Muslim activists lose free speech case
2013-02-27 21:46
Canberra - Australia's highest court on Wednesday
narrowly rejected the case of two Muslim activists who argued they had a
constitutional free-speech right to send offensive letters to families of
Australian soldiers killed in Afghanistan.
Iranian-born Man Horan Monis, a Sydney cleric also known
as Sheik Haron, was charged with 12 counts of using a postal service in an
offensive way and one count of using a postal service in a harassing way over
three years until 2009.
Amirah Droudis was charged with aiding and abetting the
offences.
They face potential maximum prison sentences of 26 years
and 16 years respectively if convicted.
The six judges of the High Court split on whether the
charges were compatible with Australians' right to free speech.
When the nation's highest court is tied, an appeal is
dismissed and the lower court decision stands.
That sends the charges to a lower court where they will
be heard on a date to be set.
Monis allegedly wrote letters critical of Australia's
military involvement in Afghanistan and condemning the dead soldiers.
He also allegedly wrote to the mother of an Australian
official killed in a terrorist bomb blast in Jakarta, Indonesia, in 2009 and
blamed Australian government foreign policy for the tragedy.
His lawyer, David Bennett, argued in the High Court last
year that the letters were "purely political”. He argued the charges were
invalid because they infringed on Australians' right to freedom of political
communication.
The Australian Constitution doesn't include an equivalent
of the US First Amendment.
But the High Court has held for decades that the
constitution contains an implied right to free speech because such political
communication is essential to democracy.
This right is not as extensive as that guaranteed by the
US Constitution.
The pair had appealed in the High Court the unanimous
ruling of three judges of the New South Wales state Court of Appeal in December
2011.
"While at one level the letters are critical of the
involvement of the Australian military in Afghanistan, they also refer to the
deceased soldiers in a denigrating and derogatory fashion," their judgment
said.
Legal precedent
Professor Anne Twomey, a Sydney University constitutional
lawyer, said the High Court's tied decision offered little legal precedent on
the extent that offensive speech can be prohibited in Australia.
She said the issues could be tried again in a different
case. Two of the seven judges on the High Court will have changed before the
next such case is heard.
"It's rather unpredictable" how the court would
rule on a similar case, Twomey said. "The area of offensive speech has
always been difficult."
Only six judges heard the case because the seventh,
Justice William Gummow, intended to retire in October last year before the
trial was likely to be completely heard.
One of the judges who would have upheld the appeal on
free speech grounds, Justice John Dyson Haydon, retires in March.
It is a crime under Australian federal law to use a
postal service to communicate a message that "reasonable persons would
regard as being, in all the circumstances, menacing, harassing or offensive”.
Twomey said Monis and Droudis might not have been charged
if the letters had been hand delivered.
Federal authorities have limited criminal jurisdiction in
Australia and relied in this prosecution on their powers over national postal
and electronic communications.
Australia has 1 550 troops in Afghanistan which is the
biggest military contribution to the war of any country outside Nato.
Australia has suffered 39 casualties over the past decade
in Afghanistan and another 249 Australian soldiers have been wounded.
- AP
