The Two day County Court trial date in August 2018 has now been vacated because a notice was lodged with the Court that asserts that the sections of the Victorian Racial and Religions Villification Act with which Mr. Cottrell is charged are invalid.
"Question
Is Section 25 and its associated sections of the Racial and Religious Tolerance Act 2001 (Vic) either in its entirety or in its operation invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?"
Media were in attendance in Court but may "truncate" the facts according to their understanding. This "Blog" contains the entire "Notice" as lodged with the Court for those who are interested in more detail.
Mr.Cottrell is not funded by legal aid. Matters which go to the High Court on Constitutional issues frequently incur legal fees around the $120,000 mark. Mr. Cottrell is hoping some funds may be donated towards his costs. You may find more details of that on his Facebook page: https://www.facebook.com/realblaircottrell/?ref=br_rs
IN THE COUNTY COURT OF VICTORIA Court No H10032063
BETWEEN Blair Cottrell Appellant
AND Erin Ross Respondent
NOTICE OF A CONSTITUTIONAL MATTER
1. The Plaintiff gives notice that this proceeding involves a matter under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903 of the Commonwealth.
Question
2. Is Section 25 and its associated sections of the Racial and Religious Tolerance Act 2001 (Vic) either in its entirety or in its operation invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?
3. The Facts showing that the matter is one to which section 78B of the Judiciary Act 1903 applies are set out in the document annexed hereto.
Dated 17th July 2018
To the Registrar
And to the Defendant.
Question
Is Section 25 and its associated sections of the Racial and Religious Tolerance Act 2001 (Vic) either in its entirety or in part or in its operation invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?
Representation
J.Bolton for the Plaintiff
In 2001 the Parliament of Victoria enacted the Racial and Religious Tolerance Act 2001 (Vic) (the Act) the purposes of which reads:
Purposes
The purposes of this Act are--
(a) to promote racial and religious tolerance by prohibiting certain conduct involving the vilification of persons on the ground of race or religious belief or activity;
(b) to provide a means of redress for the victims of racial or religious vilification.
Section 25 of the Act Creates offences.
25 Offence of serious religious vilification
(1) A person (the offender) must not, on the ground of the religious belief or activity of another person or class of persons, intentionally engage in conduct that the offender knows is likely--
(a) to incite hatred against that other person or class of persons; and
(b) to threaten, or incite others to threaten, physical harm towards that other person or class of persons or the property of that other person or class of persons.
Note
Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material.
Penalty: In the case of a body corporate, 300 penalty units;
In any other case, imprisonment for 6 months or 60 penalty units or both.
(2) A person must not, on the ground of the religious belief or activity of another person or class of persons, knowingly engage in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
Note
Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material.
Penalty: In the case of a body corporate, 300 penalty units;
In any other case, imprisonment for 6 months or 60 penalty units or both.
(3) For the purposes of subsections (1) and (2), conduct--
(a) may be constituted by a single occasion or by a number of occasions over a period of time; and
(b) may occur in or outside Victoria.
(4) A prosecution for an offence against subsection (1) or (2) must not be commenced without the written consent of the Director of Public Prosecutions.
26 Incorrect assumption as to race or religious belief or activity
In determining whether a person has committed an offence against section 24 or 25, it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the offence is alleged to have been committed.
Section 3 of the Act defines religious belief and activity:
religious belief or activity means--
(a) holding or not holding a lawful religious belief or view;
(b) engaging in, not engaging in or refusing to engage in a lawful religious activity;
In the Magistrate’s Court The plaintiff was unrepresented and convicted of: INCITE RELIGIOUS CONTEM PT/REVU L/RIDICUL (subject to amendment to include the details of the complaint)
The plaintiff challenges the validity of certain provisions of the Act, and to that end invokes the test for invalidity stated in Lange v Australian BroadcastingCorporation[1] as explained in McCloy v New South Wales[2] and Brown v Tasmania [2017] HCA 4318 October 2017
1 with respect to laws which restrict the freedom of communication about matters of politics and government which is implied in the Constitution.
