving that end in a manner that is compatible with the maintenance of the constitutionally prescribed system of government. The general thrust of the submissions was that s 471.12 is a narrowly defined offence which leaves unregulated many other ways for people to communicate about government or political matters.
If a law is narrowly tailored to a legitimate object or end, the conclusion that the law is reasonably appropriate and adapted to that object or end readily follows. But these reasons conclude that, by making all seriously offensive uses of a postal or similar service an offence, including those uses where the user would have a defence of truth or of qualified privilege to a claim for defamation founded on that use, the relevant part of s 471.12 goes too far and is invalid.
In order to identify the relevant content of the arguments and conclusions just described, it is necessary to state some established and unchallenged principles.
Applicable principles
The Constitution provides for a system of representative and responsible government. Sections 7 and 24 of the Constitution provide that the two Houses of the Parliament must be "directly chosen by the people". Section 64 requires that no Minister of State hold office "for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives". Those who are elected as members of the Parliament and those who are appointed as Ministers of State are necessarily accountable to "the people" referred to in ss 7 and 24. Additionally, s 128 provides that the Constitution shall not be altered except in the manner provided in that section; in particular, only "if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law". As the whole Court said in Lange, it follows from these and other provisions that "[f]reedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates".
Because freedom of communication on matters of government and politics is an indispensable incident of the constitutionally prescribed system of government, that freedom cannot be curtailed by the exercise of legislative or executive power and the common law cannot be inconsistent with it. But the freedom is not absolute and it follows that the limit on legislative power is also not absolute.
To observe that the freedom is not absolute is not to say that it must yield to accommodate the regulation of conduct which a majority of members of the Australian community may consider to be repugnant. Nor does the observation that the freedom is rooted in implication rather than in the express text of the Constitution make it brittle or otherwise infirm, or make it some lesser or secondary form of principle. Rather, accepting that the freedom is not absolute recognises that it has boundaries. But within those boundaries the freedom limits legislative power.
The accepted doctrine of the Court is that where a law has the legal or practical effect of burdening political communication, the boundaries of the freedom are marked by two conditions. In Lange, the conditions were identified as being first, whether the object of the impugned 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" and second, whether the impugned law "is reasonably appropriate and adapted to achieving that legitimate object or end". It was said that the "legitimate object or end" of the impugned law must be one "the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people".
Subsequently, in Coleman v Power a majority of the Court reformulated the second question slightly to ask whether the impugned law achieves its legitimate object or end in a manner which is compatible with the maintenance of the system of representative and responsible government for which the Constitution provides. But, as the plurality in Wotton v Queensland recently observed, the terms of the Lange questions are settled. No party or intervener suggested to the contrary.
It is necessary to say something further about particular aspects of these accepted principles. That examination is organised under the following headings:
"Effectively burden"? [108]-[112]
A "slight" or "little" burden? [113]-[124]
The submissions [113]-[116]
The flaws [117]-[122]
Reasonably appropriate and adapted? [123]-[124]
Object or end [125]
"Legitimate" object or end [126]-[143]
Not every object or end within power [132]-[141]
An ordered society and the public interest? [142]-[143]
Reasonably appropriate and adapted [144]-[147]
"Effectively burden"?
In Lange, the Court said that a law will not be inconsistent with the freedom unless it is first found to "effectively burden freedom of communication about government or political matters either in its terms, operation or effect". If it does, attention must turn to the law's object or end and the manner in which it achieves that object or end. The use of the adverb "effectively" in the expression "effectively burden" invites attention to both the legal effect of the law in question and its practical effect. The expression "effectively burden" means nothing more complicated than that the effect of the law is to prohibit, or put some limitation on, the making or the content of political communications.
The decided cases demonstrate that this is how "effectively burden" is to be understood. No doubt, as has been pointed out, in many of the decided cases the parties have conceded or assumed that the law in question effectively burdens political communication. But the actual decisions in the cases can be explained only on the footing that "effectively burden" is to be understood in the way that has been described. Two examples suffice to illustrate the point.
In Lange, the common law of defamation was held to burden the freedom of political communication. The Court identified the burden as holding the maker of a communication about government or political matters liable in damages or to injunctive relief. Both the question asked and its answer were straightforward: the common law of defamation effectively burdened political communication because it had the effect of limiting the making or the content of political communications by exposing the maker to civil liability.
Likewise, the regulations considered in Levy v Victoria were found to effectively burden political communication. The regulations prevented protesters from making communications of that character. The particular regulation in issue prohibited people who did not have a valid game licence from entering permitted hunting areas between specified hours on two particular days. The burden was identified as precluding the plaintiff from making his political protest within those areas at those times. At this stage of the analysis, it was not to the point that communications of the same kind and content could be made in other ways.
Although the principles to be applied are, in this respect, simple and straightforward, their application was central to the argument of these appeals. How and why this was so requires further explanation and consideration.
A "slight" or "little" burden?
The submissions
The first respondent and four interveners (the Commonwealth, Queensland, South Australia and Victoria) submitted that there are some burdens on political communication which are not sufficient to support a conclusion that the law in question "effectively burdens" political communication. The submissions used different terms to describe such burdens: "de minimis", "insubstantial", "slight" and "unrealistic". Nothing was said to turn on the choice of adjective. Each label was intended to capture, in its own way, the conclusion that the impugned law regulated so narrow or so unimportant a category of political communication that the law could not be inconsistent with the implied freedom.
According to these submissions, a law which imposed a burden on political communication that warranted one of these descriptions would be consistent with the implied freedom solely on the basis that it did not "effectively burden" political communication. And because the impugned law was valid on this basis alone, no consideration need be given to either the object or end to which the law was directed or the means by which the law sought to achieve that object or end.
Although the submissions which the first respondent and the interveners made differed in some respects, a common thread ran through them all. That thread had three cumulative elements. First, it was recognised that the freedom of political communication exists because it is necessary for the operation of the constitutionally prescribed system of government. Second, it was submitted that the freedom extends only so far as necessary for the operation (or perhaps preservation) of that system of government. And third, a "little" burden does not impede the effective operation or imperil the continued existence of that system. Therefore, so the argument concluded, laws imposing only a "little" burden are consistent with the implied freedom. That conclusion was embellished by assertions that there would remain a free "flow of information" and opinion; that the impugned law did not pose any "realistic threat" to the constitutionally prescribed system and the implied freedom; and that the institutions of government established by the Constitution are "strong enough not to require protection" from such burdens.
These submissions must be rejected. They are fundamentally flawed.
The flaws
First, the submissions proceed from a false premise. The premise for the submissions is that the operation of the freedom is to be assessed, and its boundaries determined, by reference to whether the constitutional system of government will remain intact and still function. The submissions thus assume that the Constitution's prescription of the system of government is sufficiently detailed to allow a court to assess whether that system remains intact and functioning despite the burden on political communication. That assumption is not right. The Constitution goes no further than prescribing a system of government that has the "representative" and "responsible" characteristics fixed by its provisions, chiefly ss 7 and 24 and ss 61-67 and 69-70 respectively. The inquiry is at best unhelpful, at worst positively misleading.
The infirmity of the identified premise is further demonstrated, and the way in which its adoption may ultimately mislead is revealed, by considering the case where a burden is found not to be "little". Presumably in such a case the burden is not "little" but "significant" because it does represent a threat to the constitutional system of government. But when the bar is set so high, it is difficult to imagine, contrary to Queensland's submissions, that a burden so understood could ever be found to be reasonably appropriate and adapted to the pursuit of a legitimate object or end. Framing the first Lange question as asking whether the burden is a "little" one dictates the answer to the second Lange question and thus radically distorts the inquiry.
The relevant premise is that there is a freedom of political communication, not any more general concept of the constitutional system of government, let alone some conception of how that system could or should work, or work "effectively". It is of the very first importance to recognise that the constitutional prescription of a system of representative and responsible government entails that there must be freedom of political communication. The freedom is an indispensable incident of that system of government. Whether a law burdens that freedom is not to be determined by some attempted survey of whether there is sufficient communication on government or political matters either to make the constitutional system of government work, or to make it work satisfactorily. That is too large and diffuse an inquiry. The more confined and manageable inquiry, which the cases require, is to look to the effect of the impugned law on the freedom of political communication.
