Coleman v Power

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ.,McHugh J.,GUMMOW,HAYNE JJ.,Kirby J.,Callinan J.,Heydon J.
• Judgment Date: 01 September 2004
• Neutral Citation: [2004] HCA 39,2004-0901 HCA A
• Court: High Court
• Docket Number: B98/2002
• Date: 01 September 2004

[2004] HCA 39

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan AND Heydon JJ

B98/2002

Patrick John Coleman

Appellant

and

Brendan Jason Power & Ors

Respondents

Representation:

W P Lowe with A D R Gibbons for the appellant (instructed by Patricia White & Associates)

G J Gibson QC with P J Davis for the first and second respondents (instructed by Queensland Police Service Solicitor)

P A Keane QC, Solicitor-General of the State of Queensland, with G R Cooper for the third respondent (instructed by Crown Solicitor for the State of Queensland)

D M J Bennett QC, Solicitor-General of the Commonwealth, with R G McHugh and B D O'Donnell intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)

C J Kourakis QC, Solicitor-General for the State of South Australia, with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

Acts Interpretation Act 1954 (Q), ss 9, 14B.

Criminal Code (Q), ss 23(2), 340(b).

Police Powers and Responsibilities Act 1997 (Q), ss 35(1), 38, 120.

Vagrants, Gaming and Other Offences Act 1931 (Q), ss 7(1)(d), 7A(1)(a), 7A(1)(c).

Coleman v Power

Statutes — Acts of Parliament — Interpretation — Meaning of ‘threatening, abusive and insulting words’ under Vagrants, Gaming and Other Offences Act 1931 (Q) (‘ Vagrants Act’), s 7(1)(d) — Where appellant arrested for using insulting words to a person in a public place contrary to s 7(1)(d) — Whether ‘insulting words’ must be reasonably likely to provoke physical retaliation.

Statutes — Acts of Parliament — Interpretation — Whether, if Vagrants Act s 7(1)(d) invalid, appellant's arrest was lawfully authorised by the Police Powers and Responsibilities Act 1997 (Q) (‘ Police Powers Act’), s 35(1) — Whether convictions for obstructing and assaulting police are valid.

Statutes — Acts of Parliament — Construction and interpretation — Relevance of international obligations assumed by the Commonwealth after enactment of State statute — Whether State Acts to be interpreted to be consistent with international law of human rights and fundamental freedoms.

Constitutional law (Cth) — Implied freedom of communication about government or political matters — Whether Vagrants Act, s 7(1)(d) effectively burdened freedom of communication about government or political matters — Whether s 7(1)(d) reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government — Whether s 7(1)(d) invalid to the extent that it penalised persons using insulting words where those words had a political content or purpose and the penalty constituted a burden on the freedom of political communication.

Constitutional law (Cth) — Implied freedom of communication about government or political matters — Whether Police Powers Act, s 35(1) invalid to the extent that it seeks to make lawful the arrest of a person on a charge under Vagrants Act, s 7(1)(d) for uttering insulting words in the course of making statements concerning political and governmental matters.

Words and Phrases — ‘insult’, ‘insulting’, ‘threatening, abusive and insulting words’, ‘to any person’, ‘public place’.

1 Gleeson CJ. The appellant was protesting in Townsville. He was distributing pamphlets which contained charges of corruption against several police officers, including the first respondent. The first respondent approached the appellant and asked to see a pamphlet. The appellant pushed the first respondent, and said loudly: ‘This is Constable Brendan Power, a corrupt police officer’. The magistrate who dealt with the case said that the appellant was not protesting against any laws or government policies, but was conducting a ‘personal campaign related to particular officers of the Townsville Police’. Although there was a dispute as to the precise sequence of events, the prosecution case against the appellant, which was substantially accepted by the magistrate, was that the pushing and the verbal insult were intended to provoke an arrest. They did so.

2 The appellant was convicted of the offence of using insulting words to the first respondent in a public place. The primary issue in the appeal is whether he was rightly convicted. The appellant contends that the legislation creating the offence is invalid, as an unconstitutional restriction on freedom of speech.

