Rabb & Fiddes v Tayeh [2025] VMC 17

"Any person who in or near a public place or within the view or hearing of any person being or passing therein or thereon-

(c) uses profane indecent or obscene language or threatening abusive or insulting words

3 A number of issues have arisen between the parties which require preliminary determination. These may be summarised as follows:

(b) is the definition of insulting words context dependent, namely is there a higher threshold as to what constitutes insulting words when those words are a form of what might be loosely characterised as "political communication";

(c) what is the fault element required to be guilty of the offence of using insulting words;

(d) the role of the Charter of Human Rights and Responsibilities Act 2006, and specifically section 32 of that Act in combination with section 15(2) (freedom of expression);

(e) whether the provision can and should be "read down" so as to be compatible with "the implied freedom of political communication"

1. For the purposes of the argument I have assumed, without deciding, that the statements made by Mr Tayeh are open to be considered communication about government or political matters in the relevant sense.

1. Counsel for Mr Tayeh makes the following submissions:

(a) That the Court should adopt the more limited "fighting words" definition of "insulting words" adopted by Gummow and Hayne JJ (joint judgment) and Kirby J in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 (hereinafter Coleman);

(b) That the decision of Harper J in Ferguson v Walkley [2008] VSC 7; (2008) 17 VR 647 (hereinafter Ferguson), adopting the "wide view" of "insulting words", should be distinguished and/or limited to "insulting words" outside of the context of political communication;

(c) That the prosecution position that s 17(1)(c) Summary Offences Act is a crime of strict liability should be rejected. Rather, an Accused person must have intended to provoke an unlawful physical retaliation (primary position) or have intended to have said words that were deeply or seriously insulting and therefore contrary to contemporary standards of good order;

(d) That application of section 32 and section 15 of the Charter of Human Rights and Responsibilities Act 2006 (hereinafter the Charter) supports the narrow interpretation of "insulting words" and the intent required;

(e) That the "implied freedom of political communication" arising from the Constitution would apply to "read down" the wider interpretation of "fighting words" and "intent" when such words penalise insulting words uttered in discussing or raising matters concerning politics and government.

1. Counsel for the informants made the following submissions:

(a) That a wider view of "insulting words" as articulated in the judgement of Gleeson CJ in Coleman should be adopted;

(b) That the decision of Ferguson adopting the decision of Gleeson CJ in Coleman should be followed as binding authority. There is no basis to distinguish Ferguson as there here is no different test from where the words are spoken in a political context from a non-political context. Rather, whether the words are spoken as a form of political communication is a contextual factor relevant to the application of the test;

(c) That the decision of Secretary to the Department of Justice and Regulation v Bhatia [2018] VSC 500 (hereinafter Bhatia) is binding authority that offences under s 17 Summary Offences Act are strict liability offences;

(d) That there is no ambiguity with respect to s 17(1)(c) and accordingly no scope for consideration of the Charter.

(i) The acts here fall outside the right to freedom of expression under s 15(1) Charter as what constitutes a protected form of exercise of the right to freedom of expression must be informed by public policy considerations inherent in the nature of a free and democratic society; and/or

(ii) Section 17(1)(c) of the Summary Offences Act (as interpreted) is a lawful restriction of restriction of freedom of expression that is necessary for the protection of public order and rights of other persons and falls within of s 15(3) Charter as a lawful restriction on the right to freedom of expression.

(f) If the Court finds that the offence provision (as interpreted) is a lawful restriction on the freedom of expression (as per s 15(3) of the Charter) there is no cause to consider section 7 or 32 of the Charter.

(g) That if section 7 or 32 of the Charter fall to be considered, the limitation on the freedom of expression is demonstrably justified taking into account all the factors set out in s 7(2) of the Charter.

