Criminal law

Word limit: 1250

In Ferguson v Walkley (2008) 17 VR 647, Harper J said (at [1]), "The principles of democratic governance have had difficulty in accommodating laws designed to deal with offensive behaviour - with which I include offensive language."

Later in that same case, Harper J observed (at [5]), "According to Professors Bronitt and McSherry, "criminalising offensive language or conduct has the potential to interfere with the freedom of expression, assembly and association protected by Arts 19, 21 and 22 of the International Covenant on Civil and Political Rights" - and, more relevantly for present purposes - those rights protected by ss 15 and 16 of the Charter of Human Rights and Responsibilities." (citations deleted.)

His Honour was addressing documents that have no direct legislative application in Queensland; nevertheless, the general point he made has substance.

Queensland laws dealing with offensive behaviour were once found in the Vagrants Gaming and Other Offences Act 1931, and can now be found in the Summary Offences Act 2005, particularly at s6. You can find the Summary Offences Act 2005 and commentary in your copy of Carter.

In Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 and Lange v ABC (1997) 189 CLR 520, the High Court found that the Australian Constitution implied certain rights with respect to political speech.

Those cases were about mainstream media publications, but a question arises about the extent to which those ideas extend to less formal methods of conveying ideas that might be thought to have a political dimension.

In Coleman v Power (2004) 220 CLR 1, the High Court considered the effect of the constitutional ideas in Theophanous and Lange on summary offence laws relating to public order. Mr Coleman also litigated related legal issues in Coleman v Kinbacher [2003] QCA 575. (You should not assume that the cases referred to in this question are the only cases on point.)

What limitations, if any, have the High Court and Queensland courts imposed on the power of parliaments to regulate speech where that speech might be thought to be a public order issue, such as speech which s6 of the Summary Offences Act 2005 prohibits? To what extent, if any, has the Queensland Parliament responded after the Coleman decision?

In your answer, you should cite authority for the test to be applied, and describe the content of the test, for deciding whether a provision of the sort exemplified by s6 might or might not be able to be found constitutionally invalid. You should provide examples of cases where this issue has been discussed and determined.

This question does not require you to analyse the broad constitutional thought lying behind the issue of free speech. That is beyond the scope of a course on criminal law. Rather, it requires you, on the basis that the ideas in Theophanous and Lange are accepted, to examine their practical effect on the content of laws such as s6 of the Summary Offences Act 2005.