Second, and no less fundamentally, the submissions about "little" burdens are contrary to and seek to discard the established and unchallenged doctrine of the Court. They do so by seeking to reformulate the accepted boundaries of the freedom, within which the freedom is absolute. Those boundaries are passed only when the impugned law is found to be reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the constitutionally prescribed system of government and the freedom of political communication which is its indispensable incident. By these submissions the first respondent and the interveners sought to reset the boundaries to some quantitative measure. By this means the constitutional freedom would be subordinated to small and creeping legislative intrusions until some point where it could be said that there are so few avenues of communication left that the last and incremental burden is no longer to be called a "little" burden. This is not and cannot be right.
The question which lies beneath the Court's doctrine in this area can be expressed as: in what circumstances can the Parliament override the freedom which "the people" must have to communicate on government or political matters? What is a "good reason" for limiting that freedom? One answer must be: when the communication is not about a government or political matter. And that is the answer the majority of the Court gave in APLA Ltd v Legal Services Commissioner (NSW). But is another answer to be: so long as the Parliament restricts the making or the content of political communications only a little bit? Surely not. But that is the answer proffered by the first respondent and the interveners.
Third, to suggest that a law which limits political communication is valid only because there can or will be "as much" or "equivalent" political discourse (because, for example, there are other ways to make the same political point) makes one or both of two assumptions. It assumes that it is right to hold the impugned law to be within power or it consigns some restrictions on political communication to a netherworld of unimportance. Assuming the answer to the constitutional question is as wrong as it is to ignore the answer that is given to the question. The very purpose of the freedom is to permit the expression of unpopular or minority points of view. Adoption of some quantitative test inevitably leads to reference to the "mainstream" of political discourse. This in turn rapidly merges into, and becomes indistinguishable from, the identification of what is an "orthodox" view held by the "right-thinking" members of society. And if the quantity or even permitted nature of political discourse is identified by reference to what most, or most "right-thinking", members of society would consider appropriate, the voice of the minority will soon be stilled. This is not and cannot be right.
Reasonably appropriate and adapted?
Those who advanced the "little" burden submissions asserted that if, contrary to their principal submissions, it was nonetheless necessary or appropriate to consider the application of the two Lange conditions to a law imposing only a "little" burden on political communication, a law of that kind would easily meet those conditions. They submitted that s 471.12 did so.
It is trite to say that the more extensive the burden on political communication the more difficult it will be to justify the impugned law. And where a law which effectively burdens political communication is valid because it meets the two Lange conditions, it may very well be right to describe the law as imposing only a small burden on political communication. But it by no means follows that consideration of the validity of an impugned law can take a shortcut to the conclusion by use of the label "little" (or some equivalent) as a description of the burden. That sort of approach is evident in many of the submissions made in this Court. For example, South Australia submitted that the "effectiveness" of any burden "involves an evaluative exercise requiring consideration of all relevant factors". To approach the matter in this way, and to conclude that the burden is "little", may seek to replicate but serves only to mask (if not wholly ignore) all of the analytical work that is to be done in answering the second Lange question. Yet the strength of the principles established in Lange, and of proportionality reasoning more generally, is the transparency that they bring to decision‑making. That transparency must not be obscured by resort to labels.
Object or end
Whether a statutory provision which effectively burdens political communication is consistent with the implied constitutional limitation on legislative power depends upon (a) whether the object or end which the provision pursues is legitimate and (b) whether the provision is reasonably appropriate and adapted to achieving that object or end in a manner compatible with the constitutionally prescribed system of representative and responsible government and the freedom of political communication which is its indispensable incident. Whether an impugned law serves a "legitimate object or end" first requires identification of the end or ends which the law seeks to serve. That is not a search for some subjective purpose or intention of the Parliament in enacting the impugned law. As Gummow and Bell JJ observed in Rowe v Electoral Commissioner, whether a law infringes the constraints imposed by ss 7 and 24 of the Constitution "cannot depend upon the purpose attributed to the Parliament in enacting that measure. ... [It] cannot be answered simply by what may appear to have been legislative purpose." The end or ends that the impugned law seeks to achieve must be identified by the ordinary processes of statutory construction. In this respect, as in so many others concerned with the construction and application of statutes, "[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention".
"Legitimate" object or end
It is necessary, but not sufficient, to identify by the ordinary principles of statutory construction what end or ends the impugned law seeks to serve. It is not sufficient to do so because not every object or end pursued by a law will justify burdening the freedom of political communication. The object or end must be "legitimate". The word "legitimate" requires explanation.
In Lange, the Court said that the object or end to which the impugned law is directed must be "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". It follows that to be a "legitimate" object or end, that object or end must be compatible with the constitutional system of representative and responsible government. But what it means to be "legitimate" in this context can and should be identified more precisely. Because freedom of political communication is an indispensable incident of the constitutionally prescribed system of government, an object or end can be compatible with the system only if it is compatible with the freedom. And that is why, in Lange, the Court said that the purpose of the law of defamation was not "incompatible with the requirement of freedom of communication imposed by the Constitution".
The object or end pursued by the impugned law need not itself be the maintenance or enhancement of the system of representative and responsible government or of the freedom of political communication. But it must be compatible with them. The Constitution provides only limited guidance on the requirements of the system of government which it establishes. Legitimate ends are not expressly listed in the Constitution as they sometimes are in other jurisdictions. In many cases it will be profitable to examine how the general law operates and has developed over time, not because the general law in any way limits or restrains the exercise of legislative power but because the implied freedom of political communication must be understood and applied having regard to what may be learned from consideration of the general law. In most cases it will be much less useful to examine what is considered legitimate in other jurisdictions with their own constitutional contexts, especially where those legitimate ends are expressly identified.
The decided cases show that the protection of reputation, the prevention of physical injury, the prevention of violence in public places, the maintenance of a system for the continuing supervision of some sexual offenders who have served their sentences, "community safety and crime prevention through humane containment, supervision and rehabilitation of offenders", and "the imposition of conditions [a parole board] considers reasonably necessary to ensure good conduct and to stop [a] parolee committing an offence" are legitimate objects or ends compatible with the maintenance of the constitutionally prescribed system of government. These are no more than examples of legitimate objects or ends that have so far been identified in the cases. The list is not closed.
These examples must not be taken as suggesting that any end conducive to the public interest will do. For example, to observe that the protection of personal reputation was a legitimate end in Lange and to observe that personal reputation might be thought to be a general good does not adequately support a proposition, by analogical reasoning or otherwise, that the protection of any other general good is a legitimate end. That chain of reasoning, premised as it is upon the summary statement that the legitimate end in Lange was the protection of personal reputation, overlooks the need to explain how protecting personal reputation has a connection and is compatible with the constitutionally prescribed system of government and with the freedom of political communication which is its necessary incident. Dawson J explained the connection between personal reputation and the constitutionally prescribed system of government in Theophanous v Herald & Weekly Times Ltd:
"It is hardly surprising that representative government has been thought to co-exist with defamation laws for over ninety years, even though those laws curtail freedom of speech. Indeed, the protection of reputations, even the reputations of politicians or would‑be politicians, may be thought to be in the interests of representative government, because the number and quality of candidates for membership of Parliament is likely to be appreciably diminished in the absence of such protection." (footnote omitted)
It is neither appropriate nor possible to identify exhaustively what are legitimate objects or ends. But it is important to identify and consider two possible views of what might qualify as a "legitimate" legislative object or end. Both views are particular manifestations of the more general proposition that any object or end that is in the public interest is a "legitimate" object or end for the purposes of applying the Court's doctrine on the implied freedom of political communication.
Not every object or end within power
The first respondent submitted that a legislative object or end is "legitimate" if it is an end within a legislative head of power. Queensland and South Australia each made submissions to generally similar effect. Reference was made to statements said to support the proposition advanced in these submissions, but the proposition has not been endorsed by a majority of the Court. It should not be adopted.
In order to explain why it should not be adopted, it is useful to consider what would follow if it were.
If any and every object or end that falls within any of the heads of legislative power is "legitimate", the second Lange question becomes whether the law in question is reasonably appropriate and adapted to serve the identified object or end in a manner that is compatible with the maintenance of the constitutionally prescribed system of government. Presumably the law fails this test if its detrimental impact on political communication is somehow judged to be greater than the benefit following from pursuit of the end that has been held to fall within a head of legislative power. How that comparison is to be made was not explained.