Background facts
2 The plaintiff etc…(subject to inclusion of a potentially agreed set of facts)
3 In the Second Reading Speech to the Bill which became the Act it was said:
4 (Not iterated here but will be referred to in argument)
Protests and the Act
5 There is a long history of political protest in Australia, including protests concerning the building of mosques and the introduction of Islamic ideological issues, in spaces accessible to the public and in the Plaintiffs case a primary means of bringing issues to the attention of the public and politicians is to use “social media broadly” including to broadcast images, of that region, or council area or location of proposed building sought to be protected and which is said to be threatened.
The Plaintiff is an active political person and has an extensive history of public political activity
6 Historically, protests have been a means of bringing about political and legislative change on political issues. Onsite protests have been a catalyst for political expression
7 Protests have taken place in Australia and Victoria in areas that, at some later time, have had Mosques approved or built
8 Public debate about Islamic ideological issues generally is relevant to both State and federal politics. Public debate about Islamic ideological issues in Victoria has featured prominently in previous State of Victoria and Federal election campaigns.
Some protests have involved robust political statements which may be described as invective or insulting. Protest activity has not included protesters placing themselves so as to render the building of Mosques impossible. Protestors have not prevented equipment being used; locked themselves to a boom gates or vehicles; occupied tree houses; blocked forest roads nor locked themselves onto various devices whilst sitting in trees in order to prevent themselves being removed from the area.
9
The second reading speech says of the Victorian Bill that “its impact on freedom of expression is extremely limited” and “It is not intended target trivial comment, impolite remarks or legitimate discussion”
The Act is said by section 3 to be interested only in lawful religious activity. religious belief or activity means--
(a) holding or not holding a lawful religious belief or view;
(b) engaging in, not engaging in or refusing to engage in a lawful religious activity;
Section 26 of the act states that
In determining whether a person has committed an offence against section 24 or 25, it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the offence is alleged to have been committed.
Section 26 seems to be said to give meaning to the Section with which the Plaintiff was charged and convicted. S25D(2) of the Act that says:
Section 25(2) A person must not, on the ground of the religious belief or activity of another person or class of persons, knowingly engage in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
Uncertainty created by these sections of the Act is an important aspect of the operation and effect of the provisions of the Act. (Brown v Tasmania)
What is correct belief about a religion?
What if the belief is “correct” but is unlawful?
What is an assumption?
What does the alleged class “Muslim” mean?
‘insult and invective’?
Who decides this? A case by case analysis? Herein lies a problem for validity according to majority in Brown’s case
A note about the Coleman case “ a law restricting political communication that is aimed at promoting civility is not compatible with the constitutionally prescribed system of representative and responsible government and is thus precluded by the freedom of political communication” (cited with approval in Brown’s case)
The terms, operation and effect of the RRV Act
Police in Victoria have statutory Powers of arrest and removal which may be utilised with respect to suspected breaches of Religious Villification Offences under the Act
DISCUSSION OF VICTORIAN POLICE POWERS HERE WE WILL LOOK AT DIRECTIONS FOR OFFENCES THAT MAY BE ORDINARILY BE GIVEN IN ORDER TO STOP A SUSPECTED BREACH OF THE ACT by POLITICAL PROTEST IN ORDER TO SHOW instanter POLICE DECISIONS WILL INTERFERE WITH POLITICAL SPEECH. (Brown v Tasmania) to be referred to.
10 The powers of arrest and removal are exercisable only if the police officer "reasonably believes" that it is necessary to do so for specified purposes, which include ensuring the person's attendance at court; the preservation of public order; preventing the continuation or repetition of an offence; or the safety and welfare of the person or members of the public
11 In order to answer the question whether a statute impermissibly burdens the implied freedom of political communication, it is necessary to consider in some detail the operation and effect of the statute[3]. That consideration assumes particular importance in this matter.
12 An obvious feature of the RRV Act is that it reasonably applies only to political activists/protesters. While sections 7 and 8 have specific protections for public and artistic productions and S25D does not, the practical and historical application of similar matters “paedophilia and obscenities” in the arts for instance means s 25D (even without the section 15 protections) will be used for protestors rather than main stream artistic endeavours, academic and political commentary.
13 RRV Act Section 15
14 (1) A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith--
15 (a) in the performance, exhibition or distribution of an artistic work; or
16 (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for--
17 (i) any genuine academic, artistic, religious or scientific purpose; or
18 (ii) any purpose that is in the public interest; or
19 (c) in making or publishing a fair and accurate report of any event or matter of public interest.
