Provisions of the Act prohibit "protesters" – persons engaging in conduct in furtherance of, or for the purposes of promoting awareness of or support for, "an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue" – from engaging in certain conduct on "business premises" or "business access areas". "Business premises" relevantly comprises "forestry land", which includes land on which "forest operations" are being carried out. "Business access area" is defined as so much of an area of land, outside business premises, as is reasonably necessary to enable access to an entrance to, or to an exit from, business premises. Police officers may direct any person to leave or stay away from "business premises" or "business access areas" in certain circumstances under pain of arrest or criminal penalty.
The plaintiffs, notably former Greens Senator Bob Brown were present in the Lapoinya Forest in North West Tasmania when forest operations were being conducted there. They were arrested and charged with offences under the Act in relation to their conduct in opposing the logging of part of that forest. (The charges against each plaintiff were not later pursued.)
It was not disputed that, but for directions made under the Act, and to the extent permitted by other laws, the plaintiffs would have gone back to the Forest for the purpose of raising public awareness of logging in that forest.
In the High Court, the plaintiffs challenged the validity of provisions of the Act on the basis that the Constitution protects freedom of political communication and that those provisions impermissibly burden that freedom.
A majority of the High Court has today held that the impugned provisions of the Act in respect of forestry land and business access areas relating to forestry land effectively burdened the implied freedom of political communication.
A majority of the Court held that the Act pursued the legitimate purpose of protecting businesses and their operations by ensuring that protesters do not prevent, hinder or obstruct the carrying out of business activities. The Court however held that the burden imposed by the impugned provisions on the implied freedom of political communication was impermissible. The provisions were not reasonably appropriate and adapted, or proportionate, to the pursuit of that purpose in a manner compatible with the maintenance of the system of representative and responsible government that the Constitution requires.
A majority of the Court therefore declared that the impugned provisions were invalid in their operation in respect of forestry land and related business access areas.
In Danny Lim v Regina [2017] NSWDC 231 Judge AC Scotting has quashed the conviction of controversial figure Danny Lim for the summary offence, under the Summary Offences Act 1988 (NSW), of using offensive language (in the form of a placard critiquing Tony Abbott) in or near public place or school.
Lim's case on the appeal was that the conduct in question was not offensive, that the conduct merely involved the use of offensive language - you can read the judgment to see the offensive words - and could thereby not amount to offensive conduct, that the political nature of the appellant’s communication amounted to a reasonable excuse for the conduct and finally that section 4 of the Act was invalid because it burdened the implied freedom of political communication.
The Court stated
Conduct capable of amounting to an offence should be limited to conduct at the high end of the range that could be considered “offensive”. The purpose of section 4 is to protect members of the public from undue disturbance of the use and enjoyment of public places: Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [32] per Gleeson CJ. Section 4 extends to conduct in or near a school. This indicates that part of the purpose of the section is to restrict behaviour that might cause a parent or guardian concern for what their child may be exposed to. As such in assessing whether conduct is offensive, the reaction to it being witnessed by children must be considered.
Where constructional choices are open, a meaning that limits the effect on political communication is to be preferred: Monis at [331]. The legislation should be read as going no further than is necessary to achieve its protective purpose, consistent with its terms, without unduly burdening political communications: Monis at [334].
In Coleman, Gleeson CJ at [14]-[15] said that a Queensland statute prohibiting the use of “threatening, abusive or insulting words” in a public place required more than the language being “merely derogatory” of the person to whom it was addressed. The language needed to be of such a nature that the use of it in a public place was contrary to the contemporary standards of public good order and goes beyond an exercise of freedom to express an opinion on controversial issues.
The reasonable excuse defence involves an evaluative judgement. It is open to conclude that the political nature of a communication could be considered to be a reasonable excuse, in an appropriate case.
The term “reasonable excuse” has been used in many statutes. What is a reasonable excuse depends upon the circumstances of the case and the purpose of the provision to which the defence of reasonable excuse is an exception: Taikato v The Queen[1996] HCA 28; (1996) 186 CLR 454 at 464 per Brennan CJ, Toohey, McHugh and Gummow JJ. A reasonable excuse is no more or less than an excuse that would be accepted by a reasonable person: Taikato at 470.
The onus of proving a reasonable excuse is on the appellant on the balance of probabilities.In analysing the Magistrate’s reasons the Court notes the ex tempore judgment and states
Ultimately, the Magistrate found it to be a very “straightforward case”. She found that the reasonable person would have been offended by the sandwich board because the Impugned word was used by reference to the Prime Minister.
The Magistrate’s reasons did not state the reasons why a reasonable person would have been offended. I interpolate that the Magistrate found that it was the use of the impugned word alone that was offensive.
In both of these respects I am satisfied that the Magistrate fell into error. First, the Magistrate failed to give reasons for her finding as to why the conduct was capable of arousing a significant emotional reaction and was thereby offensive, and second the only available inference is that Magistrate decided that the use of the impugned word was of itself offensive.Accordingly
Having found error, it is now necessary to consider the decision to be made on the basis of the facts and the law as they now stand.
Was the conduct offensive?
The only aspect of the appellant’s conduct that could be considered to be offensive was the use of the impugned word on the front of the sandwich board. The use of the upside down pointed capital “A” on the back of the sandwich board did not create the same logical inference that the use of the impugned word was intended and I am not satisfied beyond reasonable doubt that the reasonable person would read the back of the sandwich board as a reference to the impugned word.