3 The first step is to construe the statutory language creating the offence of using insulting words to a person in a public place. In that respect, both the legislative context and the statutory history are important. The Vagrants, Gaming and Other Offences Act 1931 (Q) (‘the Vagrants Act’) created a number of what are sometimes called ‘public order offences’ 1. Legislation of this general kind is familiar in the United Kingdom, in all Australian jurisdictions, and in New Zealand. The immediate context of the expression ‘insulting words’ is s 7 of the Vagrants Act, which provides 2:

‘7 (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–

• (a) sings any obscene song or ballad;

• (b) writes or draws any indecent or obscene word, figure, or representation;

• (c) uses any profane, indecent, or obscene language;

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

• (e) behaves in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner;

shall be liable to a penalty of $100 or to imprisonment for 6 months … .’

4 The words the subject of s 7(1)(d) must be used to, and not merely about, a person, and they must be used in a public place or in circumstances where they could be heard from a public place. Section 7 protects various aspects of public order, ranging from decency to security.

5 There is no reason to doubt that ‘insulting’ has the same meaning in pars (d) and (e). Those two paragraphs deal separately with a subject that had previously been dealt with compendiously, that is to say, insulting words and behaviour. Section 7 of the Vagrants Act replaced s 6 of the Vagrant Act 1851 (Q). That section prohibited the using of threatening, abusive or insulting words or behaviour in any public street, thoroughfare or place with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. The omission of the element relating to a breach of the peace, in the 1931 Act, was plainly deliberate. Furthermore, the 1931 Act, in s 7(1)(e), expanded the kinds of behaviour that were prohibited. It continued to include threatening or insulting behaviour, but it also included, for example, disorderly, indecent, or offensive behaviour, which might involve no threat of a breach of the peace but which was nevertheless regarded by Parliament as contrary to good order.

6 The legislative changes in Queensland in 1931 were similar to changes in New Zealand in 1927. In New Zealand, the Police Offences Act 1884 (NZ) made it an offence to use any threatening, abusive or insulting words or behaviour in any public place within the hearing or in the view of passers by, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. By legislation in 1927, the provision was altered by omitting any reference to a breach of the peace, and by expanding the description of the prohibited conduct to cover behaving in a riotous, offensive, threatening, insulting or disorderly manner, or using threatening, abusive or insulting words, or striking or fighting with any other person.

7 The New Zealand courts, in considering the effect of the 1927 amendments, attached importance to the decision of the legislature to delete the reference to breaches of the peace, and to expand the range of prohibited behaviour. In Police v Christie3, Henry J held that, to support a charge of disorderly behaviour, it was not necessary to show that the conduct of the defendant was such as to provoke a breach of the peace or was calculated to do so. He gave two reasons for this. First, the legislature, when re-enacting the provision, excluded the previous reference to breaches of the peace. Secondly, it added to the proscribed conduct forms of behaviour which may not necessarily lead to a breach or a likely breach of the peace 4. The decision of Henry J was approved by the New Zealand Court of Appeal in Melser v Police5, another case about disorderly behaviour. The considerations which the New Zealand courts took into account in construing their 1927 legislation apply with equal force to the 1931 Queensland legislation.

8 The absence, or elimination, of a requirement concerning breach of the peace is a feature of other legislation on the same topic. Section 59 of the Police Act 1892 (WA) made it an offence to ‘use any threatening, abusive, or insulting words or behaviour in any public or private place, whether calculated to lead to a breach of the peace, or not’. When the Summary Offences Act 1966 (Vic) was enacted, s 17 was expressed in terms substantially the same as s 7 of the Vagrants Act of Queensland. That section replaced ss 26 and 27 of the Police Offences Act 1958 (Vic). Section 26(b) prohibited threatening, abusive and insulting words ‘with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned’. Section 27(b) prohibited threatening, abusive or insulting words without reference to a breach of...