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Chesterman, John --- "The 'Delicate Plant' of Free Speech Needs Water: Coleman v Australia" [2007] AltLawJl 2; (2007) 32(1) Alternative Law Journal 4

  • THE ‘DELICATE PLANT’ OF FREE SPEECH NEEDS WATER: Coleman v Australia
  • THE ‘DELICATE PLANT’ OF FREE SPEECH NEEDS WATER
    Coleman v Australia

    JOHN CHESTERMAN[*]

    In August 2006 the United Nations Human Rights Committee found that, in unduly circumscribing one man’s ability to engage in free speech, Australia had contravened the International Covenant on Civil and Political Rights (ICCPR).[1]

    The case originated before the ‘war on terror’ that has resulted in anti-terrorism legislation which has impacted upon freedom of speech through the re-enactment of sedition laws, outlawing of certain political organisations, and the ban on terror suspects publicly discussing their interrogatio[2].2 The case did not raise any security concerns. Neither did the case arise under defamation laws, whose breadth and uncertain parameters have had a significant impact on freedom of speech, in particular the ability of local community members to criticise property developers and other large corporation[3].3 Nor was the speech in question one that breached obscenity laws or anti-vilification laws. It was simply political.

    The speech was illegal because of a local Townsville by-law that required the speaker to gain permission from the local council before making the speech.[4] Thus the speaker was punished for breaching laws designed to ensure the orderly conduct of life and business in a pedestrian mall.[5]

    In many ways it is the banality of the facts behind the case that enables it to be seen as a litmus test of the extent to which freedom of speech exists in Australia. One author in 2000 described freedom of speech as ‘a delicate plant’[6] and, as the trials of Patrick Coleman show, such a rendering continues to hold true.

    The original case

    The Human Rights Committee decision has its origins back in December 1998 when Patrick Coleman gave a political address in the Flinders Mall in downtown Townsville. The address covered a range of political subjects, including the need for Australia to adopt a bill of rights and the need to increasingly recognise the native title rights of Indigenous Australians. He was charged with breaching a Townsville by-law that prevents anyone from taking ‘part in any public demonstration or any public address … in or upon a pedestrian mall without a permit in writing from the Council’. Coleman had not sought the approval of the Council to make the speech, being of the view that such approval ought not to be necessary. In March the following year a Townsville Magistrate convicted Coleman of breaching the by-law and fined him $300. In August that year, after failing to pay the fine, Coleman delivered another political speech in the mall and was forced to spend five days in prison for failing to pay the earlier fine.[7]

    One of the principal questions raised by Coleman’s case was whether the by-law was valid, given the implied freedom of political communication that the High Court has found to arise out of the electoral provisions of the Constitution.

    One of the leading cases then, as now, on the limits of the implied freedom was the judgment in the defamation action brought by the late New Zealand Prime Minister David Lange against the Australian Broadcasting Corporation. In a joint judgment in that case in 1997 the High Court argued that the Constitution protects ‘that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors’. The High Court went on to state that the freedom was not an unrestricted one, and that it could be limited in certain circumstances by laws that were ‘reasonably appropriate and adapted to achieving [a] legitimate object or end’.[8]

    Another case, concerning animal liberationist Laurie Levy, was decided at the same time as the Lange decision, and gave an indication of the type of law that the High Court thought could restrict the implied freedom. In Levy’s case the High Court ruled that duck-hunting regulations which kept people off wetland reserves were legitimate on safety grounds, even though they prevented Levy from retrieving the dead birds that he wanted to display to the public in a bid to have duck hunting outlawed.[9]

    The original Magistrate did not see how the Lange decision could operate to invalidate the Townsville by-law. Coleman appealed to the Queensland Court of Appeal, where he lost by a 2–1 majority.

    On appeal in Australia

    Two of the three Court of Appeal judges thought that the by-law was a valid encroachment on the implied freedom of political communication.[10] Pincus JA and Jones J took the view that the by-law restricted free speech only in a small part of Townsville — namely the pedestrian mall — and activists like Coleman had many other places in which they could give their orations. But the dissenting judge, Muir J, found that the by-law all but made a mockery of any implied freedom of political communication, given that such a freedom ‘exists only at the whim of the council’.[11]

    When Coleman’s case came before two members of the High Court in 2002, in an application for special leave to appeal, the key issue remained whether the implied freedom of political communication would invalidate the operation of the by-law.