It should be noted that on both the front and back of the sandwich board that the appellant used the apostrophe in the same position as if he was using the word “can’t”. There was nothing that could have been considered to be offensive by the appellant wearing a sandwich board containing a political comment, in the absence of the impugned word, for example if the appellant had used the word “can’t” instead.
At its highest, the prosecution case is that the use of the impugned word was used as derogatory description of the Prime Minister, and it is the use of the impugned word that is offensive. As a matter of law, the impugned word is not necessarily offensive, even when used in a public place: Dalton at 555.
The impugned word is often used as a derogatory term to describe a person of any gender. In this use, it is best described as an expletive, rather than as an intensive or it being used for its literal significance.
Politicians and their views are often subject to criticism in public. This is an essential and accepted part of any democracy. That criticism can often extend to personal denigration or perhaps even ridicule, but still maintain its essential character as political comment. There is no reason to conclude that the Prime Minister, as the leader of the Federal Government should be treated any differently to any other person who holds or seeks political office.
The front of the sandwich board, at the height of the prosecution case, conveyed no more than a reference to the Prime Minister in derogatory terms. It was clear that the description of the Prime Minister was given by reference to disapproval with the policies of the government and or the Prime Minister’s decisions relating to those policies.
The impugned word is now more prevalent in everyday language than it has previously been. It is commonplace in movies and television entertainment, although it is not without restriction in that context. The impugned word is of ancient English origin and featured in Shakespeare’s Hamlet. The prevalence of the impugned word in Australian language is evidence that it is considered less offensive in Australia than other English speaking countries, such as the United States. However, that also appears to be changing as is evidenced from the increase in American entertainment content featuring the impugned word.
References to the impugned word are often included in print media, usually a reference to a direct quote with the “u” or the “un” removed. This treatment of the word does little to alleviate the meaning to be conveyed and is directed more at decorum than avoiding offence that may be caused by the publication of the impugned word.
It was also open to read the front of the sandwich board as a play on words, comparing the similarity in the pronunciation of the word “can’t” and the impugned word. This is particularly demonstrated by the inclusion of the apostrophe in the relevant position. The front of the sandwich board is capable of being construed as being clever or light hearted and thereby removing or reducing the force of the impugned word. It is also capable of being read as the word “can’t”.
I am not satisfied beyond reasonable doubt that a reasonable person considering all of the circumstances of the case would have had a significant emotional reaction such as anger, disgust, resentment or outrage to the appellant’s conduct. Whilst the conduct was inappropriate and in poor taste, I am not satisfied beyond reasonable doubt that it was offensive, or so offensive as to be considered in the high end of the range of what would be considered to be offensive.
Was the offensive conduct any more than the use of offensive language?
The appellant’s second contention was that the appellant’s conduct involved no more than a use of offensive language and was thereby excluded from the offence of offensive conduct, by section 4(2) Summary Offences Act 1988.
The term “use” is defined in the Macquarie Dictionary to “employ for some purpose, to avail oneself of, to expend or consume, or to utter words or speak a language”. The word in section 4(2) is “using” but I do not think that is a significant difference.
Whilst the definition of “use” refers to spoken language, the appellant says that there is no good reason to restrict the meaning of the word to that narrow use in the context of the legislation. In other words, the display of the impugned word on the front of the sandwich board was no more than a use of offensive language. The prosecution case is that what the appellant did was to prepare and wear a sandwich board in a public place that contained offensive language and that the whole of his conduct should be considered to be offensive.
To determine the interpretation of section 4(2) it is necessary to consider it in the context of the statute, bearing in mind the legislative purpose: SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58] per Bathurst CJ.
The offensive language offence in section 4A Summary Offences Act 1988, provides that, “[A] person must not use offensive language in or near, or within hearing from, a public place or school”.
The narrow definition of “use” in this context promotes the purpose of the legislation, to restrict the uttering or speaking of offensive language in public places. The requirement that the offensive language must be used within the hearing of a public place or school supports this interpretation.
The wider definition of “use” of offensive language, such as where it is written, is covered by the offence of offensive conduct. That interpretation is consistent with the limiting employment of the word “merely” in section 4(2).
For these reasons, the word “using” in section 4(2) means speaking or uttering offensive language and the appellant has not made out this contention.
Did the appellant have a reasonable excuse for his conduct?
The Magistrate accepted the only evidence before her that the appellant made and wore the sandwich board for the purpose of making a political comment.
If I am wrong in the conclusion that the appellant’s conduct was offensive, then it is open to balance the right of freedom of political communication with the offensiveness of the appellant’s conduct, to determine if the appellant had a reasonable excuse for his actions.
In the present case, the appellant did not unequivocally use the impugned word. The front of the sandwich board presented a depiction of the word “can’t” that could be read as “cunt”, but it was not the only logical conclusion to draw. The language used was clearly a play on words. If the appellant’s conduct was offensive, contrary to my view, in my view it was only marginally so.
The Magistrate accepted the appellant’s evidence that he did not intend to be offensive by using the words that he did. In my view this is also a relevant consideration.
I am satisfied on the balance of probabilities that in the circumstances of this case that the appellant has demonstrated a reasonable excuse for his actions that in the course of expressing a political comment he published a play on words that was capable of being construed as offensive.
