Arcioni, Elisa --- "Politics, Police and Proportionality An Opportunity to Explore the Lange Test: Coleman v Power" [2003] SydLawRw 17; (2003) 25(3) Sydney Law Review 379
[*] BA LLB(Hons I), Associate Lecturer, Faculty of Law, University of Wollongong. Thanks to Edward Muston, Elizabeth Ellis, Ian Farrell and an anonymous referee for their comments and suggestions on a draft of this article.
[1] ‘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 insulting words to any person ... shall be liable to a penalty of $100 or to imprisonment for six months and may, in addition thereto, or in substitution therefore, be required by the court to enter into a recognisance, with or without sureties to be of good behaviour for any period not exceeding 12 months, and, in default of entering into such recognisance forthwith, may be imprisoned for any period not exceeding six months unless such recognisance is sooner entered into.’
[2] ‘Any person: (a) who by words capable of being read either by sight or touch prints any threatening, abusive, or insulting words of or concerning any person by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person’s profession or trade, or by which other persons are likely to be induced to shun, or avoid, or ridicule, or despise the person; or ... (c) who delivers or distributes in any manner whatsoever printed matter containing any such words ... shall be liable to a penalty of $100 or to imprisonment for six months.’
[3] Coleman v Power (Queensland District Court, Pack J, 26 February 2001) at [18].
[4] Coleman’s last (failed) attempt was an application concerning the Queensland Court of Appeal’s decision in Sellars v Coleman [2000] QCA 465; [2001] 2 Qd R 565. Special leave was refused on 26 June 2002.
[5] Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 at 88 (Murphy J); Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 52 (Mason J); Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556 at 581–82 (Murphy J); Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at 100 (Mason CJ, Deane & Gaudron JJ) and 116–17 (Brennan J); Attorney–General v Observer Ltd [1990] AC 109 at 203.
[6] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 (hereinafter Nationwide News); Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 (hereinafter Australian Capital Television).
[7] [1997] HCA 25; (1997) 189 CLR 520.
[8] Id at 567–68.
[9] Compare Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 337 (hereinafter Cunliffe).
[10] Id at 300, 324, 339, 387–88. In this context, there is little difference between the test of ‘reasonably appropriate and adapted’ and the test of proportionality: see at 377, 396.
[11] Roberts v Bass [2002] HCA 57; (2002) 77 ALJR 292 at 304 [66] (Gaudron, McHugh & Gummow JJ) and 323 [162] (Kirby J); Jones v Scully [2002] FCA 1080 at [236]; Coleman v P [2001] QCA 539; (2001) 189 ALR 341 at 342 [3] (McMurdo P) and 354 [45] (Thomas JA with whom Davies JA agreed at 351 [34]); Coleman v Power, above n3 at [22]–[23].
[12] Justice Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47(1) Quadrant 9 at 17; Roberts v Bass, id at 345 [285] (Callinan J) referring to his Honour’s earlier reasons in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 330–332 [338].
[13] ‘Burden’ is defined in the Macquarie Dictionary (3rd ed, 1998 reprint) at 293: ‘1. that which is carried; a load. 2. that which is borne with difficulty ...’; the Oxford English Dictionary (1970) vol I also emphasises the notion of a ‘load’ at 1182.
[14] Roberts v Bass, above n11 at 312 [102] (Gaudron, McHugh & Gummow JJ).
[15] The reasons in Lange would support that conclusion by implying that prohibition would be sufficient. See above n7 at 568: ‘The law of defamation does not contain any rule that prohibits an elector from communicating ... Nevertheless, in so far as the law of defamation requires electors and others to pay damages for the publication of communications ... it effectively burdens the freedom of communication’. [Emphasis added.]
[16] Coleman v P, above n11 at 344–45 [11]–[13] (McMurdo P) and 356–57 [52]–[55] (Thomas JA with whom Davies JA agreed at 351–52 [35]).
[17] Macquarie Dictionary, above n13 at 1106; see also the Oxford English Dictionary (1970) vol V at 361.
[18] Oxford English Dictionary, ibid.
[19] Coleman v P, above n11 at 345 [13] (McMurdo P) and 355 [48], 359 [66] (Thomas JA).
[20] Id at 292.
[21] Id at 300–01 [39]–[42] (Gleeson CJ), 313 [107] (Gaudron, McHugh & Gummow JJ) and 327 [184] (Kirby J).
