Monis v The Queen Case: High Court of Australia
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Added on 2019-10-18
Monis v The Queen Case: High Court of Australia
Added on 2019-10-18
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Monis v The Queen [2013] HCA 4 (27 February 2013)HIGH COURT OF AUSTRALIAFRENCH CJ,HAYNE, HEYDON, CRENNAN, KIEFEL, BELL and [ENTER YOUR SID HERE] JJMatter No S172/2012MAN HARON MONIS APPELLANTANDTHE QUEEN & ANOR RESPONDENTSMatter No S179/2012AMIRAH DROUDIS APPELLANTANDTHE QUEEN & ANOR RESPONDENTSMonis v The QueenDroudis v The Queen[2013] HCA 427 February 2013S172/2012 & S179/2012ORDERIn Matter No S172/2012:Appeal dismissed/allowed.In Matter No S179/2012:Appeal dismissed/allowed.On appeal from the Supreme Court of New South Wales.Monis v The QueenDroudis v The QueenSTUDENT [ENTER YOUR SID HERE] J.It is found that Mr. Monis has sent letters to the relatives including spouses and parents of thesoldiers of Australia who was killed while they were serving in Afghanistan. The letter was alsosent to one of the Austrade official's mothers who were also killed in Indonesia bombing. Monisexpressed sympathy to those relatives in his letters for the death of their closed ones but at thesame time, he criticized the people who died. He asserted in his letters that the deceased or the1
soldiers killed innocent civilians and hence they were murderers. He also compared one of thedeceased's body to that of a pig and wrote that his body resembled the body of a dirty pig. Hecompared the soldiers to Hitler. Not only this, but Monis sent the copies of these letters to thepoliticians in Australia. As per Section 471.12 of the code, if a person is using the postal service or any other similarservice in such a way that it is being regarded as offensive by the reasonable persons in all kindsof circumstances, then it is an offense committed by that person.But Monis claimed that if he was punished for this, then it would be the injustice because section417.12 is violating the implied constitutional freedom of political communication. So, here the Court did not oblige to find that the letters or the communications, in this case, areoffensive or not, but it focused on determining that whether section417.12 infringed the impliedfreedom of political communication or not. This is because it is prohibited by the Constitutionthat the Parliament enacts such laws in which freedom of communication on the matters ofgovernment and politics is restricted. But prohibition can be relaxed if the Parliament enactedany such law which is reasonably appropriate and adapted to serve a legitimate end in a mannercompatible with the maintenance of the constitutionally prescribed system of government inAustralia.To determine that whether section417.12 infringed the implied freedom of politicalcommunication or not, a test was applied by the Court that was expounded in the case of Lange vAustralian Broadcasting Corporation. The test has two limbs:1.The first limb questioned the effectiveness of the law in burdening the freedom ofcommunication on the government and political matters. 2.The second limb related to the first one as if the law burdens the freedom, then does ithave an object which is found to be compatible with maintaining the constitutionallyprescribed system of the government that is responsible and representative. Also,whether or not the law is appropriate reasonably and adapts to achieve the legitimate endor the object. 2
There were three purposes of section 471.12:1.Protecting the integrity of the post in both the terms i.e. physically and as acommunication means where the public can gain confidence.2.Prevention of the breaches of peace that may arise as a result of the offensivecommunication.3.Prevention of the harm in the nature of feelings that are wounded, or the feelings ofanger, disgust, outrage, or resentment on the part of the person who receives it. The nature of the postal communications is unsolicited, and it cannot be avoided easily. When aperson receives any letter, they open it and read it. So the purpose of this section is protecting thepeople from intruding in their personal domain of the material which is unsolicited and isseriously offensive. It can also be said that the burden that is put on the political communicationis incidental because those communications that are prohibited by the section 471.12 are limitedto that communication that have a serious offensive nature. Any effect on the freedom is notsuggested under this section that can be regarded as extensive. Also, the communications ofpolitical nature are not prevented that does not convey such matter which is offensive. Section 471.12 has a broad scope, and it should be taken into consideration in determining thatwhether it effectively burdens the implied freedom or not. This conclusion is rejected because itwas beyond the boundaries of the debate of Australian politics and also beyond the outer fringesof the political discussion. By ‘effectively burden’ it means that nothing is more complicatedthan the effect of the law for prohibiting the content of the political communications. But theeffect on the political communication which may be inconsequential does not require anyaffirmative answer to the inquiry of the first limb. The section 471.12 does not fall in thecategory where the effect on the political inquiry content is real. Therefore, it can be said that theLange test is satisfied, and the section does not impermissibly burden the implied freedom ofcommunication of political ideas. Then in the second Lange test, the scope of the word ‘offensive’ in relation to the postal orsimilar services is difficult to define because it is difficult to refer to the common characteristics3
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