    The High Court, in a nine-minute hearing presided over by Gaudron and Gummow JJ, chose to rely on another part of the by-law in refusing the application. While it was by-law 8(2) that required Council approval before a public address could be given in the mall, by-law 8(1) also stated that ‘This by-law does not apply to the setting up and use of booths for religious, charitable, educational or political purposes’.[12] Coleman’s counsel had drawn on this apparently broad exemption as evidence that the restriction on free speech served no ‘legitimate end’. He commented that Coleman could have set up a booth, for instance ‘a make-shift table milk crate and umbrella’, and he could technically have been exempt from prosecution.[13]

    Rather than viewing the exemption in by-law 8(1) as evidence of the fact that no legitimate purpose was served by by-law 8(2), Gaudron J seized upon the exemption as the prime reason for rejecting Coleman’s application for leave to appeal. As she told his counsel

    Do you not have to come to grips with the fact … that by-law 8(1) does, in fact, provide for political speech, albeit that it requires, as your submissions say, a milk crate and an umbrella? … Do you not have to come to grips with the fact that if he had done that there would have been no restriction at all on speech of the kind protected by the Constitution?[14]

    The curious view taken by Gaudron J was that Coleman could actually have avoided prosecution had he set up a makeshift stall before delivering his address. No doubt Gaudron J was right in suggesting that the by-law could not have been used to prevent Coleman from setting up a stall and handing out pamphlets. But the nature of booths is that people wander by, collect information, and perhaps talk, one to one, with the person staffing the booth. Booths are not places from which public addresses are ordinarily given. Had Coleman set up a booth and then delivered the same speech that he did deliver, he arguably would have been making an address of the kind proscribed by by-law 8(2), which would not have been permitted just because it was delivered from a booth of the kind described in by-law 8(1). This issue was not explored in the application for special leave to appeal.

    Coleman’s failure to convince the High Court to grant his special leave application left him with no other domestic avenues for appeal. All he could do now was to take his claim to Geneva.[15]

    At the Human Rights Committee

    Nearly eight years after the incident in question, Coleman had his first legal victory in August 2006, when the Human Rights Committee found that:

    In the present case, the author made a public address on issues of public interest. On the evidence of the material before the Committee, there was no suggestion that the author’s address was either threatening, unduly disruptive or otherwise likely to jeopardise public order in the mall; indeed, police officers present, rather than seeking to curtail the author’s address, allowed him to proceed while videotaping him. The author delivered his speech without a permit. For this, he was fined and, when he failed to pay the fine, he was held in custody for five days. The Committee considers that the State party’s reaction in response to the author’s conduct was disproportionate and amounted to a restriction of the author’s freedom of speech which was not compatible with article 19 [of the ICCPR].[16]

    Australia argued that the nation could not be held responsible for a breach of article 19. If article 19 had been breached, it suggested, this was the fault of individual police officers, the local council or, at worst, the Queensland government. This argument was given short shrift by the Committee, which found that ‘in light of article 50 of the Covenant, the acts and omissions of constituent political units and their officers are imputable to the State’.[17]

    Australia’s attempt to avoid responsibility for Coleman’s treatment reflected the federal government’s attitude towards implementing its treaty obligations. With no national bill of rights in place, Australia is yet to accept the principle that it is national governments (and national parliaments) that are ultimately responsible for ensuring the protection of those human rights which governments, by ratifying international treaties, have agreed to protect.

    Most countries are able to point to constitutional or legislative bills of rights, which enable them to show how human rights are nationally promulgated and protected (albeit to differing degrees) by domestic law. Without a national bill of rights, Australia is more compromised than most countries when it comes to ensuring that all levels of government abide by international agreements.

    Two Australian jurisdictions — the Australian Capital Territory and Victoria — now have bills of rights which protect freedom of expression.[18]A standard criticism of these sorts of bills of rights is that, as mere Acts of Parliament, they can easily be overridden by the legislatures that enacted them.[19] Even so, it is worth noting that, if local councils in the ACT or in Victoria gazetted a by-law of the kind in question in Townsville, then the by-law would be invalid on the basis that it would be in breach of those jurisdictions’ bills of rights.

    Another point about the Committee’s decision was that it was the jailing of Coleman which seemed to convince them that Australia had breached the Covenant, rather than the simple existence of the law that required speakers to gain permission before making public addresses. The Committee argued:

    Even if a State party may introduce a permit system aiming to strike a balance between an individual’s freedom of speech and the general interest in maintaining public order in a certain area, such a system must not operate in a way that is incompatible with … the Covenant.