On the view propounded by the first respondent, Queensland and South Australia, the only consideration that is to be given to the implied freedom is at the point of assessing the compatibility with the freedom of the legislative means that have been chosen for achieving the object or end that is within legislative power. Yet the authorities make plain that both the end and the means must be compatible with the constitutionally prescribed system and with the freedom of political communication and that compatibility means more than that the law is within a head of legislative power.
As McHugh J explained in Coleman v Power, the second Lange question involves a "compound conception". That compound conception requires consideration of both legislative means and legislative ends. It was for this reason that the majority of the Court in Coleman v Power reformulated the second Lange question. As originally framed, the second question could be read as suggesting that only the legislative end, and not the means of achieving that end, had to be compatible with the constitutionally prescribed system of government and with the freedom of political communication.
The view urged in these appeals was that an assessment of the compatibility of the legislative object or end is concluded by finding only that the object or end falls within a head of legislative power. These submissions ignore that part of the compound conception which it has never been doubted must be considered: is the object or end to which the law is directed compatible with the maintenance of the system of representative and responsible government and the freedom of political communication? This is not and cannot be right unless it be assumed that any end within power is, for that reason alone, compatible in the relevant sense. But as is explained below, that assumption is not and cannot be right.
The failure to explain how a comparison could or should be made between the implied freedom and the pursuit of a legislative end which is within power (but which otherwise bears no connection with the implied freedom) is significant. On the face of it, the comparison appears to require a court to balance incommensurables: the pursuit of some object or end that is within power and the maintenance of the constitutionally prescribed system of government and the freedom that the system requires. By contrast, if the legitimacy of an object or end is understood (as it should be) as referring to the compatibility of that object or end with that system and the freedom, the second Lange question can sensibly be applied. What is then being compared is, on the one hand, the means of pursuing a legislative object or end that has been determined to be compatible with the implied freedom and, on the other, the burden on the freedom itself. There is a common point of reference.
Another and no less fundamental point should be made about these submissions. The expression "reasonably appropriate and adapted", and proportionality reasoning more generally, direct attention to the relationship between one thing and another. On the view propounded by the first respondent, Queensland and South Australia, the only relationship under consideration is the relationship between the end within power and the legislative means chosen to effect that end. Since that end may have nothing whatever to do with political communication, the law's effect on political communication may have no relevance to the relationship at all. Instead, political communication is introduced into the inquiry by a side‑wind: is the means compatible with the maintenance of the constitutionally prescribed system of government and the implied freedom?
If the effect on political communication is to be introduced into the inquiry in this way, a significant problem that then emerges is that the "compatibility" that is sought is not further explained. But it is clear that the inquiry is not directed to whether the law is reasonably appropriate and adapted to an end which is necessarily itself compatible with the freedom. There is, therefore, no longer any direct comparison being made between the effect of the law on one interest (an interest compatible with the constitutionally prescribed system) and another (the interest in political communication). Instead, the inquiry asks whether the law imposes "too great" a burden on the freedom, which is answered by looking only to the effects the law has on the freedom. That becomes no more than a restatement of the "little" burden submissions examined and rejected earlier in these reasons.
As already noted, the submission that any end within legislative power is a "legitimate" end might be associated with an even broader proposition. The submission may proceed from the premise that any object or end within a head of power can be assumed to be in the public interest and that any end conducive to the public interest is necessarily legitimate. This second and broader proposition requires separate consideration.
An ordered society and the public interest?
It may be thought that any legislative object or end is "legitimate" if it is directed to achieving an "ordered" society and not merely the curtailment of political communication. For example, reference is to be found in some of the decisions of this Court to an end being "legitimate" if it is "for the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society". And it is common to find reference in statutory and constitutional human rights instruments to such limitations on human rights as are justifiable in a "free and democratic society".
In general terms, it may readily be accepted that preservation of an ordered society is compatible with the constitutionally prescribed system of representative and responsible government and the freedom of political communication that is its indispensable incident. But references to an "ordered" society will mislead if they are intended to suggest that any and every end conducive to the "public interest" is compatible in the relevant sense. Like the view that any and every end within power is a "legitimate" end, this view would require the courts to balance incommensurable considerations. Even more fundamentally, the determination of what ends are "legitimate" must be made recognising that a constitutional principle is at stake. To subordinate the freedom to a law which pursues an end wholly unrelated to the freedom, even one said to be in the "public interest", would fail to recognise that the freedom is an indispensable incident of the constitutionally prescribed system of government.
Reasonably appropriate and adapted
If a law which effectively burdens political communication pursues a legitimate end, the second Lange question asks whether the means chosen to achieve that end are reasonably appropriate and adapted to achieving it in a manner compatible with the system of representative and responsible government. This question requires the Court to make a judgment. The judgment may be assisted by adopting the distinctive tripartite analysis that has found favour in other legal systems. On this analysis, separate consideration is given to questions of suitability, necessity and strict proportionality.
But whatever structure is used for the analysis, it is necessary to consider the legal and practical effect of the impugned law. It is necessary to identify how the law curtails or burdens political communication on the one hand and how it relates to what has been identified as the law's legitimate end on the other. In undertaking that comparison it is essential to recognise that the legitimacy of the object or end of the impugned law is identified by considering the compatibility of that object or end with the system of representative and responsible government and the freedom of political communication which is its indispensable incident.
It bears repeating that, because "legitimate" must be understood in this way, the comparison that is to be made between the effect of the impugned law upon the freedom to communicate on government and political matters and the law's connection with an identified end proceeds from a common point of reference: the constitutionally prescribed system of government and the freedom of political communication which is its indispensable incident. The comparison to be made does not call for the balancing of incommensurables or comparing of the incomparable, as would be the case if the comparison was between the law's effect on freedom of political communication and the law's effect on some public interest or purpose wholly unconnected with the implied freedom.
Those are the principles that are to be applied in these appeals. But, as this Court has said many times, it is necessary to construe a law that is impugned before attention can turn to its validity.
Construing s 471.12
The text of s 471.12 is set out earlier in these reasons. It will be recalled that it prohibits the use of a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. The meaning of "offensive" lay at the centre of the debate about construction in this Court. It is convenient to enter that debate first by noticing the different ways in which that word is used in statute law generally and second by describing the statutory context in which s 471.12 sits. Attention will then turn directly to the text of the section itself.
"Offensive" in other statutory contexts
Many statutes which create offences have used the word "offensive" as an element of the relevant offence. So, for example, many police and summary offences Acts have made it a crime to use offensive words or to engage in offensive conduct in or near a public place. Possession of an "offensive weapon" is a common form of statutory offence and may be a circumstance relevant to the commission of aggravated forms of other offences. Some statutes have used the word "offensive" in contexts which require consideration of notions of pornography and "moral offence".
In some statutes, most notably those dealing with offensive weapons, the central idea conveyed by "offensive" is of being made or adapted for the purposes of causing injury. In others, the central idea which "offensive" conveys is of being displeasing, annoying, insulting, or causing painful or unpleasant sensations or reactions. In general use, the word can be used to describe the evoking of a form of sensory reaction (of sight, smell or touch).
The point to be made is obvious but important. No single definition of "offensive" was or is apt for every different form of crime. Much turns on the context in which the word "offensive" is used.
Context of s 471.12
Section 471.12 is one of several offences in what is now subdiv A (General postal offences) of Div 471 (Postal offences) of the Code. Other "General postal offences" include offences of theft of, or receiving stolen, mail‑receptacles, articles or postal messages (ss 471.1 and 471.2), taking or concealing those items (s 471.3) and damaging or destroying those items (s 471.6). The subdivision provides for offences of dishonesty, including dishonestly removing postage stamps or postmarks (s 471.4), and dishonestly using previously used, defaced or obliterated stamps (s 471.5). It also provides for offences which concern the transmission of dangerous things: causing a dangerous article to be carried by a postal or similar service (s 471.13) or causing an explosive, or a dangerous or harmful substance, to be carried by post (s 471.15).
Three provisions deal directly with the content of the articles that are carried by a postal or similar service. One is s 471.10, which makes it an offence to cause an article to be carried by a postal or similar service with the intention of inducing a false belief either that the article consists of, encloses or contains an explosive or a dangerous or harmful substance or thing, or that an explosive or a dangerous or harmful substance or thing has been or will be left in any place. Another is s 471.11, which makes it an offence to use a postal or similar service to make a threat to kill or to cause serious harm, where the person making the threat intends that the person threatened should fear that the threat will be carried out. The third is s 471.12.