How are insulting words to be defined - two approaches in Coleman v Power

1. Both parties in this matter have sought to rely on the decision of the High Court in Coleman.

1. In very short compass the case arose from a charge under s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld). Relevantly, that Act provided the following:

"Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear-

(d) uses any threatening, abusive, or threatening words to any person

1. The similarities between the section considered in Coleman and the Victorian provision are obvious. However, there is at least one significant difference.

1. The facts of Coleman are of little significance other than it was at least open to find "that his conduct was, in the broadest sense "political".[1]

1. Gummow and Hayne JJ enunciated the narrow approach in the follow terms considering "insulting words" in the section to be:

"...words which, in the circumstances in which they are used, are provocative, in the sense they are intended to provoke unlawful physical retaliation, or they are reasonably likely to provoke unlawful retaliation from either the person to whom they are directed or some other who hears the words uttered."[2]

"Whether words are insulting would turn on the assessment of whether, in the circumstances in which they were used, they were either intended to provoke physical retaliation, or were reasonably likely to do so."[3]

"They are words intended, or reasonably likely, to provoke unlawful physical retaliation. They are words prone to arouse a physical response, or a risk thereof."[4]

"The Act, so interpreted, is confined to preventing and sanctioning public violence and provocation to such conduct. As such, it deals with extreme conduct or "fighting words."[5]

1. Gleeson CJ, Callinan and Heydon JJA rejected the "fighting words" approach. It is important to recognise that while joining in the majority in setting aside the conviction, McHugh J rejected the view that the proper interpretation of the section was limited to "fighting words".

1. In rejecting the narrow approach Gleeson CJ noted:

"It is open to Parliament to form the view that threatening, abusive or insulting speech and behaviour may in some circumstances constitute a serious interference with public order, even where there is no intention, and no realistic possibility, that the person threatened, abused or insulted, or some third person, might respond in such a manner that a breach of the peace will occur."[6]

1. His Honour considered that the difficulty was in confining the operation of the concept of "insulting words" within reasonable bounds and set out a number of principles which would do so:

(a) Parliament did not intend that any words would wound a person's feelings should involve a criminal offence;[7]

(b) What constituted insulting speech vary with time and place and may be affected by the circumstances in which the relevant conduct occurs; [8]

(c) The sort of behaviour that was required was behaviour which produced in a reasonable person an emotional reaction (such as anger, resentment, disgust or outrage) beyond a reaction that was no more than the consequence of a difference of opinion on a political issue;[9]

(d) Conduct that insulted people sufficient deeply or seriously to warrant the interference of the criminal law;[10]

(e) "Insulting words" did indeed cover words intended or likely to provoke a forceful response, but it was not limited to that; [11]

(f) Insulting words must not merely be derogatory, rather it must be of such a nature that the use of language, in the place where it is spoken, to a person of that kind, is contrary to contemporary standards of public good order, and goes beyond what, by those standards, is simply an exercise of freedom to express opinions on controversial issues;[12]

(g) It is impossible to state comprehensively what language will involve such a disturbance of public order or such an affront to contemporary standards of public order as to equal insulting words;[13]

(h) An intention, or likelihood, of provoking violence may be one such circumstance. The deliberate inflicting of serious and public offence or humiliation may be another.[14]

1. Callinan J rejected the "fighting words" limitation, noting that while words intended or likely to provoke a breach of peace were powerful evidence of being "insulting" whether words were relevantly insulting were to be determined by insults which:

"having regard to the huge variation in human sensitivities .... either unnecessarily potentially provocative, or so incompatible with civilised discourse and passage, that they should be proscribed."[15]

1. Heydon J rejected the position that the section was limited to conduct intended or reasonably likely to provoke unlawful physical reaction, rather the section prohibits use of language:

"which is insulting in the ordinary meaning of the word and so is liable ''to hurt the personal feelings of individuals" [16]

1. McHugh J rejected that there was any basis for limiting "insulting" and that the word should be given their "natural and ordinary" meaning and should not be limited to words intended or likely to occasion a breach of the peace.[17] Ultimately, His Honour determined that because of the breadth of this concept the section contravened the implied freedom of political communication and thus had to be read down in relation to insulting words concerning politics or government. [18]

Difficulty determining the ratio decidendi on the construction of "insulting words" in Coleman v Power

1. It is worth noting the recent judgment of Edleman J in MJZP v Director General of Security and Another [2025] HCA 26 with respect to the difficulty in discerning ratio decidendi of an appellate court which is composed of multiple judges who give separate (or near separate judgements).