    The Committee decision clearly flagged here that the use of a permit system would not itself necessarily constitute a breach of the ICCPR. Indeed, three of the sixteen Committee members went so far as to deliver a separate judgment, in order to spell this out. Members Ando, O’Flaherty and Kälin argued that a permit system allowed ‘authorities to strike a balance, consistent with the Covenant, between freedom of expression and countervailing interests’. But even for them, the jailing of Coleman was disproportionate to the activity in which he had engaged.[20]

    Enforceability

    In finding Australia has breached the ICCPR, the question remains just what will happen now. Coleman’s application to the Human Rights Committee was made under the First Optional Protocol to the ICCPR. In signing this protocol in 1991, Australia recognised that individual complaints could be made to the Human Rights Committee concerning the conduct of Australia. The key problem with the process concerns the outcome, inasmuch as treaty-monitoring decisions are not strictly enforceable.

    That is not to say that Committee decisions do not have an impact. The most famous adverse decision against Australia by the Human Rights Committee concerned the application by gay activist Nick Toonen, who complained that his right to privacy under the ICCPR was breached by the existence of Tasmanian laws criminalising homosexual sex. Despite the fact that such laws had not been enforced for some years, the Director of Public Prosecutions in Tasmania agreed that charges would be laid where there was evidence of a breach of the law. Toonen argued that the mere existence of the laws, which criminalised acts of consensual adult homosexual sex conducted in private, constituted a breach of his Covenant right to privacy. The Human Rights Committee agreed.[21]

    While the Toonen decision, like the decision in Coleman’s application, was not strictly enforceable, it did have repercussions in Australia. The Australian government used the case as the catalyst to introduce legislation to override the Tasmanian laws. Section 4 of the Human Rights (Sexual Conduct) Act 1994 (Cth) provided that ‘Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17’.[22]

    It is unlikely that Coleman’s case will spur the Commonwealth Parliament into overriding the Townsville by-law, which continues to exist to this day.[23] (It is worth remembering that, in a different age and political climate, the Whitlam government sponsored the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975, over-riding the Bjelke-Petersen government’s refusal to amend its racially discriminatory laws). Nor is it likely that the Commonwealth will accede to the more specific demands of the Human Rights Committee, which found that Australia:

    is under an obligation to provide the author with an effective remedy, including quashing of his conviction, restitution of any fine paid by the author pursuant to his conviction, as well as restitution of court expenses paid by him, and compensation for the detention suffered as a result of the violation of his Covenant right.[24]

    Since receiving the favourable verdict, Coleman has sought to have his conviction quashed and to be compensated for his ordeal,[25] but there is no indication that he will be successful in either endeavour.

    Freedom of speech in Australia continues to be the ‘delicate plant’ Michael Chesterman described in 2000.[26] In the years since that characterisation was made, we have witnessed increasing encroachments on freedom of speech. Anti-terrorism measures have curtailed speech in some ways. Anti-vilification measures are now more widespread than they were in 2000, and it appears that threats of defamation suits are now stifling community activism more than in previous times.[27] Coleman’s case raised no concerns about national security, nor did he defame or vilify anyone. Despite his victory at the United Nations, there is no satisfactory resolution to his claim on the horizon. We may have cause to wonder under what circumstances we continue to define a plant as ‘delicate’, and when we might say that it is beginning to wither.[28]


    [*] JOHN CHESTERMAN is a senior lecturer in the department of political science at the University of Melbourne

    © 2007 John Chesterman

    email: jhc@unimelb.edu.au

    [1] Human Rights Committee, Communication No 1157/2003 [Coleman], CCPR/C/87/D/1157/2003, 10 August 2006, <http://www.unhchr.ch/tbs/doc.nsf/0/bb31fe728f09bc5dc12571cd0048757c> at 6 March 2007.

    [2] Criminal Code ss 80.2 and 102.3 (in Schedule to the Criminal Code Act 1995 (Cth)); Australian Security Intelligence Organisation Act 1979 (Cth) s 34ZS

    [3] Brian Walters, Slapping on the Writs: Defamation, Developers and Community Activism (2003).

    [4] Human Rights Committee, above n 1.

    [5] On the topic of freedom of speech in pedestrian malls, see Katharine Gelber, ‘Pedestrian Malls, Local Government and Free Speech Policy in Australia’ (2003) 22(2) Policy and Society: Journal of Public, Foreign and Global Policy 22–49.

    [6] Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000).

    [7] Human Rights Committee, Communication No 1157/2003, paras 2.1 to 2.3, Coleman v Sellars [2000] QCA 465; (2000) 158 FLR 269, 270. Coleman has had many similar charges and court hearings for breaching Townsville by-laws and for resisting arrest in relation to those charges. I wrote about one such hearing in the Townsville Magistrates’ Court in March 2000: see John Chesterman, ‘Mr Coleman is Not Entitled to be an Agitator’ (2000) 25(4) Alternative Law Journal 191–2.