20 (2) For the purpose of subsection (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising.
12 Exceptions—private conduct
21 (2) Subsection (1) does not apply in relation to conduct in any circumstances in which the parties to the conduct ought reasonably to expect that it may be heard or seen by someone else.
Without similar protections that occur in sections 11 and 12 Section 25 operates in a discriminatory manner against political protesters.
It impacts on political discourse.
While the Act may have a legitimate objective. (This may be conceded depending on advice of Senior Counsel}
The Burden of free political discourse is too great.
There are other legal remedies already in existence – Incitement to violence laws exist. Early parts of the Act SS 7 and 8 provide adequate non criminal incentives with statutory protective exceptions provided in ss 11 & 12
The Criminalising of political discussion by defining as a crime “incitement” merely to think “bad thoughts” is an un-Constitutional burden.
Another feature is that the definition in the RRV Act refers expressly to subject matters about which protesters may be voicing opinions. Those matters and opinions receive no helpful mention in the Act, the operative provisions of which are addressed to the conduct of protesters with respect to a group regardless of the difficulty of defining the supposedly targeted group or class of person or persons.
S.3. Definitions.
religious belief or activity means--
(a) holding or not holding a lawful religious belief or view;
(b) engaging in, not engaging in or refusing to engage in a lawful religious activity;
In the instant case WHAT (not which) LAWFUL RELIGIOUS BELIEF OR VIEW WAS BEING PROTECTED?
A random search on YouTube on 25th June 2018 under the heading “islamist beheading” gave 143,000 results.
The facts in this case can hardly be said to be adding much grist to the mill.
22 What group is the group, what is the class of person or person that others are said to be incited to seriously dislike?
23 The execution of apostates is sanctioned by all the five dominant streams of Islamic jurisprudence, namely the Hanafi (Sunni), Shafi’i (Sunni), Maliki (Sunni), Hanbali (Sunni) and Ja’fari (Shi’a) legal codes, under which the State may impose the death penalty as a mandatory punishment (‘hudud’) against adult male converts from Islam (‘irtidad’). For adult women, death is proscribed by three of the five Islamic schools.
(A.Zimmerman. The Western Australian Jurist Vol 4 P 85)
24 It may be accepted that political activists will seek to conduct protests concerning Islamic operations, and agencies and authorities which grant approvals and permissions, in the vicinity of those operations and the offices of the agencies.. Protests of this kind are generally known as "onsite protests". It is important, however, to recognise that protests will take different forms and some will occur much closer to operations than others.
25 The principal problem, practically speaking, for both police officers exercising general powers of arrest and disbursal with respect to the RRV Act and protesters is that it will often not be possible to determine the boundaries of The Class or group or what is meant by “serious contempt for, or revulsion or severe ridicule”
26 That problem arises because the terms " serious contempt for, or revulsion or severe ridicule” are inapt for use with respect to political discourse.
27 “serious ridicule”
28 dictionary.cambridge.org/dictionary/english/ridiculeCached
29 ridicule definition: 1. unkind words or actions that make someone or something look stupid: 2. to laugh at someone in an unkind way:
30 So “serious ridicule” is being seriously unkind!”
31 It is a criminal offence to incite serious unkindness! Seriously?
32 The definitions do not provide guidance because it is not possible to distinguish by definition between those political acts which are purportedly made criminal offences and those political acts which are protected by the Constitution and which are repeatedly said by the High Court to include invective and offence.
33 The question simply becomes whether a protestor or person is doing something the local police office thinks should be stopped.
This is a real problem which will impact on protestors and enforcers not knowing what is unlawful –
That this problem will heavily discourage and impact on the exercise of political discourse is additionally recognised in the Act by the requirement that prosecutions must be supervised, authorised by the DPP.
Effectively no person will know until after the DPP has made a decision whether the political acts were deemed unlawful, worthy of prosecution, worthy of preventing at the time, worthy of engaging general police powers to move on or arrest. Only one out of 7 Judges of the High Court was against this invalidating point of view in Browns case.