These appeals do not directly concern the offences in s 471.12 of using a postal or similar service in a way that reasonable persons would consider either menacing or harassing. It may be assumed, however, that "menacing" connotes uttering or holding out threats and that "harassing" connotes troubling or vexing by repeated attacks.
Although the appellants are charged with offences relating to the use of the postal service provided by the Australian Postal Corporation ("Australia Post"), it is to be noted that s 471.12 is directed more broadly to a person who uses "a postal or similar service" (emphasis added). The expression "postal or similar service" is defined expansively in s 470.1 of the Code. It means not only "a postal service (within the meaning of paragraph 51(v) of the Constitution)" but also courier and packet or parcel carrying services and any other service that is a postal or other like service within the meaning of the constitutional provision. In addition, it includes courier and packet or parcel carrying services provided by a constitutional corporation, and courier and packet or parcel carrying services that are provided in the course of or in relation to trade or commerce between Australia and a place outside Australia, among the States or between a State and a Territory or between two Territories.
It follows that the reach of s 471.12 goes well beyond the use of those postal services which, for most of the 20th century, were provided by the executive government but which are now provided by a government business enterprise (Australia Post). Section 471.12 encompasses the use of postal and analogous services provided by commercial enterprises not owned by the government. And, of course, the section extends well beyond the use of a postal or similar service to send an article to a person at his or her home. It includes communications to or from businesses, arms of government and others. All of these services can generally be described as forming part of the "national infrastructure". Indeed, Div 471 (in which s 471.12 appears) is one of several divisions of Pt 10.5 of the Code, and Pt 10.5 is one of several Parts forming Ch 10, which is entitled "National infrastructure".
"Offensive" in s 471.12
Two preliminary observations should be made. First, the text of s 471.12 shows that an objective test must be applied in deciding whether the use alleged meets the description "offensive". The section requires that the accused be shown to have used a postal or similar service "in a way ... that reasonable persons would regard as being, in all the circumstances, ... offensive" (emphasis added). Second, as the first respondent and some interveners correctly pointed out, the offence created by s 471.12 consists of physical elements and fault elements. The fault element of "intention" applies to the physical element of "use" of a postal or similar service; the fault element of "recklessness" applies to the "circumstance" that the use would be regarded as "offensive". The fault element of recklessness may also be satisfied by proof of intention or knowledge. It follows that to establish commission of the offence the prosecution must prove two things. The first is that the accused intentionally used the relevant postal or similar service. The second is that, in so using that service, the accused intended or knew that the use was offensive or was aware of a substantial risk that the use was offensive and, having regard to all the circumstances known to the accused, it was unjustifiable to take that risk.
Accepting that the offence in s 471.12 depends upon an objective standard and that it has the elements identified, what content is to be given to the word "offensive"?
What is "offensive" for the purposes of s 471.12 must be identified by reference to the reaction that the conduct in question would evoke in the hypothesised reasonable person exposed to the conduct. No party or intervener submitted that what is "offensive" for the purposes of s 471.12 was to be identified in some other way and there appeared to be little if any dispute that the relevant kind of reaction could be described by any or all of the several words used by the Court of Criminal Appeal: anger, resentment, outrage, disgust or hatred. There was, however, a debate about how intense the reaction must be to constitute the offence.
At least a majority of the Court of Criminal Appeal proceeded on the basis that the preferable construction of the section required a strong reaction from the hypothetical reasonable person to the conduct in question before that conduct would merit the description "offensive". Bathurst CJ used intensifying epithets to describe the reaction that the conduct in question was calculated or likely to arouse: "significant anger, significant resentment, outrage, disgust, or hatred" (emphasis added). Presumably, then, the reaction of the hypothetical reasonable person intended by these descriptions must be a reaction that is clearly experienced and deeply felt.
Contrary to the submissions of the appellants, s 471.12 does not make it a crime to use a postal or similar service in a way that would merely "hurt or wound the feelings of the recipient" of a postal article. Understood in that way, the section would deal with forms of offensive conduct properly described as trifling. The word "offensive" must be given a narrower meaning than that. It is used in conjunction with "menacing" and "harassing" and all three forms of use are treated, without distinction between them, as meriting the same punishment of up to two years' imprisonment. The Court of Criminal Appeal was right to conclude that the provision is to be construed as requiring a strong reaction.
It is sufficient to proceed, as the parties did for much of the argument in this Court, on the footing that the section bears the meaning adopted by at least a majority of the Court of Criminal Appeal and advanced by those supporting the section's validity. Even on that assumption, the section's prohibition of offensive use of a postal or similar service is invalid, at least in its application to the use of such a service for making political communications. But before considering the constitutional question, it is important to say something about two matters considered by Allsop P.
First, Allsop P observed that in considering a charge brought under s 471.12, a jury would have to take account of the fact that reasonable persons would know of "the existence and importance of the freedom of expression". The respondents and most interveners picked up and supported this observation. The first respondent submitted that the section's reference to use in a way that "reasonable persons would regard as being, in all the circumstances, ... offensive" "leave[s] room for" the operation of the implied freedom. The first respondent further submitted that the jury at the trial of a charge brought under s 471.12 were "ideally positioned" to determine whether the impugned use was "offensive" and that they could be directed to consider the "robust" nature of political debate in Australia. The second respondent and most interveners made submissions to the same effect.
It may be accepted that the political subject or context of a communication is a circumstance to be taken into account in determining whether a communication is "offensive". But what follows from that trite observation?
It was not said by any party or intervener that the section's reference to "reasonable persons" and "in all the circumstances" would have the result that the maker of a political communication could never be found guilty of an offence against s 471.12. Had that submission been made, it would have assumed critical importance to the disposition of these appeals because there would be no restriction on political communication at all. Instead, the assumption which underpinned all of these submissions was that the political subject or context of a communication would reduce (but not eliminate) the uses of a postal or similar service to communicate a political message which would be found to be "offensive". That assumption would lead to the conclusion that the section restricts a narrow class of political communication. And that conclusion would properly be taken into account in determining whether s 471.12 is reasonably appropriate and adapted to achieving a legitimate object or end in a manner compatible with the constitutionally prescribed system of government and the freedom of political communication. But is the assumption correct?
In many if not most cases, neither words nor conduct become any less "offensive" because they are uttered or occur in a particular political context or in connection with a political subject. Some contributions to political debate are deliberately designed to be insulting and belittling. They are intended to sting as much as possible and, in doing so, to be such as would inevitably evoke in the reasonable person significant anger, significant resentment, outrage, disgust or hatred.
The gist of the offence is to be found in the reaction that reasonable persons would have to the communication. The political nature of a communication or occasion will rarely lessen the offence and it is artificial to expect that a jury direction in terms that political debate is typically "robust" in Australia would lead a jury to find a use not to be offensive when otherwise they would have found it to be offensive. If anything, the outrage caused by a communication will be worse when it arises out of, or relates to, matters of wider importance than relations between two individuals.
To the extent to which the submission, as it was developed in oral argument by the first respondent, appeared to be one which would seek to leave to the decision of the tribunal of fact at trial whether and to what extent the freedom is affected by the section, it is a submission without foundation. Questions of constitutional validity are not questions of fact to be decided by a jury.
Secondly, Allsop P considered, but did not adopt, a construction of s 471.12 which would make it necessary to demonstrate that the relevant use of the postal or similar service was "objectively calculated or likely ... to cause real emotional or mental harm, distress or anguish". The words of the provision give no foundation for such a reading. In its operation with respect to the use of a postal or similar service in a way that reasonable persons would regard as offensive, the section makes no reference at all to any harm to any person.
Given this construction of the offensive aspect of s 471.12, is that aspect of the section valid in its application to political communications? As has been explained, that depends upon the answers given to the two Lange questions (as modified by the majority in Coleman v Power).
Section 471.12 effectively burdens political communication
Section 471.12 prohibits using a postal or similar service to make communications that are "offensive" in the sense that has been described. The section applies generally. It therefore prohibits some political communications (those where the communications are made through the use of a postal or similar service and are objectively offensive in the sense described). No party or intervener contended to the contrary. It follows that the section effectively burdens the freedom of political communication.
It will be recalled that, notwithstanding their concession, rightly made, that s 471.12 can operate to prohibit some political communications, the first respondent, and most of the interveners, sought to resist the conclusion that the first Lange question must be answered "Yes" by resort to the assertion that the section does not "effectively burden" political communication because it is only a "little" burden.