    [8] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 560–2. See also Coleman v Sellars (2000) 158 FLR 271.

    [9] Levy v Victoria [1997] HCA 31. On the nature and extent of the implied freedom, see further: Adrienne Stone, ‘Lange, Levy and the Direction of the Freedom of Political Communication under the Australian Constitution[1998] UNSWLawJl 38; (1998) 21 UNSW Law Journal 117–34; Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374–417.

    [10] For a case note about the appeal, see John Chesterman, ‘Sellars v Coleman: The Limits of Free Speech’ (2001) 36 Australian Journal of Political Science 373–5.

    [11] Coleman v Sellars [2000] QCA 465; (2000) 158 FLR 269, at 273, 277, 282; Sellars v Coleman [2000] QCA 465; [2001] 2 Qd R 565. See also Chesterman, above n 10.

    [12] Transcript of Proceedings, Coleman v Sellars & Anor (High Court, 26 June 2002, B14/2001) <http://www.austlii.edu.au/au/other/hca/transcripts/2001/B14/1.html> at 10 February 2007; Human Rights Committee, above n 1, the first note.

    [13] Transcript of Proceedings, Coleman v Sellars & Anor, above n 12, ‘Appellant’s Summary of Argument’, 5–6.

    [14] Transcript of Proceedings, above n 12.

    [15] In 2004 Coleman did have a victory in the High Court on a different matter. He had been found guilty of using ‘threatening, abusive, or insulting words’ in publicly labelling a policeman ‘a corrupt police officer’. But the High Court overturned that conviction on the basis that the use of the word ‘corrupt’ was not ‘insulting’ under the then existing vagrancy legislation in Queensland. See Coleman v Power [2004] HCA 39. For my note on this case see John Chesterman, ‘What ‘Right’ to Free Speech?’ (2004) 29 Alternative Law Journal 255.

    [16] Human Rights Committee, above n 1, para 7.3.

    [17] Ibid, paras 4.1, 6.2.

    [18] Human Rights Act 2004 (ACT) s 16; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15.

    [19] See, eg, Julie Debeljak, ‘Rights Protection Without Judicial Supremacy: A Review of the Canadian and British Models of Bills of Rights’ [2002] MelbULawRw 17; (2002) 26 Melbourne University Law Review 285–324; Debeljak, ‘The Human Rights Act 2004 (ACT): A Significant, Yet Incomplete, Step Toward the Domestic Protection and Promotion of Human Rights’ (2004) 15 Public Law Review 169–76.

    [20] Human Rights Committee, above n 1, para 7.3, appendix.

    [21] Human Rights Committee, Communication No 488/1992 [Toonen], CCPR/C/50/D/488/1992, 4 April 1994, <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/d22a00bcd1320c9c80256724005e60d5?Opendocument> at 10 February 2007. See Katharine Gelber, ‘Treaties and Intergovernmental Relations in Australia: Political Implications of the Toonen Case’ (1999) 45 Australian Journal of Politics and History 330–46, esp 333.

    [22] See also Gelber, above n 21; Elizabeth Evatt, ‘Reflecting on the Role of International Communications in Implementing Human Rights’ [1999] AUJlHRights 20; (1999) 5(2) Australian Journal of Human Rights 20; Wayne Morgan, ‘Passive/aggressive: the Australian Government’s Responses to Optional Protocol Communications’ (1999) Australian Journal of Human Rights 22.

    [23] Townsville Local Law 39, by-law 8 (2), see <http://www.townsville.qld.gov.au/yourcouncil/local_laws.asp> at 10 February 2007.

    [24] Human Rights Committee, above n 1, para 9.

    [25] ‘Man wants conviction quashed after UN committee finding’, ABC News Online, 11 September 2006 <http://abc.net.au/news/australia/qld/townsville/200609/s1738163.htm> at 10 February 2007.

    [26] Chesterman, above n 6.

    [27] Williams, The Case for an Australian Bill of Rights (2004); Dermot Feenan, ‘Religious Vilification Laws: Quelling Fires of Hatred?’ (2006) 31(3) Alternative Law Journal 153; Walters, above n 3.

    [28] I met Patrick Coleman when I lived in Townsville, and I put him in touch with the QC who represented him in 2002 in his application for special leave to appeal to the High Court. I also offered some preliminary advice to Coleman about his application to the Human Rights Committee after special leave to appeal to the High Court was refused.


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