1. In Coleman v Power there are a majority of justices who reject the limitation of insulting words to fighting words. However, three of the four of those justices are in the minority with respect to the ruling. Further, while there is unanimity between the four justices in rejecting the limitation to "fighting words" there is not unanimity with respect to the alternate test (i.e. the ordinary and natural meaning of insulting or something more restrictive).

1. All three justices who limit insulting words to "fighting words" are in the majority in relation to the ruling, but of course this is not tantamount to there existing a majority of justices on the point.

1. In my view, at its height, it can be said that Coleman v Power constitutes strong persuasive authority in relation to both the wide and narrow view as to the definition of "insulting words".

The reasoning in the narrow approach in Coleman v Porter is not readily applied to Section 17 of the Summary Offences Act

1. When considering the submissions that this Court should adopt the "narrow approach" in Coleman v Power one must not lose sight of a significant difference between the legislation considered there, s 7(1)(d) Vagrancy, Gaming and other Offences Act (Qld) and S 17 Summary Offences Act (Vic).

1. S7(1)(d) Vagrancy, Gaming and other Offences Act (Qld) was in the following terms:

(d) uses any threatening, abusive, or insulting words to any person

Whilst s 17(1)(c) Summary Offences Act (Vic) states:

"(c) uses profane indecent or obscene language or threatening abusive or insulting words

1. Under s 7(1)(d) the insulting words had to be used to a person and not merely said in public. No such requirement exits in relation to the Victorian Legislation.

1. In support of the conclusion that s 7(1)(d) was limited to "fighting words", Gummow and Hayne JJA relied on four factors:

"Those four factors are first, that the section creates an offence; secondly, the description of the words as ''insulting''; thirdly, the requirement that the words are used to a person; and fourthly, the requirement that the words are used in, or within the hearing of, a public place. Those factors, standing alone, suggest that the ''insulting'' words that are proscribed are those which are directed to hurting an identified person and are words which, in the circumstances in which they are used, are provocative, in the sense that either they are intended to provoke unlawful physical retaliation, or they are reasonably likely to provoke unlawful physical retaliation from either the person to whom they are directed or some other who hears the words uttered."[19] (emphasis added)

"the requirement that ''threatening, abusive, or insulting words'' be used to a person demonstrates that s 7(1)(d) is not directed to simply to regulating the way in which people speak in public. No crime would be committed by uttering threats to, or abuse or insults about, some person who is not there to hear what is said..."[20] (Emphasis in the original)

"Making criminal the use of certain kinds of words to another can be explained only by reference to the effect on, or the reaction of, the person to whom the words are directed. It can be explained only by the provocation offered."[21] (emphasis in the original)

1. It is clear from the foregoing paragraphs that the fact that the legislation required the words to be directed to a person formed an indispensable link in the chain of reasoning that the Queensland legislation was limited to words that were either intended to provoke an unlawful physical retaliation or reasonably likely to do so.

1. Any effort to ignore the importance of that part of the reasoning as simply an irrelevancy arising from the particularities of the Queensland legislation must be rejected.

1. Indeed, the test as enunciated in the joint judgement is predicated on the requirement that the words are directed to hurting an identified individual:

"...the insulting words that are proscribed are those which are directed to hurting an identified person and are words which, in the circumstances in which they are used , are provocative, in the sense they are intended to provoke unlawful physical retaliation, or they are reasonably likely to provoke unlawful retaliation from either the person to whom they are directed or some other who hears the words uttered."[22] (emphasis added)

1. It is important to bear in mind that the narrow approach was only supported by 3 of the 7 justices in Coleman (Gummow and Hayne JJ in a joint judgement and Kirby J).