34 In Browns case … “There can be little doubt that the determination of whether a protester is in an area of forestry land has proved difficult for police officers exercising powers under the Protesters Act. The circumstances surrounding the arrest of Dr Brown are revealing. … The Commissioner explained that the decision was based upon advice received from the Tasmanian Director of Public Prosecutions, who had observed that "it was difficult for police officers to determine whether a person was in a business access area or on business premises". and,
35 “The point to be made is not that prosecutions of charges made under the Protesters Act are unlikely to succeed, if they do proceed. It is that the difficulty associated with identifying the area to which the Protesters Act applies in a given circumstance is likely to result in errors being made except in the clearest of cases. The result will be that some lawful protests will be prevented or discontinued and protesters will be deterred from further protesting. They will be deterred because it will come to be appreciated, if it is not already, that there is a real likelihood that if they are present on land in the vicinity of forest operations they may be subjected to a direction to leave the area and all the effects which flow from such a direction even if there is no basis in law for the direction because the area is not forestry land or a business access area in relation to that land.” and,
36 “The vagueness of the terms "business premises" and "business access area" is also likely to work against a protester in seeking a remedy by means of judicial review of a direction made to leave the area where they were protesting. It is one thing for lawyers advising the government to determine whether it can be proved that a protester was in an area to which the Protesters Act applied. It is another for protesters to have a direction ruled unlawful in time to return to continue their protest. The result will be that protests will be stifled when they should not be.”, and,
37 “The foregoing observations reflect experience of the practical operation of the Protesters Act in relation to forestry land. That the Protesters Act may operate effectively to stifle political communication which it is not the purpose of the Act to stifle is not merely a function of the vagaries of the application of the concepts employed by the legislation to "facts on the ground"; it is a consequence of the design of the Act in its deployment of a possibly mistaken, albeit reasonable, belief of a police officer as the mechanism by which it operates. Protests may be effectively terminated in circumstances where it is not necessary that the protester has, in truth, contravened s 6(1), (2) or (3) of the Protesters Act, where it is not necessary to establish that any offence has been committed by the protester, and where judicial review of the mechanism whereby such a result is brought about is not practically possible before the protest is terminated.
38 In this regard, the directions contemplated by s 11 may be based on a mistaken, albeit reasonable, belief on the part of a police officer that a person has committed, is committing or is about to commit, inter alia, a contravention of s 6(1), (2) or (3) on or in relation to business premises or a business access area. A protester who, in truth, has not committed, is not committing and is not about to commit a contravention of s 6(1), (2) or (3) on or in relation to business premises or a business access area may be directed to leave an area which is not, in truth, business premises or a business access area. In this way, protesters who are not disposed to risk breaching the peace in order to test in court the reasonableness of the police officer's possibly mistaken belief may be moved on by the police, and their protest thereby terminated.”
39 “likely to have significant deterrent effects on protesters. Their effects will extend to protesters undertaking protest activities of a kind and in a place which would not affect forest operations and whose presence would not be excluded by the FMA. Their effects will extend beyond individual protesters to entire groups,”
40 Protesters of this kind will be deterred from being present in the vicinity of forest operations for fear that they may be subject to a direction to leave, with all the consequences which flow from such a direction. They will be deterred from protesting even though the direction may be based upon an erroneous view of where they are situated.
41 The combined effect of the provisions referred to above is immediate. It can bring the protest of an entire group of persons to a halt and its effect will extend over time. Protesters will be deterred from returning to areas around forest operations for days and even months. During this time the operations about which they seek to protest will continue but their voices will not be heard.”
42 “there is nothing to suggest that mistakes will not continue to be made. That circumstance will operate as a significant deterrent. That will occur as a practical matter whether or not a prosecution for an offence is pursued to a successful conclusion and without any occasion for the determination by a court of whether or not the operation of provisions infringes the implied freedom in the circumstances of the case”.
Continuing with direct recital of the majority in Brown’s case
A burden on the freedom?
43 It is necessary to keep firmly in mind that the implied freedom is essential to the maintenance of the system of representative and responsible government for which the Constitution provides. The implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth. It operates as a limit on the exercise of legislative power to impede that freedom of expression. The enquiries posed by Lange are the indispensable means by which a legislative measure which is apt to impede the free flow of political communications may be justified. The first enquiry is whether the freedom is in fact burdened.
