The impact of Coleman v. Power on the policing, defence and sentencing of public nuisance cases in Queensland.

• Jurisdiction: Australia
• Author: Walsh, Tamara
• Date: 01 April 2006

[The High Court's decision in Coleman v Power promised to provide the many defendants charged with offensive language, offensive behaviour and public nuisance with a means of contesting their charge. The majority of the Court stated that the purpose of such offences was to maintain public order and to protect the public from harm, and they interpreted the scope of such offences relatively narrowly. Therefore, it was expected that the policing, defence and sentencing of 'offensive' defendants would have changed since Coleman v Power was handed down. To test this assumption, the outcomes of public nuisance cases in Brisbane and Townsville in July 2005 (10 months after Coleman v Power) were compared with those from July 2004 (two months before Coleman v Power). It was found that while more public nuisance defendants were contesting their charge(s), more people were being charged with the offence, that situations leading to a charge did not accord with the standard of seriousness established in Coleman v Power, and that sentencing outcomes were no different. Thus, it appears that Coleman v Power is not being followed at the 'ground level' of policing, defending and sentencing public nuisance cases in Queensland.]

CONTENTS I Introduction II The Decision of the Court in Coleman A Overview B The Purpose of the Offence C The Scope of the Offence D Police and Public Order Offences III Empirical Study A Rationale, Methodology and Hypotheses B Findings regarding the Policing of Public Nuisance 1 The Number of Public Nuisance Charges 2 The Basis for Public Nuisance Charges 3 Offensive Conduct Directed at Police Officers C Findings regarding the Defence of Public Nuisance Charges D Findings Related to the Outcomes of Public Nuisance Prosecutions IV Conclusion I INTRODUCTION

In September 2004, the High Court handed down its decision in Coleman v Power, (1) a case that examined the relationship between insulting language and the implied constitutional freedom of political communication. (2) While it has been argued that the decision is of limited relevance to the constitutional interpretation of the implied freedom, (3) the Court's comments on the scope of 'offensive conduct' promised to provide a ray of hope to community lawyers who are routinely faced with the task of defending 'vulnerable' (4) clients against such charges.

A study conducted by the author in February 2004 and a further study in July 2004 (5) revealed a high number of vulnerable people being charged with offensive language, offensive behaviour and 'public nuisance' in Queensland. (6) Additionally, it was found that many people were being charged with these offences for unavoidable behaviour such as vomiting, trivial behaviour such as arm waving, and conduct commonly considered to fall outside the scope of public nuisance, such as engaging in domestic disputes. (7) Further, around one-third of such charges were for conduct directed at a police officer. (8)

Coleman promised to put an end to this pattern for three reasons, each of which will be further explored in this article. First, a majority of the High Court agreed that the legitimate end which public order offences are intended to achieve is the protection of the public from harms including disorder, violence, intimidation and serious affront. (9) This provides police and magistrates with some guidance on how public order offences should be enforced. Second, a majority of the Court construed the offence of 'insulting words' narrowly. (10) The majority's comments imply that a certain level of seriousness is required before 'offensive' conduct will amount to a criminal offence. Third, several of the judges agreed that public order offences should be applied by the police for the protection of the public rather than as a means of defending themselves against dissention. (11)

On these bases, it would be expected that the policing, defence and sentencing of public nuisance offenders would have changed since the Coleman decision was handed down. To determine whether this was in fact the case, a further study was conducted in July 2005. Through a comparison of the July 2004 and July 2005 studies, it was found that Coleman had had some, albeit limited, impact on the kinds of cases that were prosecuted and on the rate of not guilty pleas, but had not resulted in significant differences in the policing or sentencing of public nuisance in Queensland.

II THE DECISION OF THE COURT IN COLEMAN

A Overview

Patrick Coleman appears to have been well-known to Queensland Police in Townsville. (12) On the occasion at issue in Coleman, he was protesting in a pedestrian mall by holding up placards and distributing pamphlets alleging that certain Townsville police officers were corrupt. Constable Brendan Power approached Coleman and asked for a pamphlet. In response, Coleman announced to passers-by: 'This is Constable Brendan Power, a corrupt police officer'. (13) Constable Power told Coleman that he was under arrest for using insulting language under s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld) (since repealed). (14) Section 7(1) made it an offence to, inter alia, use threatening, abusive or insulting words, or to engage in riotous, violent, disorderly, indecent, offensive, threatening or insulting behaviour.