It may be accepted that s 471.12 has a narrow operation. It deals only with use of a postal or similar service, the use must be objectively offensive in the sense described, and the mental elements of the offence must be proved. But to observe that the section has this "narrow" operation is to state the minor premise of the argument. And that statement of the minor premise does no more than describe how the section operates. It may be that this operation of s 471.12 can be described as a "little" burden on political communication. But assuming that this is right, the assumption reveals why the major premise of the argument - that a "little" burden does not "effectively burden" political communication - cannot be right. These reasons have already explained why that is so. It is sufficient to repeat that to move from some quantitative assessment of the effect of s 471.12 on political communication to the qualitative assessment that it is only a "little" burden is to assume that the form of communication eradicated from political debate is unimportant. On this view, it does not merit constitutional protection.
The argument has the same functional effect as an argument that says that the form of communication in issue is not political communication. But only the first respondent was bold enough to submit that the communications in issue in these appeals were not communications about a matter of federal political controversy. (The correctness of that submission is examined below.) If that argument is to be made, it should be put squarely, as the first respondent did. The result is not to be achieved by applying the label "little" to the burden that is identified.
The object or end pursued by s 471.12
Because s 471.12 effectively burdens political communication, it is necessary to consider whether it is reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of government and the freedom of political communication which is its indispensable incident. As has been explained, this requires identification of the object or end which the section pursues. And, as has also been explained, that task is to be carried out by applying the ordinary processes of statutory construction. Before doing that, it is useful to describe the arguments of the parties and interveners on this issue.
In this Court, the parties and interveners made extensive submissions about the possible object or end (or the possible objects or ends) pursued by s 471.12. The submissions did not always clearly separate the objects or ends and the submissions sometimes slid between one or more of the objects or ends that were identified. One way or another, four candidates emerged. They can be described as "civility of discourse", "integrity of the post", "prevention of violence" and "welfare of the recipients of postal articles".
The second appellant submitted that s 471.12 seeks only to regulate the civility of discourse and that this end is not legitimate. The respondents and interveners referred to the three other candidates in support of their arguments for validity. These three candidates were deployed in argument in two different ways. Sometimes it was said that the object or end to which s 471.12 is directed is one or other of them (integrity of the post, prevention of violence or welfare of recipients). Sometimes it was said that the object or end of s 471.12 is limited to preventing the sending of offensive materials by a postal or similar service and that this object or end is legitimate because it is conducive to one or more of the three candidates that have been identified. In practical terms there may be little separating the two forms of argument in these appeals. Each form of argument depends upon the content that is given to each of the candidate ideas. But the distinction between the two forms of argument is not unimportant.
In these appeals, it is the second form of argument that provides the appropriate frame of reference. The object or end of s 471.12 must be framed in limited terms. Both legally and practically, the offensive limb of s 471.12 has only one object or end: to penalise, and thereby prevent, giving offence to recipients of, and those handling, articles put into a postal or similar service. Apart from the (perhaps rare) case where offensive images or words appear on the envelope or packet, the chief practical operation of the section is to prevent offence (in the sense described) to recipients of articles delivered by a postal or similar service.
That is not to say, however, that the submissions that were made about such matters as "integrity of the post" are irrelevant. Those submissions are to be understood as directed to whether the object or end of preventing offensive uses of a postal or similar service is an object or end that is compatible with the maintenance of the constitutionally prescribed system of government and the freedom of political communication which is its indispensable incident. But it is as well to explain why, contrary to the submissions of the respondents and interveners, the object or end to which s 471.12 is directed cannot be identified as any of the three candidates they urged: "integrity of the post", "prevention of violence" and "welfare of the recipients of postal articles". Attention can then turn to whether the narrow object or end of preventing offence to mail recipients and handlers is conducive to any or all of those candidates and whether, for that reason, s 471.12 serves a "legitimate" end.
First, the object or end to which the section is directed cannot be identified as protecting from harm the recipients of, or those who handle, postal articles. Because the section applies an objective test of what is "offensive", the section does not require proof that any person has actually suffered the reactions of significant anger or the like that have been described. And as earlier explained, a person accused of contravention of s 471.12 need not be shown to have intended to cause offence. It is enough to show that the accused was reckless to the possibility that such a reaction would be evoked.
Nor can the object or end of the section be identified as protecting recipients of, or those who handle, postal articles from legally cognisable harm. None of the reactions described - significant anger, significant resentment, outrage, disgust or hatred - constitutes a form of legally cognisable harm. Anger, resentment, outrage, disgust and hatred, however intense, are transient emotional responses which may, and more often than not will, leave no mark upon the individual who experiences them. More than that, the emotional responses described are universal human responses which are among the "ordinary and inevitable incidents of life". They can be provoked for any of a myriad of reasons, in well-nigh any circumstances. Experiencing responses of these kinds does not set the person concerned apart from any save the most sheltered or placid of human beings.
Second, it is not possible to say that the object or end of the section is the prevention of violent retaliation. The section says nothing of the sort and the likelihood of violence is neither a necessary nor a sufficient element of the offence.
Third, the object or end of s 471.12 cannot be identified more broadly as maintaining the "integrity of the post". In this regard, the Commonwealth pointed to the second reading speech made in support of the Bill for the insertion of s 471.12 and related sections into the Code. It was there said that:
"Protecting the safety, security and integrity of Australia's information infrastructure, including postal and courier services, is a priority for this Government.
The measures contained in this bill will ensure that these important communication services are not compromised by irresponsible, malicious or destructive behaviour."
In the light of these statements, it may readily be accepted that the political motives for inserting s 471.12 and other provisions into the Code included protecting the "integrity of the post". But it does not follow that the expression is an apt description of the object or end to which s 471.12 is directed. Nothing in the statutory text supports such a broad view. In its operation with respect to offensive use of a postal or similar service, s 471.12 regulates the content of what may be communicated by post. It thus limits the kinds of communication that can be committed to a postal or similar service. It does not deal at all with, and is not directed to, the safety, efficiency or reliability of those services or any of them. To adopt and adapt what Dixon J said in a different context, what was said in the second reading speech may reveal the "external motive or purpose" for the amendments that were then made to the Code, but the "only ostensible purpose" evident from the statutory text is the prevention of offence to recipients of, and others handling, articles committed to a postal or similar service.
Is that object or end "legitimate"?
To penalise, and thereby seek to prevent, the giving of offence to recipients of, and those handling, articles put into a postal or similar service regulates the civility of discourse, including political discourse, conducted by the use of those services. Unless some reason can be shown why that object or end is legitimate, this Court's decision in Coleman v Power dictates the conclusion that the object or end of s 471.12 is not compatible with the constitutionally prescribed system of government and the freedom of political communication which is its indispensable incident. Queensland's submissions that Coleman v Power does not require this conclusion must be rejected. The submissions made about "integrity of the post", "prevention of violence" and "welfare of the recipients of postal articles" were all directed to explaining why regulating the civility of this form of discourse by penalising offensive uses of a postal or similar service is a legitimate object or end. Each is considered in turn.
Integrity of the post?
The expression "integrity of the post" has a large and satisfying ring to it. It sounds important and valuable. It is convenient to accept that, despite the very large changes that have occurred in the last years of the 20th century and the first 12 years of this, the existence of an efficient postal service remains important and valuable. But it by no means follows that preventing users sending material that will cause others offence, even really serious offence, bears upon whether the postal service continues to exist or continues to operate efficiently.
The point which these submissions made may have been expressed more accurately by Lord Bingham of Cornhill when he described legislation which made it an offence to send "grossly offensive" material by means of a "public electronic communications network" as prohibiting "the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society". Two separate elements of this proposition must be noticed. The first, expressed crudely, is that society can regulate what society provides. The second is wrapped up in the reference to "the basic standards of our society". Unpacking the proposition to identify both of these elements shows that despite its rhetorical power, the proposition does no more than restate the question for determination.
The question for decision in these appeals is whether there is legislative power to prohibit offensive political communications which are conveyed by a postal or similar service. Observing that the form of service that was used was provided by a government business enterprise (and in that sense provided by society) does not advance the analysis. And likewise, approving gestures to the importance or unique quality of the postal service do not advance the debate. What remains to be considered, and what these approving statements ignore, is how offensive communications detrimentally affect a postal (or similar) service at all. If it is said that s 471.12 maintains (or tends to maintain) the "integrity of the post", content must be given to that expression. But despite the pressure of argument, no party or intervener gave the expression a meaning that could support the validity of the section.
