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Requirement
Assignment based on Constitutional law
Monis v The Queen [2013] HCA 4 (27 February 2013)
HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, HEYDON, CRENNAN, KIEFEL, BELL and [ENTER YOUR SID HERE] JJ
Matter No S172/2012
MAN HARON MONIS APPELLANT
AND
THE QUEEN & ANOR RESPONDENTS
Matter No S179/2012
AMIRAH DROUDIS APPELLANT
AND
THE QUEEN & ANOR RESPONDENTS
ORDER
In 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 Queen
Droudis v The Queen
Solution
STUDENT [ENTER YOUR SID HERE] J.
It is found that Mr. Monis has sent letters to the relatives including spouses and parents of the soldiers of Australia who was killed while they were serving in Afghanistan. The letter was also sent to one of the Austrade official's mothers who were also killed in Indonesia bombing. Monis expressed sympathy to those relatives in his letters for the death of their closed ones but at the same time, he criticized the people who died. He asserted in his letters that the deceased or the soldiers killed innocent civilians and hence they were murderers. He also compared one of the deceased's body to that of a pig and wrote that his body resembled the body of a dirty pig. He compared the soldiers to Hitler. Not only this, but Monis sent the copies of these letters to the politicians in Australia.
As per Section 471.12 of the code, if a person is using the postal service or any other similar service in such a way that it is being regarded as offensive by the reasonable persons in all kinds of 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 section 417.12 is violating the implied constitutional freedom of political communication.
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So, here the Court did not oblige to find that the letters or the communications, in this case, are offensive or not, but it focused on determining that whether section 417.12 infringed the implied freedom of political communication or not. This is because it is prohibited by the Constitution that the Parliament enacts such laws in which freedom of communication on the matters of government and politics is restricted. But prohibition can be relaxed if the Parliament enacted any such law which is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government in Australia.
To determine that whether section 417.12 infringed the implied freedom of political communication or not, a test was applied by the Court that was expounded in the case of Lange v Australian Broadcasting Corporation. The test has two limbs:
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1. The first limb questioned the effectiveness of the law in burdening the freedom of communication on the government and political matters.
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2. The second limb related to the first one as if the law burdens the freedom, then does it have an object which is found to be compatible with maintaining the constitutionally prescribed system of the government that is responsible and representative. Also, whether or not the law is appropriate reasonably and adapts to achieve the legitimate end or the object.
There were three purposes of section 471.12:
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1. Protecting the integrity of the post in both the terms i.e. physically and as a communication means where the public can gain confidence.
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2. Prevention of the breaches of peace that may arise as a result of the offensive communication.
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3. Prevention of the harm in the nature of feelings that are wounded, or the feelings of anger, 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 a person receives any letter, they open it and read it. So the purpose of this section is protecting the people from intruding in their personal domain of the material which is unsolicited and is seriously offensive. It can also be said that the burden that is put on the political communication is incidental because those communications that are prohibited by the section 471.12 are limited to that communication that have a serious offensive nature. Any effect on the freedom is not suggested under this section that can be regarded as extensive. Also, the communications of political 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 that whether it effectively burdens the implied freedom or not. This conclusion is rejected because it was beyond the boundaries of the debate of Australian politics and also beyond the outer fringes of the political discussion. By ‘effectively burden’ it means that nothing is more complicated than the effect of the law for prohibiting the content of the political communications. But the effect on the political communication which may be inconsequential does not require any affirmative answer to the inquiry of the first limb. The section 471.12 does not fall in the category where the effect on the political inquiry content is real. Therefore, it can be said that the Lange test is satisfied, and the section does not impermissibly burden the implied freedom of communication of political ideas.
Then in the second Lange test, the scope of the word ‘offensive’ in relation to the postal or similar services is difficult to define because it is difficult to refer to the common characteristics of such services. The purpose is to describe the prevention of conduct which is prohibited by it. Therefore it can be said that it should not be considered as a legitimate end because the breadth of it is incompatible and the implementation is in line with the maintenance of the freedom which is implied.
There are many enquires that constitute the second test. There should be a determination of the relation between the object of valid legislative and the means for adopting the attainment. For this, it is held that the latter should be in proportion to the object. Further, if there are means that are less drastic, and they can be used for the achievement of purposes of law, then it may result in invalidity. Then in the second test, it was also required that the system of the representative government.
For the final judgment, the concept of ‘home as castle’ is considered. Holding this concept helped in the conferring of special benefit of the citizen's privacy that all the people can enjoy the confines of their houses. It is the responsibility of the State that they must protect the privacy, and it was considered as ‘ ability to avoid the intrusions.' The purpose can be considered as legitimate as it is compatible with the maintenance of the system of government that is prescribed by the Constitution. This shows that the section 471.12 is appropriate reasonably and reasonably adapted to do so. This section tries to protect people from the serious intrusion of the offensive material into the personal domain in line with the Lange. But it can be considered only when it does not go too far. The effects of the section on the communication about politics are therefore incidental and proportionate the purpose of this section. Since the sections prohibit the communications that are very serious in nature, then it cannot be said to have an impinge on the implied freedom.
Finally, it can be said that the burden that is put on the political communication is incidental because those communications that are prohibited by the section 471.12 are limited to that communication that have a serious offensive nature. Any effect on the freedom is not suggested under this section that can be regarded as extensive. Also, the communications of political nature are not prevented that does not convey such matter which is offensive. The scope of Section 471.12 is broad, and it should be taken into consideration in determining that whether it effectively burdens the implied freedom or not. This conclusion is rejected because it was beyond the boundaries of the debate of Australian politics and also beyond the outer fringes of the political discussion. By ‘effectively burden' it means that nothing is more complicated than the effect of the law for prohibiting the content of the political communications. But the effect on the political communication which may be inconsequential does not require any affirmative answer to the inquiry of the first limb. The section 471.12 does not fall in the category where the effect on the political inquiry content is real. Therefore, it can be said that the Lange test is satisfied, and the section does not impermissibly burden the implied freedom of communication of political ideas.
Therefore, Monis used the postal service or any other similar service in such a way that it cannot be regarded as offensive by the reasonable persons in all kinds of circumstances, so no offense is committed by that person.
The claim of Monis claimed that he should not be punished for this as it would be an injustice because section 417.12 is violating the implied constitutional freedom of political communication is accepted, and he is not held guilty.
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Appleby, Gabrielle and Ngaire Naffine, "Civility, Gender And The Law: Critical Reflections On The Judgments In Monis V The Queen" (2015) 24 Griffith Law Review
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Lai, Jessica C, "Gene-Related Inventions In Europe: Purpose- Vs Function-Bound Protection" (2015) 5 Queen Mary Journal of Intellectual Property
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Mathy, Robin M., "Cowboys, Sheepherders, And The Man Who Would Be Queen: “I Know” Vs. First-Order Lived Experience" (2008) 37 Arch Sex Behav
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