Coleman argued before the Queensland Court of Appeal, (15) and subsequently the High Court, (16) that s 7(1)(d) placed an unconstitutional restriction on the implied freedom of political communication enshrined in the Constitution. (17) Thomas JA, with whom Davies JA agreed, dismissed the appeal, holding that the offence placed only a slight or incidental burden on the implied freedom. (18) In any case, the majority found the burden was 'reasonably appropriate and adapted' towards the achievement of a 'legitimate end' consistent with the constitutionally prescribed system of representative and responsible government. (19) McMurdo P dissented, arguing that while s 7(1)(d) contributed towards a 'genuine regulatory scheme' aimed at fulfilling a legitimate governmental end, it was too broadly framed to be proportionate to achieving that end. (20) Seemingly in direct response to McMurdo P's comments, the Queensland Parliament repealed s 7 of the Vagrants, Gaming and Other Offences Act 1931 (Qld) and replaced it with the offence of 'public nuisance'. (21) The Vagrants, Gaming and Other Offences Act 1931 (Qld) was subsequently repealed in its entirety by the Summary Offences Act 2005 (Qld). The public nuisance offence now appears in Summary Offences Act 2005 (Qld) s 6. The use of 'insulting words' was not included as an example of legally unacceptable conduct in this revised offence: under Summary Offences Act 2005 (Qld) s 6, language will be considered legally unacceptable only if it was 'offensive, obscene, indecent or abusive'. (22)

Special leave to appeal to the High Court was granted (23) regarding the constitutional validity of s 7(1)(d). The Court in a 6:1 majority concluded that the offence was 'reasonably appropriate and adapted' towards achieving a legitimate end consistent with the constitutionally prescribed system of representative and responsible government. (24) McHugh J dissented on this point, arguing that the offence was framed too widely to be considered 'reasonably appropriate and adapted' to the sufficient standard. (25)

Coleman provides some clarification regarding the definition of political communication, confirming that allegations of corruption against police officers may be considered an example of political communication, (26) and that insults fall within the scope of 'communication'. (27) It further confirms the applicability of the constitutional freedom to state legislation. (28) However, the case's constitutional implications have been dealt with in other articles. (29) The focus of this article is on the potential ramifications of Coleman on the policing, defence and sentencing of offensive behaviour, offensive language and related offences, and whether this potential has been realised in practice.

The relevance of Coleman to public nuisance and similar offences lies in the fact that, in its judgment, the High Court did not confine itself to the 'insulting words' aspect of the offence. On many occasions, the judges spoke generally about s 7, (30) 'offensive language and offensive behaviour', (31) and legislation creating 'public order offences'. (32) Indeed, Gummow and Hayne JJ explicitly stated that a provision such as s 7(1) should not be construed by divorcing the individual elements from the context in which they appear. (33) Thus, the comments by the Court are of continuing relevance to the new public nuisance offence in Queensland as well as to other public order offences throughout Australia.

Three aspects of the judgment have the capacity to impact on the way in which the public nuisance offence and other similar offences are policed, defended and disposed of by the lower courts: the Court's comments on the purpose of the offence; the scope of the offence; and the application of the offence in circumstances where the language or behaviour in question was directed at a police officer. Each of these will be discussed in turn.

B The Purpose of the Offence

In considering the second limb of the Lange test, (34) each of the seven High Court judges proffered examples of possible 'legitimate ends' to which offences such as s 7 might be directed.

Gleeson CJ, McHugh, Kirby, Callinan and Heydon JJ all agreed that the end to which the section was directed was 'public order'. (35) However, the judges differed widely in their definitions of this concept. For example, Callinan and Heydon JJ seemed to equate public order with the maintenance of 'civilised' standards of communication. (36) Heydon J outlined three specific sub-ends associated with public order to which the offence in question might be directed: the prevention of 'provocative statements of an insolent...