When it is said to be important to maintain the "integrity of the post", the central idea that is conveyed is that it is important to ensure that postal articles are carried safely (perhaps safely and efficiently) to their intended recipients. That this is what the expression should be understood to mean is revealed by consideration of those statutory provisions which provide for the postal service which the appellants are alleged to have used. The Australian Postal Corporation Act 1989 (Cth) continued in existence Australia Post as a body corporate the principal function of which is to supply postal services within Australia and between Australia and places outside Australia. The Act obliges Australia Post to supply a letter service, to ensure that the service is reasonably accessible to all people in Australia and to ensure that the performance standards for the letter service "reasonably meet the social, industrial and commercial needs of the Australian community".
Against this background, it is perfectly apposite to say that measures taken to ensure that letters and other postal articles committed to Australia Post are not stolen or diverted, or destroyed or damaged in transit, are directed to the maintenance or preservation of the "integrity of the post". Such measures are directed to that end because they ensure that whatever is committed to the postal system arrives, and arrives undamaged by other articles that are being carried.
It may be harder to describe in the same way a measure that deals not only with postal services but "similar services" supplied by commercial courier and packet or parcel carrying services. At the least, there would have to be some expansion of the notion of "the post", and perhaps some account taken of the fact that the services the "integrity" of which is to be protected are provided not by the executive government or any government business enterprise, but by a diverse group of commercial enterprises whose terms and conditions of carriage are not directly regulated. It is, however, not necessary to consider whether this second set of steps could be taken.
Concern for the "integrity of the post" must focus upon its safety and reliability as a means of carriage for postal articles. The nature or content of the articles a postal service carries has a connection with that concern only if a postal article (or its contents) might damage or destroy another article or delay its delivery. But apart from the case where something written on the outside of a postal article might cause a delay in delivery of that or other articles - as might be the case if a package was said to contain a dangerous substance - what is written in or on any postal article can have no effect on the reliability or safety of the postal system.
If some extended meaning were to be given to the "integrity of the post" which would direct attention to the content of the articles carried, the use of the expression "integrity of the post" would depend upon a premise that the post should be used for only some kinds of messages or communications. That is, the "integrity of the post" would be defined in a way that directs attention to the nature or content of what is communicated by post and requires that those communications meet some standard (whether described as a standard of decency, politeness, integrity or otherwise). If the "integrity of the post" is defined in this way, circular reasoning beckons. The end to which the legislation under consideration is directed is defined in a way which assumes without examination that the fixing of standards which the content of communications carried by post must meet is important to the effective operation of the postal service. There is no foundation for that proposition. It is bare assertion.
The first respondent and several interveners sought to link "integrity of the post" with regulation of the content of what is carried by reference to a notion of "confidence" in the post. It was said that the integrity of the post would be affected adversely if both the senders and the recipients of postal articles did not have "confidence" in the post. On the face of it, the argument appears to be no more than a restatement of the proposition that those who use the postal service should be able to be sure that articles committed to the service will be delivered safely to their intended recipients. But as developed in oral argument it became apparent that "confidence" was being used in a sense which again depended upon bare assertion and again invited circular reasoning by defining the object or end to which the law is directed in a question-begging manner.
The assertion was that, if really offensive communications can be made by post, recipients would be "fearful" (presumably fearful of receiving a communication that would offend them). Some submissions went no further than that. If the assertion is right (and there is no basis for deciding that it is) it is an observation that leads to no relevant legal conclusion. Perhaps it is for that reason that the Commonwealth took a further step in its argument and asserted that there could and would be consequences for the postal service flowing from this postulated fear. The Commonwealth identified these consequences as persons being "discouraged from willing receipt of mail" with a consequent "adverse effect upon the willingness of senders ... to use postal services as a means of communication". No basis for this assertion was provided. It is not an assertion that is self‑evidently likely to be true. On the contrary, the notion that a person who has received an offensive communication in the mail (even one that is really offensive) will thereafter not take any mail at all is inherently improbable. If that were ever to happen its occurrence would be very rare indeed and it would have not the slightest effect on the general operation of the postal service. The fears expressed by the Commonwealth should be dismissed as spectral.
Prevention of violence?
The first respondent submitted that penalising, and so preventing, offensive uses of a postal or similar service was legitimate because doing so prevented violent responses and thus prevented breaches of the peace. The proposition appeared to be founded on some extrapolation from what was decided in Coleman v Power and was endorsed by Bathurst CJ in the Court of Criminal Appeal.
The proposition should be rejected. It can be answered shortly. Section 471.12 is in no way directed to or concerned with preventing violence or keeping the peace. The prospects that were conjured up in argument of retaliation for offence done by use of a postal or similar service were no more than speculative imaginings of premeditated and vengeful lawlessness which should be dismissed from consideration. They have no foundation and no attempt was made to provide any, whether by evidence or argument. Having regard, however, to the emphasis given in argument to notions of violent reprisal, and to the significance it was given in the Court of Criminal Appeal, something more should be said about Coleman v Power. It will be seen that the decision in that case provides no support for, indeed runs directly contrary to, the submission made by the first respondent.
It will be recalled that the legislation in issue in Coleman v Power made it a crime for a person "in any public place or so near to any public place that any person who might be therein ... could ... hear" to use "any threatening, abusive, or insulting words to any person". It was said that the provision did not infringe the implied freedom of political communication, and was valid, if the references to "abusive" and "insulting" words were "understood as those words which, in the circumstances in which they are used, are so hurtful as either they are intended to, or they are reasonably likely to provoke unlawful physical retaliation". That construction of the provision was available because the offence in question was one that could not be committed unless the words were uttered in or within the hearing of a public place.
It is of the first importance to recognise that this construction of the legislation was a step that was both necessary and sufficient to support the conclusion of validity. Confining the reach of the provision to cases in which the words used are so hurtful as to be either intended, or reasonably likely, to provoke unlawful physical retaliation was sufficient for validity because, so understood, the law was reasonably appropriate and adapted to keeping public places free from violence. But confining the reach of the provision in this way was also necessary to validity. If read as making it a crime to utter any words to a person in, or within the hearing of, a public place that are calculated to hurt the personal feelings of that person, the end served by the law would "necessarily be described in terms of ensuring the civility of discourse. ... [A]n end identified in that way could not satisfy the second of the tests articulated in Lange." (emphasis added) Reading the provision as confined to words connected by intention or effect with violent retaliation both permitted and required identifying the end to which the impugned law was directed as "keeping public places free from violence". That end is compatible with the constitutionally prescribed system of government and with that freedom of communication which is its indispensable incident. Ensuring civility of discourse in public is not. And ensuring civility of private discourse is even further removed from a legitimate object or end.
There are important, if obvious, distinctions between the legislation at issue in Coleman v Power and s 471.12. First, s 471.12 has no connection with any conduct in a public place, no matter whose conduct is considered: the sender of the communication, the carrier of the relevant postal article, or the recipient of what is communicated. All of the facts and circumstances surrounding a contravention of s 471.12 can, and commonly will, occur in private. The user of the service frames his or her offensive communication in private, the user typically encloses it in an envelope in private, and the recipient opens the communication in private and experiences offence. Second, the meaning of the word "offensive" in s 471.12 focuses upon the reaction that the use of the postal or similar service would evoke in reasonable persons. As already explained, that reaction can be identified as "significant anger, significant resentment, outrage, disgust, or hatred". The recipient may have no such reaction. There may be circumstances in which a recipient who experiences reactions described in those terms might contemplate resorting to violence. But they are surely the exception rather than the rule.
Even if it is right to take account of the exceptional case in which a person who experiences significant anger, significant resentment, outrage, disgust or hatred may be provoked to contemplation of violence, how would that surge of anger be translated into action? As Coleman v Power shows, questions about maintaining the peace require consideration of the circumstances in which the relevant conduct is experienced by the person to whom it is directed or who observes its occurrence. In particular, the critical point in Coleman v Power was that the conduct in question (the use of abusive or insulting words to a person) had three relevant characteristics: it took place in, or within the hearing of, a public place; it had to be intended or reasonably likely to provoke physical retaliation; and of necessity it occurred in circumstances where the exaction of revenge or retaliation for the insult could occur at once.