44 It is difficult to dispute that the plaintiff in this matter may be taken to have been communicating about matters relating to politics or government. The Victorian State RRV Act in fact burdens the freedom.
45 Where a statute is said to impermissibly burden the freedom, the first enquiry is whether the statute in fact burdens the freedom[4]. The extent of the burden is a matter which falls to be considered in relation to the assessments required by the second limb of Lange[5]. The first enquiry requires consideration as to how the statute affects the freedom generally[6]. It is not answered by reference to the operation of the statute in individual cases, although such evidence may provide useful examples of the statute's practical effect, and therefore of the burden the statute may have on the freedom[7]. This Court has said more than once[8] that the freedom spoken of is not a personal right or freedom. The freedom is better understood as affecting communication on the subjects of politics and government more generally and as effecting a restriction on legislative power which burdens communications on those subjects[9].
46 The circumstances relating to the plaintiff show clearly how the freedom is burdened. The plaintiff’s communications to others with respect to the political issue were silenced and have not been repeated by others since.
47 The other aspect of the Protesters Act to be considered is its discriminatory effect, namely, that it imposes a burden on the freedom solely in relation to protesters. No decision of this Court holds that a law effecting a discriminatory burden is, for that reason alone, invalid and the plaintiffs did not contend for such an approach. Such an approach would seem to be at odds with the questions posed by Lange and, in particular, the second, which involves an enquiry as to whether the burden can be justified.
48 In Australian Capital Television Pty Ltd v The Commonwealth[10] ("ACTV"), Mason CJ held[11] that some provisions of the statute in question were discriminatory because they were weighted in favour of established political parties and against new and independent candidates. His Honour did not say that they were invalid simply because they effected a discriminatory burden. Rather, his Honour held them not to be "justified or legitimate" after considering, and rejecting, arguments about whether the regulatory regime introduced a "level playing field" and whether equality in sharing free broadcasting time was unattainable.
49 A law effecting a discriminatory burden on the freedom does not necessarily effect a greater burden on the freedom. It may effect a discriminatory burden but impose only a slight, or a less than substantial, burden on the freedom. McCloy provides an example of such a law. The provisions of the statute there in question included provisions prohibiting the making or accepting of a political donation by a "prohibited donor", where the definition of "prohibited donor" singled out certain groups, such as property developers. The provisions were not considered to effect a substantial burden on the freedom because their effect was indirect, given that their direct effect was to enhance freedom of political speech generally by levelling the playing field, and there were many other available methods of communicating on matters of politics and government, including influencing politicians to a point of view[12].
50 A discriminatory law does, however, serve to identify the group targeted by a law and informs the assessment of the restrictions imposed by the law upon the ability of those persons to communicate on matters of politics and government. It is this assessment which must be undertaken in order to answer the question whether the freedom is burdened. In the present case the answer is clear. Protesters will be deterred from voicing their protests with respect to forest operations. The freedom is burdened.
The purpose of the RRV Act
51 Once it is concluded that the freedom is burdened by a statute, the true purpose of that statute assumes importance with respect to each of the enquiries which follow, which are directed to whether the burden is justified. The identification of that purpose is to be arrived at by the ordinary processes of construction[13].
52 The plaintiff submits that the purpose and practical operation of 25D and associated provisions of the RRVAct is to "prevent protests that ... relate to 'political, ideological, religious ideology, religious belief or activity, social, cultural or economic issues', which are the key issues to which electors will have regard when choosing their representatives" and to "prevent, hinder or obstruct, or be about to prevent, hinder or obstruct, business activities at the site where private or governmental entities carry on business".
53 For its part, Victoria might state that the purpose of the RRVAct is as stated in the Act:
The Parliament of Victoria therefore enacts as follows:
Part 1—Preliminary
54 1 Purposes
55 The purposes of this Act are--
56 (a) to promote racial and religious tolerance by prohibiting certain conduct involving the vilification of persons on the ground of race or religious belief or activity;
57 (b) to provide a means of redress for the victims of racial or religious vilification.
58
59 The State may assert the objects of the Act are " connected with the advantage of having a settled and orderly economic environment in which to conduct business.