1. Gleeson CJ, Callinan, Heydon and McHugh JJA all specifically considered and rejected the submission that s7(1)(d) was limited to "fighting words".

1. In the submissions made on behalf of Mr Tayeh it was properly conceded that McHugh J was part of the majority in setting aside the conviction in Coleman but that His Honour rejected the narrow construction of insulting words.

1. Given the importance of the requirement that the words be used to a person in the reasoning of Gummow and Hayne JJ even had there been a clear majority opinion in support of the narrow approach to "insulting words" it would arguably have been limited to the particularities of the Queensland legislation.

1. Were I required to determine the matter on the basis of the judgments in Coleman alone, I would have determined, for the reasons articulated in the judgment of Gleeson CJ in Coleman, the wider view of "insulting words" (confined within the parameters set out in that judgment) should be applied to the Victorian Summary Offences Act including where the words are uttered in the context of communication on political and governmental matters.

This Court is bound by the decision in Ferguson

1. Harper J had cause to consider the meaning of s 17(1)(c) Summary Offences Act in Ferguson v Walkley [2008] VSC 7 giving consideration to the various judgments in Coleman.

1. In that case Mr Ferguson had been convicted of using "insulting words" following an "expletive and slang laden tirade" which in no way could be considered to involve communication on political or government matters.

1. His Honour noted the importance of considering the authorities in light of the particular legislation under which it was decided and noted the distinction with the legislation in the Vagrancy Act requiring insulting words to any person whereas there was no such requirement under s 17(1)(c) Summary Offences Act.

1. In rejecting the submission that s 17(1)(c) Summary Offences Act was limited to words that were intended, or reasonably likely to provoke unlawful retaliation Harper J noted that this submission was in fact rejected by a majority of the Justices in Coleman.

1. His Honour noted Gleeson CJ's view that Parliament could not have intended to impose criminal sanctions upon the use of all language that fell within the definition of "insulting" and the problem of confining the operation of the legislation within reasonable bounds.

1. His Honour adopted Gleeson CJ's characterisation of insulting words noting the concern that limiting insulting words to "intended, or reasonably likely, to provoke unlawful retaliation" was too limiting and allowed for circumstances where the person to was being insulted was unlikely or unable to retaliate.[23]

1. His Honour then referred to paragraphs 14 to 16 of the decision of CJ Gleeson and adopted it.

1. Thus, the Gleeson CJ's formulation is, at the very least in relation to insulting words outside the context of political communication, the applicable test in Victoria with respect to the test of what constitutes insulting words.

1. I am bound to follow the reasoning of Harper J in Ferguson in determining the test of what constitutes "insulting words" under s17(1)(c) Summary Offences Act. Even if I were not so bound I would respectfully adopt His Honour's reasoning as to why the wider approach is preferable.

1. I accept that the application of the Charter of Human Rights and Responsibilities was not argued before Harper J in Ferguson. However, it is clear in adopting the wide approach in that decision His Honour was both cognisant of the Charter and the potential impact of provisions such a s 17(1)(c) on human rights.[24]

1. I also accept that in the Ferguson case Mr Ferguson was in no way seeking to engage in any form of political communication. However, this does not detract from the fact that the ratio decidendi of the decision was how insulting words are to be defined, with the definition being formulated in light of a preceding discussion in relation to the various decisions of Coleman and the potential impact of such legislation on constitutionally protected freedom of communication concerning political matters.