By contrast, neither an intention to provoke violence nor a likelihood of violent response forms any part of the offence created by s 471.12. Typically, if offence is felt, it will be experienced in private. And seldom if ever will the user of the postal or similar service whose conduct is offensive be close at hand when a person who is offended experiences the feelings described. Indeed, it may well be that the person who experiences those feelings does not know and cannot readily find the person who used the postal or similar service.
Protecting mail recipients?
As has already been explained, "offensive" in s 471.12 cannot be read as limited to uses of a postal or similar service that are "objectively calculated or likely ... to cause real emotional or mental harm, distress or anguish". Yet it was said that penalising, and so preventing, offensive uses of a postal or similar service was legitimate because it protected mail recipients from harm. That harm was described in several different ways. Victoria described offensive uses of a postal or similar service as "offensive intrusions" into the lives of the recipients. Queensland referred to "a person's security of domain". The Commonwealth also referred to "security of domain" but it further referred to the threat to a person's "legitimate sense of safety". These harms were said to be caused, or made worse, by the fact that mail is commonly addressed to a named recipient and that, adopting an expression drawn from a decision of the Supreme Court of the United States, mail recipients are a "captive" audience for whatever is sent to them by post.
Each of these descriptions, shorn of their rhetorical flourishes, sought to combine the intensity of reaction required for conduct to be classed as "really" or "seriously" offensive with an appeal to notions of integrity of the person or private property. Notions of integrity of the person or of property accord with the ordinary legal usage of the word "protection". It connotes protection from legally cognisable harm in the form of damage to person, pocket, property or reputation. And cases like Levy and Lange show that protection of bodily integrity and protection of reputation are objects or ends which are compatible with the constitutional system of government and the freedom of political communication. Each concerns a form of legally cognisable harm: injury to the person in one case and injury to reputation in the other.
Each of the forms of "harm" identified in the submissions falls short of any form of legally cognisable harm and the second respondent correctly conceded this to be so. No less importantly, s 471.12 directs no attention to any such form of harm. The allusions made in the submissions to notions of intrusion upon, or injury to, the integrity of a person or a person's property find no foundation in the text of the section. Intrusion or injury of that kind, whether legally cognisable or not, is neither an element of the offence nor a necessary consequence of its commission. Rather, the section's sole concern is the prevention of "serious" offence. It pursues no wider object or end.
It may be that the references to "security of domain" and "intrusions" were intended to appeal, inferentially, to notions of privacy. But if that was their intention, the appeal is misplaced. Delivery of mail, whether at home or at work, or by leaving an article in a post office box, is no intrusion upon the privacy of the recipient. It is an unremarkable feature of everyday life tolerated, if not always welcomed, by all. What was described as an "offensive" intrusion was the disturbance to the equanimity of the recipient that might be caused by the offensive character of what was received. But that disturbance (which might occur anywhere) is in no sense any intrusion upon the recipient's privacy. Section 471.12 is not directed to an object or end of preserving privacy.
Lying behind many of the submissions advanced in these appeals was a proposition that should be brought to the foreground. It was that s 471.12 carves out an area for its operation that lies between "mere" civility of discourse and the infliction of physical or psychiatric injury. The area in question was said to be occupied by the "really" or "seriously" offensive. Prevention of that kind of conduct was said to be compatible with the constitutionally prescribed system of representative and responsible government and with the implied freedom of political communication.
Consideration of this proposition must begin with the observation made by McHugh J in Coleman v Power that "[i]nsults are as much a part of communications concerning political and government matters as is irony, humour or acerbic criticism". Insult, irony and criticism may all give offence. Sometimes, insult, irony or criticism may give such serious offence that a reasonable person would be moved to "significant anger, significant resentment, outrage", even "disgust, or hatred".
Some forms of political communication are deliberately designed to offend. They may be designed and intended to offend because their content is shocking and the maker, having made reasonable inquiries to verify their content, wishes to disseminate the information widely. Yet if the statement communicated is such as reasonable persons, in all the circumstances, would regard as evoking the reaction described, s 471.12 would forbid its communication by post, on pain of up to two years' imprisonment, regardless of whether it is true or false and regardless of whether its maker took all reasonable steps to verify the truth of what is communicated.
If a statement is defamatory it may very well move reasonable persons to significant anger, significant resentment, outrage, disgust or hatred. Indeed that may be the strength of reaction which the person making such a communication in relation to government or political matters wants and intends to cause. And if the sender of the communication acted reasonably, Lange may provide the sender with a defence to an action for defamation. But s 471.12 would make the sender's conduct a crime.
This point about defamatory statements requires further elaboration. What comparison can or should be made between s 471.12 and the law of defamation was much debated in this Court. The Commonwealth rightly pointed out that the legislation considered in Coleman v Power provided none of the defences available to a claim for defamation, yet the law was held valid. This being so, why does it matter, so the argument continued, if an offence against s 471.12 can be committed by using a postal or similar service to publish defamatory material even though the publisher would have a defence to a civil action for defamation?
The answer to this question is found by recognising that, absent physical or psychiatric injury, the extent of the individual's interest in preventing or recovering for the consequences of a communication of this kind is measured and can only be vindicated by action for defamation. If s 471.12 were to be understood as directed to an object or end of preventing harm to or intrusion upon the individual, it does so in a way that is not coherent with the rights of the individual whose interest it is said that the section protects. And if the section is directed to vindicating some wider or societal interest, as the applicable legislation was in Coleman v Power, the object or end to which s 471.12 is directed cannot then be identified as preventing intrusion upon the safety or security of the individual's domain.
To hold that a person publishing defamatory matter could be guilty of an offence under s 471.12 but have a defence to an action for defamation is not and cannot be right. The resulting incoherence in the law demonstrates either that the object or end pursued by s 471.12 is not legitimate, or that the section is not reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government and the freedom of communication that is its indispensable incident. The incoherence is not removed, and its consequences cannot be avoided, by leaving a jury to decide whether reasonable persons would regard the use, in all the circumstances, as offensive. In the case postulated, the user of the service both knows that the communication is, and intends that the communication be, offensive. And there is no basis for the proposition (advanced by the second respondent and Queensland) that a jury would not find an accused guilty of an offence against s 471.12 in circumstances of the kind now under consideration because of the section's reference to "reasonable persons ... in all the circumstances". Statements that are political in nature and reasonable for a defendant to make can and often will still bite in the sense relevant to s 471.12. A statement can still be offensive even if it is true.
The better view is that the object or end pursued by s 471.12 is not a legitimate object or end. Preventing use of a postal or similar service in a way that is offensive does no more than regulate the civility of discourse carried on by using such a service. Coleman v Power established that promoting civility of discourse is not a legitimate object or end.
If, contrary to the view that has just been expressed, it were to be decided that the object or end to which s 471.12 is directed is legitimate, the observation that has been made about the lack of intersection between the Lange defence to a claim for defamation and the operation of s 471.12 would demonstrate that the section is not reasonably appropriate and adapted to serve that object or end in a manner that is compatible with the constitutionally prescribed system of government and with the freedom of political communication which is its indispensable incident. The resulting incoherence in the law requires that conclusion. In Lange, this Court held that it was necessary to develop the common law of defamation in order to preserve the compatibility of that law with the implied freedom, and so the Constitution. To uphold the validity of the offensive aspect of s 471.12 would cut across the development made in Lange by subjecting to criminal liability conduct that could not, for constitutional reasons, be subject to civil liability. If the object or end of the "offensive" limb of s 471.12 is legitimate, the answer to the second Lange question must be "No".
It is necessary to say something more about the legitimacy of the object or end to which s 471.12 is directed.
The ground marked out as "really" or "seriously" offensive conduct is identified by the strength of reaction that, judged objectively, would be evoked by the conduct. But all forms of giving "offence" are identified by reference to the expected or actual reaction evoked by particular conduct. The only distinction between the "really" or "seriously" offensive and any other form of offensive conduct is the intensity of the reaction that is or would be evoked. Thus, the prohibition or regulation of the "really" or "seriously" offensive is the prohibition or regulation of some instances of a larger class.