60 The plaintiffs' submissions elide the purpose of the Protesters Act with its operation and effect. In a later submission they recognise that it is the Act's operation in respect of onsite environmental protests which will stultify the effectiveness of protests. It is the measures for which the Act provides, and in particular the powers given to police, which affect the ability of persons to protest. But this is not to deny that those measures are directed to the protections it seeks to achieve.
61 Although protesters are targeted and discriminated against and special measures are directed towards them, it may be seen that the legislation was enacted against a background where protesters, or at least some of them, were perceived to be those persons, or groups, who would cause damage or disrupt economic activities during protests of particular kinds. It is important, however, to be clear about the purpose of the Protesters Act. It is not correctly stated simply as the protection of the interests of business just as it is not the prevention of protests. It is the protection of businesses and their operations, here forest operations, from damage and disruption from protesters who are engaged in particular kinds of protests. This is the mischief to which the statute is directed[14].
The Plaintiff may concede this point with respect to the RRD Act mutatis mutandis
Compatibility
62
63 the manner of achieving the statute's purpose, as well as the purpose itself, must be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
64 2. If "yes" to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
3. If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
A slight burden? Or in terrorem
65 As has been seen, the Protesters Act may operate to stifle political communication on the mistaken, albeit reasonable, belief of a police officer as to the effect of protest activity … and where that question may never be determined by a court. … it is in consequence of this overreach of means over ends that the Protesters Act operates more widely than its purpose requires….
66 It may be accepted to be logical to approach the burden which a statute has on the freedom by reference to what protesters could do were it not for the statute.
67 The exercise of general powers activated by a suspected breach of the RRVAct will likely result in persons wrongly being stopped from political protest, moved on and their protests being brought to an end, and them being deterred from further protests in the foreseeable future. In its practical operation the RRVAact indirectly burdens the freedom but it does so to a significant extent. Generally speaking, the sufficiency of the justification required for such a burden should be thought to require some correspondence with the extent of that burden[15].
A compelling justification?
68 The plaintiff submits that because the RRVAct Protesters Act operates by reference to political and ideological and religious protests, it is directed to the content of these political communications and a "compelling justification" is therefore required. As in Brown’s case This submission implies that measures which burden the freedom in this way will require a higher level of justification.
69 In ACTV, Mason CJ expressed[16] the view that laws which "target ideas or information" may require "a compelling justification". His Honour was speaking of a law specifically directed at, and which prohibited, the broadcasting of matters relating to public affairs and political discourse. It effected a direct burden on the freedom. His Honour did not use the words "content-based" with respect to the laws in question. In US jurisprudence concerning the First Amendment that term may refer to a law targeting speech based on its communicative content[17]. Under the doctrine of strict scrutiny such a law is regarded as "presumptively unconstitutional"[18] because it poses "the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information"[19].
70 In the context of the implied freedom and the test in Lange, what Mason CJ said in ACTV might be thought to require more by way of justification only at the balancing stage of proportionality analysis rather than justification operating presumptively at the outset of the analysis under the second limb. The only basis given in Lange for the invalidation of a law at the threshold, which is to say before testing for proportionality, is when a law does not have a legitimate purpose, in other words, where the purpose of the law is not compatible with the maintenance of the scheme of representative and responsible government for which the Constitution provides[20].
71 It should in any event be observed that neither the terms of the Protesters Act nor its purpose seeks to affect the content of the opinion which a protester may seek to voice with respect to forest operations. "Protesters" are defined by reference to those opinions, perhaps unnecessarily, but the Act takes it no further. Its terms, in their operation and effect, are directed to the conduct of protesters.
72 The Plaintiff submits that the RRV Act is substantially different because it does actually seek to affect the content of opinion that is expressed by political speech. The offending section 25D and associated sections specifically refer to the defendant’s belief and the accuracy of it.
S. 26 Incorrect assumption as to race or religious belief or activity
73 In determining whether a person has committed an offence against section 24 or 25, it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the offence is alleged to have been committed.
Who will ever determine what an “assumption” is and what the “incorrectness” is. Even His Honour Justice Edelman. the dissenting minority Judge in Brown’s whose general dissent was that Courts must interprete will have great difficulty interpreting these words without evidence everytime. Leaving the Constitutionally invalidating dilemma of uncertainty and in terroram reluctance to express a politico religious view.