1. Further, the formulation adopted in Ferguson clearly and explicitly places whether the words spoken are contrary to contemporary standards of good order within the context in which they are spoken including whether they are public statements on political and government issues. As noted in Ferguson:

"...insulting behaviour occurs in circumstances that are significantly variable. The context is therefore important, perhaps crucial." [25]

Whether Bhatia is binding on the issue of whether strict liability applies to s 17(1)(c) Summary Offences Act

1. The prosecution rely upon the decision of Department of Justice and Regulation v Bhatia [2018] VSC 500 (hereinafter Bhatia) with respect to s 17(1)(d) Summary Offences as "clear and binding authority" that an offence under s 17(1)(c) of the Summary Offences Act does not require mens rea.

1. The first matter to note is that Bhatia does not stand for any specific proposition with respect to s 17(1)(c) Summary Offences Act. Indeed, Richards J noted that the Summary Offences Act contains a jumble of offences that have been amended and revised over more than 50 years and it is hard to discern any clear legislative intent from the language of isolated provisions.[26]

1. Further, it appears there were no submissions in Bhatia on, or explicit consideration of, the decision in Ferguson. Nor does the decision address the exploration of intent in relation to the Queensland equivalent of s 17(1)(c) Summary Offences Act in Coleman. This is not surprising, recognising that the Summary Offences Act involves a disparate range of offences some of which identify a state of mind that must be established as an element of the offence and some of which do not. Any analysis of s 17(1)(d) based on s 17(1)(c) would have been of limited utility.

1. Additionally, it is important to note the distinction between "behaves" in an "insulting manner" in s 17(1)(d) and "uses" "insulting words" in s 17(1)(c).

1. Whilst Bhatia does not address the question of intent with respect to s 17(1)(c) Ferguson does albeit obliquely. Ferguson J adopted the reasoning of Gleeson CJ and specifically quoted the following:

"covers insulting words intended or likely to provoke a forceful response"

"the deliberate inflicting of serious and public offence or humiliation"

1. In my view it is impossible to reconcile the wholesale adoption of these passages without caveat or exception with the offence of use of insulting words being one of strict liability.

1. At the very least Ferguson appears to be strongly persuasive authority supporting the view that the offence in not a strict liability offence.

1. Accordingly, I am of the view that Bhatia does not constitute binding authority that s 17(1)(c) Summary Offences Act is a strict liability offence.

Whether mens rea is an ingredient of the offence of use insulting words in a public place and if so what intent is required

1. The starting point of an analysis as to the question of intent is that mens rea is an essential ingredient of every offence, although this presumption may be displaced by the words of the statute or its subject matter.[27] Normally, the mental element required to be established corresponds to the actus reus of the offence, however the criminal law sometimes distinguishes between a general intent to engage in a prohibited act and a specific intent to bring about a specified consequence.

1. As noted in the decision of Brennan J in He Kaw Teh:

"General intent and specific intent are...distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate."[28]

1. As noted in the majority decision in DPP v Cormick [2023] VSCA 186 while voluntariness and general intent are generally implied in the statute creating the offence as mental elements applicable to the act involved in the offence, specific intent is not so implied.[29]

1. However, again as noted in Cormick, ultimately it is the text of the provision which is controlling with respect to the question of whether specific intent is required.[30]

1. One must bear in mind the trichotomy as set out in the decision of Brennan J in He Kaw Teh:

"However, the definition of a criminal offence ordinarily comprehends only the prohibited act or omission (conduct), the circumstances in which the act is done or the omission is made and, in some instances, the results of the act or omission. These elements - conduct, circumstances and results - are...the external elements necessary to form a crime. When a statute creates and defines an offence by reference to it's external elements, a mental element is usually implied in the definition"[31]

"General intent and specific intent are distinct mental states. General or basic intent relates to the doing of an act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate. Both general intent and specific intent may be established by knowledge; the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence. Of course, proof of an actual desire or wish to do an act of a prescribed character is proof of a general intent but for practical purposes knowledge of the circumstances which give the act its character when an act is voluntarily done is the ordinary form of an intent to do it....Just as knowledge of the probable (or likely) results of an act establishes a specific intent to cause those results, so the doing of an act with knowledge that the circumstances are probably such as to make the act criminal establishes a general intent to do an act of that character...Actual knowledge is required but what is generally required to be known is at least the likelihood that the prescribed result of the act will occur (specific intent) or at least the likelihood that the existing circumstances are such as to give an act the character of the act involved in the commission of the offence in question (general intent)." (emphasis added)