Applying this observation to s 471.12, the section relevantly prohibits some, but not all, instances of a particular kind of interaction (or discourse) between people (communication by use of a postal or similar service) where the class of instances prohibited is fixed by the intensity of the reaction evoked and not by notions of harm to a person or intended or likely violent reaction. The form of regulation adopted in s 471.12 does not seek to preclude all offensive conduct. It prohibits only a smaller class of that conduct. But it remains a form of regulation which seeks to exclude from one form of discourse between people (communication by use of a postal or similar service) a specified class of communications.
What is the significance of seeking to mark out this middle ground for the question whether s 471.12 serves a legitimate object or end? For the purposes of that inquiry, the prohibition or regulation of "really" or "seriously" offensive conduct is no more than the regulation of some but not all aspects of conduct the regulation of which would serve to promote the civility of discourse. That is, the form of regulation does not sit in any middle ground that can be seen as lying between the "mere" civility of discourse and infliction of injury. The supposed middle ground is no more than one part of a wider field.
It follows from Lange and Coleman v Power that s 471.12 is not directed to a legitimate object or end. The elimination of communications giving offence, even serious offence, without more is not a legitimate object or end. Political debate and discourse is not, and cannot be, free from passion. It is not, and cannot be, free from appeals to the emotions as well as to reason. It is not, and cannot be, free from insult and invective. Giving and taking offence are inevitable consequences of political debate and discourse. Neither the giving nor the consequent taking of offence can be eliminated without radically altering the way in which political debate and discourse is and must be continued if "the people" referred to in ss 7 and 24 of the Constitution are to play their proper part in the constitutionally prescribed system of government.
On its own, regulating the giving of offence is not a legitimate object or end. And for the reasons that have been given, s 471.12 pursues no other object or end. Beyond the matters already mentioned ("integrity of the post", "prevention of violence" and "protection of mail recipients") no party or intervener sought to demonstrate that there was any other advantage gained or sought to be gained by marking out this supposed middle ground of "really" or "seriously" offensive conduct and making it an offence to use a postal or similar service in that way. All that was said was that s 471.12 prevents conduct of this kind and that mail recipients were, therefore, less likely to be exposed to communications that are "really" or "seriously" offensive. But, as has already been explained, identifying the section's legal and practical operation does not identify any legitimate object or end.
The conclusion that eliminating the giving of offence, even serious offence, is not a legitimate object or end is supported by reference to the way in which the general law operates and has developed over time. The general law both operates and has developed recognising that human behaviour does not accommodate the regulation, let alone the prohibition, of conduct giving offence. Almost any human interaction carries with it the opportunity for and the risk of giving offence, sometimes serious offence, to another. Sometimes giving offence is deliberate. Often it is thoughtless. Sometimes it is wholly unintended. Any general attempt to preclude one person giving any offence to another would be doomed to fail and, by failing, bring the law into disrepute. Because giving and taking offence can happen in so many different ways and in so many different circumstances, it is not evident that any social advantage is gained by attempting to prevent the giving of offence by one person to another unless some other societal value, such as prevention of violence, is implicated.
The common law has never recognised any general right or interest not to be offended. The common law developed a much more refined web of doctrines and remedies to control the interactions between members of society than one based on any general proposition that one member of society should not give offence to another. Apart from, and in addition to, the development of the criminal law concerning offences against the person, the common law developed civil actions and remedies available when one member of society injured another's person or property, including what was long regarded as the separate tort in Wilkinson v Downton for deliberate infliction of "nervous shock". (Whether or to what extent such a separate tort is still to be recognised need not be examined.) And the common law developed the law of defamation to compensate for injury to reputation worked by the publication of oral or written words. But the common law did not provide a cause of action for the person who was offended by the words or conduct of another that did not cause injury to person, property or reputation.
From time to time, and in various ways, legislatures in common law jurisdictions, including Australia, have created crimes which hinge on words or conduct being "offensive". Most notably, legislatures have sought to regulate the possession, sale or distribution of written or other articles offensive to some generalised standard of moral sensibility. One method of regulation commonly employed has been to regulate what can be sent by post and, in particular, to make it an offence to send indecent or obscene material by post.
The earliest form of federal legislative regulation of the sending of certain kinds of offensive matter by post went beyond prohibiting the sending of indecent or obscene material. Section 107(c) of the Post and Telegraph Act 1901 (Cth), which commenced operation on 1 December 1901, made it an offence to knowingly send, or attempt to send, by post any postal article which "has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character" (emphasis added). The reference to "grossly offensive character" in s 107(c) was not confined to the indecent or the obscene. That follows from first, the collocation of words used in s 107(c) and second, from a comparison with s 107(b), which made it an offence to knowingly send, or attempt to send, by post any postal article which "encloses an indecent or obscene print painting photograph lithograph engraving book card or article".
It is evident, then, that the prohibition in s 107(c) would have encompassed some, perhaps much, of the conduct with which s 471.12 of the Code deals. In doing this, s 107(c) departed sharply from the colonial Act on which the legislative sidenote indicates the section was based: s 98 of The Post and Telegraph Act 1891 (Q). Section 98(3) of the Queensland Act (like a then current equivalent English provision) was directed only to the transmission of materials of "an indecent, obscene, or grossly offensive, character". Although the Queensland Act (unlike the English Act) dealt with both the envelope or cover of the postal article and what was "therein", both the Queensland Act and the English Act used the word "offensive" in a manner that directed attention only to an offence to moral sensibilities worked by indecent material. Unlike the later federal provision, neither the Queensland Act nor its English equivalent dealt with libellous matter or with matter that was offensive in some sense wider than "morally" offensive.
Observing that s 107(c) of the Post and Telegraph Act 1901 had this broad reach does not dictate the outcome of the present debate about the validity of s 471.12 of the Code. In particular, the observation does no more than provoke the same questions about s 107(c) of the 1901 Act as are presented about the prohibition in s 471.12 of offensive uses of a postal or similar service.
Political communication
The first respondent contended that the Court of Criminal Appeal should have held that the communications in issue in this matter were not communications concerning a government or political matter. The submission was not developed at any length. The central point made in the first respondent's written submissions was that:
"These prosecutions concern communications which are offensive, not in respect of any political or government content properly the subject of the implied freedom, but offensive because of other content such as the personal attacks that are made upon the deceased in the circumstances of having been sent to the homes of the wives and families." (emphasis in original)
The point was embellished by the proposition that a "communication must be directed at promoting political discussion" to come within the scope of the implied freedom.
The distinction upon which these submissions depended - between communications "in respect of any political or government content properly the subject of the implied freedom" (emphasis added) and other aspects of the communication described as "the personal attacks that are made upon the deceased", which were said not to be in respect of any political or government content - is not validly drawn. The whole of each of the communications, including the attacks made on the deceased, was, both in form and in substance, a single communication about whether Australian forces should be engaged in Afghanistan. That subject was and is a matter of political controversy. The insults directed to the deceased were as much a part of the political nature of the communications as anything else that was said in them.
The first respondent's contention should be rejected.
Relief
The first respondent submitted that if the appeals to this Court were to be allowed, this Court should not itself make such order as the Court of Criminal Appeal should have made but instead remit the matter to the District Court for further argument about whether "any statements in the [communications] are not protected by the implied freedom and available to support a charge". There is no sound reason shown for this Court not to dispose of the matter finally.
It is neither necessary nor appropriate, however, to decide whether s 471.12, in its operation to an "offensive" use of a postal or similar service, can or should be read down or any parts of that section severed. The parties and many of the interveners referred to the possibility of reading down s 471.12 by reference to s 15A of the Acts Interpretation Act 1901 (Cth) and the approach of some of the members of the Court in Coleman v Power. But the substance of the orders which each appellant sought in this Court was only to quash the indictment in so much as it charged them regarding "offensive" uses of a postal service. And, although the first appellant sought a declaration of invalidity in his notice of appeal to the Court of Criminal Appeal, it is important to recall that these appeals arise out of motions to quash an indictment. In these circumstances, it is sufficient and appropriate only to quash the relevant parts of the indictment.
Accordingly there should be orders that each appeal to this Court is allowed. The orders of the Court of Criminal Appeal should be set aside and in their place there should be orders that (a) each appeal to that Court is allowed and (b) the orders of the District Court of New South Wales are set aside and in their place there is an order that the whole of the indictment preferred against Man Haron Monis and Amirah Droudis, except for the charge numbered 3 charging Man Haron Monis with using a postal service in a way that reasonable persons would regard as being, in all the circumstances, harassing, is quashed.