[22] Id at 325 [171] (Kirby J).
[23] Id at 313 [227] (Hayne J). See also Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 623 (McHugh J).
[24] Compare with Coleman v P, above n11 at 354 [46] (Thomas JA).
[25] Brown v The Members of the Classification Review Board (transcript of special leave application, 11 December 1998). Special leave was refused.
[26] Coleman v Power (transcript of special leave application, 15 November 2002) at 3. [Emphasis added.]
[27] Above n7 at 567.
[28] Id at 561.
[29] Id at 576.
[30] Theophanous v The Herald & Weekly Times Ltd [1994] HCA 46; (1993) 182 CLR 104 at 123 (Mason CJ, Toohey & Gaudron JJ) (hereinafter Theophanous).
[31] Levy v Victoria, above n23 at 638 (Kirby J).
[32] See, for example Nationwide News, above n6 at 46 (Brennan J) and 71–2 (Deane & Toohey JJ); Australian Capital Television, above n6 at 137–8 (Mason CJ) and 227–232 (McHugh J).
[33] Above n7 at 559.
[34] Id at 561. See also Nationwide News, above n6 at 74 (Deane & Toohey JJ).
[35] Nationwide News, id at 48 (Brennan J); Compare at 34 ‘public institutions’ (Mason CJ); Theophanous, above n30 at 124 (Mason CJ & Gaudron J) and 150 (Brennan J); Australian Capital Television, above n6 at 217 (Gaudron J); Cunliff, above n9 at 329 (Brennan J).
[36] Nationwide News, id at 79 (Deane & Toohey JJ).
[37] Above n11 at 312 [102] (Gaudron, McHugh & Gummow JJ).
[38] Attorney–General of New South Wales v Perpetual Trustee Company [1955] AC 457.
[39] Enever v The King [1906] HCA 3; (1906) 3 CLR 969.
[40] Nationwide News, above n6.
[41] Above n30 at 180 (Deane J).
[42] Avel Pty Ltd v Attorney–General for New South Wales (1987) 11 NSWLR 126 at 127 (Kirby P).
[43] Coleman v P, above n11 at 348 (McMurdo P).
[44] Id at 352 [36] (Davies JA). Each of those formulae possibly arising from the Queensland Attorney–General’s submission that the purposes were the ‘regulation of the conduct of persons, the promotion of good behaviour and the prevention of breaches of the peace’: id at 355–56 [51] (Thomas JA).
[45] Above n9 at 300, 324, 339, 387–88, with reference also given to 377, 396.
[46] Nationwide News, above n6 at 76–77 (Deane & Toohey JJ); Id at 299.
[47] Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 126–28 (Gaudron J); Levy v Victoria, above n23 at 619 (Gaudron J).
[48] Mr Maher, Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 27 November 1936 at 1825; See also The Honourable Premier of Queensland W Forgan Smith at 1838–39 quoted in Coleman v P, above n11 at 348–49 [24] (McMurdo P).
[49] Cunliffe, above n9 at 338 referring to Nationwide News, above n6.
[50] Nationwide News, id at 101 (McHugh J).
[51] Id at 53 (Brennan J).
[52] I d at 51 (Brennan J).
[53] Coleman v Power, above n3 at 11 [28] quoting Magistrate Previtera.
[54] Analogous to ‘Hyde Park’: see Levy v Victoria, above n23 at 641–42 (Kirby J).
[55] See Mr Bennett’s suggestion of such a limitation in the special leave application for Brown v The Members of the Classification Review Board, above n25 at 6.
[56] Nationwide News, above n6 at 79 (Deane & Toohey JJ).
[57] ‘Public place’ being defined in s2 of the Vagrants Act to include, relevantly: ‘... every road and also every place of public resort open to or used by the public as of right, and also includes: (a) any vessel, vehicle, building, room, licensed premises, field, ground, park, reserve, garden, wharf, jetty, platform, market, passage or other place for the time being used for a public purpose or open to access by the public, whether on payment or otherwise, or open to access by the public by the express or tacit consent or sufferance of the owner, and whether the same is or is not at all times so open; and (b) a place declared, by regulation, to be a public place ...’
[58] Acts Interpretation Act 1954 (Qld) s9.