1. It is important to note that what is proscribed under section 17(1)(c) Summary Offences Act is "use" "insulting words". There is no requirement under the Victorian legislation that they be used to a person or that a particular person, in the relevant sense, be "insulted". However, "use" in this context is not synonymous with utter or speak. I accept that to "use" insulting words means to use those words as insulting words.

1. A court construing a statutory provision must strive to give meaning to every word of the provision and:

"...such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent"[32]

1. While to "use" an object or word may suggest a purpose to achieve a result it also means the use of an object as a particular category of thing. Thus, a bottle may be used as a vessel or used as an offensive weapon. This reasoning applies equally with words.

1. "Insulting words" is in no way defined to include any set of particular words. Therefore, it is not sufficient to simply hold a general intent only to utter a particular word or words. Rather, "insulting words" incorporates the circumstances which, to adopt the language of Brennan J, "give the act it's character". Thus, the general intent incorporates either desire or knowledge that the words spoken will be insulting in the relevant way (within in the Gleeson CJ formulation). This is distinct from a specific intent as to an actual result ie intended that a person actually be "insulted". Indeed, proof of the offence does not actually require any such result.

1. This gives proper regard to the fact that words do not carry any inherent quality as "insulting". They are always context dependant. A perfect example of this is how "slur words" can be co-opted or "reclaimed" by the targeted group. An intent to humiliate or denigrate when speaking the word or words is one of the circumstances of the act which may go to giving the words their character as "insulting words". Equally, the absence of any such general intent may, dependant on the relevant context, remove the uttering of such words as being "the use of" "insulting words".

1. Such an interpretation is consistent with the purpose of the Summary Offences Act to maintain public order and recognises that breach of the provision carries with it a term of imprisonment. The purpose of the section is to deter persons from engaging in using insulting words not to take preventive measures to avoid the possibility that, without deliberate conduct, the words they utter may be perceived as being insulting.[33]

1. It is not however necessary for the prosecution to demonstrate a specific intent ie the result that any person or persons were or would be "insulted" in the relevant way. The absence of a requirement that the words be "to" a person demonstrates that the language of the section does not require proof of a specific intent.

1. Thus, for the offence to be made out the prosecution must prove beyond reasonable doubt a general intent to use the words uttered as "insulting words". Such a general intent is incorporated within the states of mind given at paragraph 14 of the Gleeson CJ judgment as these states of mind which involve a specific intent (such as provoking a forceful response) incorporate the general intent required, namely the use of the words as insulting words. Other examples such as a deliberate intention of serious and public offence, or humiliation (both examples of a specific intent to achieve a result) entail a priori the general intent to use the words as "insulting words". But it is important not to conflate such examples with a requirement of specific intent. A general intent to use the words as insulting words may be inferred from the words spoken and the context (including whether they are spoken as a form of political communication) in which those words are uttered. Equally, the context may demonstrate that there was in fact no intent to use the words as "insulting words" when they were uttered i.e. in a lecture giving examples of forms of racial vilification or in the context of a ribald friendship.

Charter of Human Rights and Responsibilities Act 2006 and the Implied Freedom of Political Communication

1. Following the reasoning in Ferguson and the decision of Gleeson CJ in Coleman, it is clear that in determination of the test of whether any words uttered constitute insulting words it is relevant to take into account whether the words uttered are done so in the course of a public statement of opinion on political and governmental issues. Further, the requirement that the prosecution must prove a general intent that the words uttered are insulting words means that the provision does not capture words uttered without at least the speaker having averted to the nature of the words as being insulting words in the context in which they are used.

