Genuine entry.*

One thing I've learnt in my exciting career (Ha!) as a law student is that most people have no idea what they're actually governed by. It can be something as a simple as 'Huh, well I didn't know using an iPod was effectively illegal' (pre-iTMS, anyway). It can be something more disturbing like discovering that if you get given a house, you've got fewer rights in property law than a person who coughs up some money later on.

It can be worse yet, like not understanding the system of government in Australia, or the provisions in the Constitution.

Again and again it's repeated that we don't have a Bill of Rights and what a shame it is.

Others will say, well, there are some rights and that should be enough. Unfortunately, even the 'rights' in the Constitution aren't actually positive rights and only extend so far as to restrict what the parliaments can do.

Our Constitutional rights are minimal. Most people couldn't give a toss that there is a freedom of interstate trade. It's not exactly inspirational. You won't have children growing up quoting section 92.

Freedom of religion? Well, yes, I suppose you could say that. Unfortunately, it is just a restriction, not a 'right'. And what does it consist of? The government's not allowed to establish a religion. I don't think it takes much explanation to see how easily circumvented this is. Providing extra funding (from the Treasury coffers) for religious schools ('cept for them thar crazy Muslims)? That's okay. It's not establishing a religion. It's just helping existing ones along a bit, which is fine.

Ah, sophistry. I know you well.

Free speech? Nah. Sorry. Not here. We've got a dodgy restriction on the government called the 'Implied Freedom of Political Communication', which the High Court decided, in 1992, existed. Note that it's 'political' communication. Not free speech generally. So it's already fairly narrowly construed right from the off.

Alas, since the blissful days of the Mason court, the freedom has been narrowed so much as to be avoided more easily than you can say 'thoughtcrime'. By 1997, the High Court said it was okay to infringe political communication as long as the law is 'reasonably appropriate and adapted' to the legitimate purpose of the law. In practice, unless the government's proposing to shoot people, it's probably going to be upheld. (Even then, it depends on what the Court thinks is reasonable...)

Last year, the High Court handed down its decision on the case Coleman v Power. Coleman, a Queensland law student, had been charged with making 'insulting comments' because he handed out leaflets saying the police were all corrupt, fascist pigs. He argued the laws against insulting words disproportionately burdened political communication.

He won, but not only because Gummow and Hayne read down the sections under which Coleman was charged - rather than declaring them invalid. They implied that insults were important, but not decisive in the case.

McHugh and Kirby made a valiant attempt at arguing that 'political invective' is a long-standing tradition in Australian politics, and is protected as political communication. Kirby in particular objected to Justice Heydon's implicit contention that political communication is only okay if it's done in the manner of an elegant, turn of the century salon.

Callinan displayed his usual paucity of a sense of humour in any case involving the merest whiff of a rude comment, and found in favour of the policeman.

It's an interesting case, not just to see what looks like a more conservative approach to the implied freedom, but also because - as the following excerpts from the transcript indicate - quite entertaining. (Admittedly, I am easily entertained by slightly dry remarks from judges...)

In Coleman:

KIRBY J: Justice McHugh’s photographic memory has ill served him for the first time since I sat here.

McHUGH J: I doubt it.

...

GLEESON CJ: If you are only free to behave reasonably, you do not enjoy much liberty.

...

GLEESON CJ: Now, go back to Justice McHugh’s example about the wife who insults her husband in a hotel abutting a public place in a conversation that has absolutely nothing to do with elections of any kind, does Lange produce the consequence that because the provision is wide enough to embrace an insult offered in relation to a matter that concerns federal elections or referenda, the law against insulting words is struck down and the wife can take the benefit of that?

MR KEANE: The husband can take the benefit of it in that he has not committed an offence.

GLEESON CJ: Yes, well I just turned the example around to lighten it a little bit.

MR KEANE: I thought your Honour was being more than usually devious.

GLEESON CJ: No, I was being politically correct.

...

MR KEANE: Your Honour, can we say a couple of things in response....

The second thing we would say, with the greatest respect, is that the Court should resist the temptation to accept that those who engage in debate of a vigorous kind are not able to make the points they want to make and to make them fairly and fully and compellingly without insulting or abusing or threatening their fellow citizens.

McHUGH J: This is the establishment view.

KIRBY J: It is a rather condescending view of people’s rights.

MR KEANE: Your Honour, the contrary view is an extremely patronising view of the ability of people to put their point.

McHUGH J: Why? Why cannot people in political debate insult each other? It might be said it is almost the stuff of political debate.

...

HAYNE J: But the bite is in the insult, is it not, Mr Solicitor?

MR KEANE: Well, it is the focus of the case quite.

HAYNE J: But it is the bite. The Minister is a head-kicking, branch-stacking fool, might at least, in some circumstances, be thought to be insulting.

...

McHugh frames the scenario nicely:

McHUGH J: This is not a case about this person saying something to this police officer. He would not have a constitutional defence if his case was not that he was communicating to other people. He was in the Townsville Mall handing out leaflets. So he was exercising his freedom of political communication and alleging police officers were corrupt.

MR KEANE: And doing it by saying that - - -

McHUGH J: And, incidentally, insults somebody.

...

GLEESON CJ: The appellant was actually convicted of biting the policeman, was he not, at one stage?

MR GIBSON: That was the evidence upon which the offence of assault was established....

GLEESON CJ: You can bite a policeman, can you?

...

KIRBY J: This was written by a law student.

MR BENNETT: So the evidence suggests, your Honour.

KIRBY J: Goodness gracious.

GLEESON CJ: I think we should be grateful it was not a judge.

*Contents' intelligence not guaranteed. Edited because I bollocksed up the dicta, like the idiot I am.