"...it must be of such a nature that the use of the language, in the place where it is spoken, to a person of that kind, is contrary to contemporary standards of good order, and goes beyond what, by those standards, is simply and exercise of freedom to express opinions on controversial issues." (emphasis added)

"But where there is no threat to the peace, and no victimisation, then the use of personally offensive language in the course of a public statement of opinions on political and governmental issues would not of itself contravene the statute. However, the degree of personal affront involved in the language, and the circumstances may be significant" (emphasis added)"[34]

1. In the determination as to whether, objectively, the insulting words are contrary to contemporary standards of good order, the Court must take into account all of the circumstances and context in which words are used. A very significant matter in that determination will be whether the insulting words are used concomitant to a statement of views on political and governmental issues. This is because, in consideration of contemporary standards of good order, recognition must be given to the fact that in Australia:

"... we tolerate robust public expression of opinions because it is part of our freedom and inherent in the constitutional system of representative democracy. The system requires freedom of communication. It belongs as much to the obsessive, the emotional and the inarticulate as it does to the logical, the cerebral and the restrained."[35]

1. However, the right of freedom of expression, is not absolute, but is conditional and qualified.[36] It may also be subject to lawful restriction, at very least with respect to respecting the rights and reputations of other persons and the protection of public order.[37]

1. Section 15(2) of the Charter relevantly provides as follows:

Every person has the right to freedom of expression which includes the freedom to...impart information and ideas of all kinds...and whether-

1. In Magee v Delaney [2012] VSC 407 Kyrou J considered the parameters of s 15(2) of the Charter. Salient to this matter His Honour noted the following:

(a) The very width of the conduct which may fall within the concept of imparting information and ideas under s15(2) suggests that what constitutes a protected form of the exercise of the right to freedom of expression must be informed by public policy considerations inherent in the nature of a free and democratic society.[38]

(b) Even the most heinous crimes may constitute a form of expression by those who commit those crimes wishing to convey a political message or protest.[39]

(c) Therefore, there are limitations inherent within the concept of the right to impart information and ideas inherent in s 15(2) of the Charter independent of s 15(3).[40]

(d) Whilst s 15(3) imposes its own restrictions on the freedom of expression, s 15(3) does not prevent public policy considerations from informing the scope of the protection conferred by s 15(2) on forms of expressive conduct.

1. Further, the limitation on that freedom is explicitly recognised in s 15(3) of the Charter:

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary-

(a) to respect the rights and reputations of other persons; or

1. It is clear from the foregoing that the Charter recognises lawful restrictions reasonably necessary to preserve public order but also to respect the rights and reputations of other persons.

1. For instance, one of the significant rights enshrined in the Charter is s 19 cultural rights:

(1) All persons with a particular cultural, religious or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, to declare and practice their religion and to use their language.

1. Further, the reference to rights and reputation of other persons in s15(3)(a) is not limited to rights under the Charter.[41]

1. S 17(1)(c) Summary Offences Act as construed in the decision of Ferguson constitutes a lawful restriction on the freedom of expression both:

(a) arising from the public policy limitations inherent within s 15(2) Charter; and/or

(b) to respect the rights and reputations of other persons under s 15(3)(a) Charter; and/or

(c) for the protection of public order under s 15(3)(b) Charter.

1. I accept the prosecution submission that, accordingly, the Court need not turn its mind to the application of s 7 or s 32 of the Charter.

1. However, in case I am incorrect with respect to s 15 of the Charter I turn to section 32 and 7 of the Charter.

1. Section 32 provides that:

"So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights"

1. Section 7(2) provides:

A human right may be subject under any law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(b) the importance of the purpose of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that that the limitation seeks to achieve.

1. I note that Section 32 "in effect requires the court to discern the purpose of the provision in accordance with the ordinary techniques of statutory construction" and requires "statutes to be construed against the background of human rights and freedoms set out in the Charter".[42]

1. At this point one must recognise the similarity between the freedom of expression enshrined in s 15 of the Charter and the concepts of "freedom to express opinions on controversial issues" and "public statement of opinions on political and governmental issues" in the decision of Gleeson CJ in Coleman.

1. As noted in that judgement in relation to legislation creating public order offences generally:

"The object of such legislation is generally the same; the preservation of order in public places in the interests of amenity and security of citizens, so that they may exercise, without undue disturbance, the rights and freedoms involved in the use of and enjoyment of such places. The right of one person to ventilate personal grievances may collide with the rights of others to peaceful enjoyment of public space."

"The answer necessarily involves striking a balance between competing interests, both of which may properly be described as rights or freedoms."

"I am unable to conclude that the legislation, in its application to this case, is not suitable to the end of maintaining public order in a manner consistent with an appropriate balance of all the various rights, freedoms and interests, which require consideration." [43]

1. As noted by Harper J in Ferguson with reference to Coleman:

"...it was, so the majority held, reasonably appropriate and adapted to achieve a legitimate end in a manner consistent with the system of representative government enshrined in the Commonwealth Constitution. It doubtless follows that the equivalent provisions in the Summary Offences Act can, in the words of s 7(2) of the Charter of Human Rights and Responsibilities, "be demonstrably justified in a free and democratic society based on human dignity, equality and freedom...taking into account all relevant factors."[44]

1. It is a concomitant of a "free and democratic society based on human dignity, equality and freedom" that individuals and groups within that society be free from persecution. A restriction on "insulting words" to where there is an intention to breach the peace or it is reasonably likely to create such a breach fails to adequately promote and protect human dignity and equality by failing to criminalise behaviour where the recipient of the insult is unlikely to breach the peace in response.

1. The freedom of expression is a fundamental right in a democratic society but equally important are limitations on that freedom of speech to prevent victimisation of individuals or groups. This is as important purpose of the rule of law in a democratic and equal society as the promotion of public order, perhaps more so. Recognition of the importance of the context in which insults are made, and that insults made in the context of political communication are far less likely to be contrary to contemporary standards of good order in a democracy properly restricts the operation of the limitation's impact on freedom of expression. A limitation to insults intended or reasonably likely to breach the peace fails to adequately protect the human dignity, equality and freedom of those unlikely to breach the peace in response, thus there is no less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

The implied freedom of political communication

1. Coleman held by a majority of six to one that the equivalent provision in the Queensland Act was reasonably appropriate and adapted to achieving a legitimate end in a manner consistent with the system of representative government enshrined in the Commonwealth Constitution.

1. I respectfully adopt the reasoning of Gleeson CJ that an interpretation of the legislation in the manner set out in His Honour's judgment (and subsequently adopted in Ferguson) that such legislation in its application to statements made about governmental or political matters is suitable to end of maintaining public order in a manner consistent with an appropriate balance of all the various rights, freedoms and interests, which require consideration. Accordingly, it is neither invalid nor required to be read down.

[1] Coleman Paragraph 28 per Gleeson CJ

[24] See for instance paragraph 5 where His Honour notes that criminalizing offensive language or conduct has the potential to interfere inter alia with political expression "and more relevantly for present purposes those rights protected by s15 and s16 of the Charter of Human Rights and Responsibilities. Further, paragraph 23 where His Honor states "It doubtless follows that the equivalent provisions in the Summary Offences Act can, in the words of s7(2) of the Charter of Human Rights and Responsibilities, "be demonstrably justified in a free and democratic society based on human dignity, equality and freedom...taking into account all relevant factors.""

[27] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523

[28] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 569-70 cited with approval in Cormick [2023] VSCA 186

[32] Project Blue Sky Inc v Australian Broadcasting Authority (194) CLR 355 at para 71

[33] See the distinction drawn by Brennan J in He Kaw Teh page 567

[34] Para 33 of Ferguson quoting the judgement of Gleeson CJ in Coleman para 14-16

[36] Magee v Delaney [2012] VSC 407 para 103