This Victorian RRV Act actually does define what is not allowed to be protested about. That aspect was lacking and a weakness for the Plaintiffs in the Brown case where “neither the terms of the Protesters Act nor its purpose seeks to affect the content of the opinion which a protester may seek to voice with respect to forest operations. "Protesters" are defined by reference to those opinions, perhaps unnecessarily, but the Act takes it no further.”
This Victorian RRV Act actually does define what is not allowed to be politically protested about. It is a worse offender of free political discourse than the Protest Act.
74 The RRVAct specifically refers to “beliefs” as part of the essential nature of the Statute.
A person must not, on the ground of the religious belief or activity of another person or class of persons, knowingly engage in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
75 It is a necessary conclusion that the belief of the political expression is different to that which is being protected by criminalisation of the political act or speech or the defendant would be in the class of protected persons he is said to be vilifying.
S25(2) of the RRV Act makes criminal
…conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of …
In the instant case the alleged class “muslims” is between 1.2 and 1.6 billion people and of such a wide variety of beliefs, some of which manifest in extremely unpleasant or unlawful practises according Australian Law and many different sects claim theirs is the only Islam (Zimmerman above). The class alleged instanter is another example of complete uncertainty. On these facts, not all but some, which? Muslims are the subject person or class of persons said to be targetted by the incitement to further ridicule due to their practice of beheading? Does the protection of “Lawful” religious belief or practice mean in Australian Law?
The RRD Act criminalises the incitement of “thoughts”
“Serious contempt”
dictionary.cambridge.org/dictionary/english/contempt
contempt definition: 1. a strong feeling of disliking and having no respect for someone or something:
So “serious contempt” is a “seriously strong feeling!”
“revulsion”
dictionary.cambridge.org/dictionary/english/revulsionCached
revulsion definition: a strong, often sudden, feeling that something is extremely unpleasant:
Surely beheading, (a regular practice in Muslim countries, with 147 beheadings (or thereabouts) In Saudi Arabia in a 3 month period in 2017 alone). is, in Australian civil society “extremely unpleasant” in and of itself.
“serious ridicule”
dictionary.cambridge.org/dictionary/english/ridiculeCached
ridicule definition: 1. unkind words or actions that make someone or something look stupid: 2. to laugh at someone in an unkind way:
So “serious ridicule” is being seriously unkind!”
It is a criminal offence to incite serious unkindness. Seriously!?
Religious vilification laws are purportedly designed to promote greater tolerance and harmony among the community religious groups. Although these laws aim to develop a more tolerant ‘multicultural’ society, their underpinnings ultimately erode freedom of speech, a cardinal tenet of every truly democratic society.
Indeed, such laws might become a permanent invitation for religious bigots and extremists to silence any criticism of their beliefs, by claiming that they, rather than their radical beliefs, have been attacked. Ironically, the more a religious belief warrants debate and discussion, the more protection such belief appears to receive from this sort of legislation.
It is virtually inconceivable that a prosecution under the RRV Act, even though it defines “religious belief” as “holding or not holding a lawful religious belief or view” would be authorised by the DPP to protect atheists or anti-theists. Or perhaps in today’s world even Christians.
Who would ever be prosecuted in Australia for being “seriously unkind” to Christians or Atheists?
McCloy and proportionality testing
76 Although the purpose of the Protesters Act meets the requirement of compatibility, the measures it adopts to achieve that purpose effect a burden on the freedom and must be further justified[21]. In McCloy, it was suggested[22] that the question posed in Lange[23] whether a measure is reasonably appropriate and adapted, or proportionate, to its purpose might be approached by reference to certain criteria of proportionality. If the criteria were not met, and the answer is in the negative, it would follow that the burden imposed on the freedom is not justified. The means could not be said to meet the requirement of compatibility. The freedom would operate to restrict the exercise of legislative power.
77 … Lange, correctly understood, requires that any effective burden on the freedom must be justified. The first enquiry posed by Lange is whether a burden, or restriction, is imposed on the freedom at all. If it is, the process of justification commences with the question of compatibility of purpose, as mentioned earlier in these reasons[24], and it continues with enquiries as to proportionality.
78 …an argument that only particular degrees of burden warrant justification is inconsistent with Lange.
79 There can be little doubt that the availability of other measures which are just as practicable to achieve a statute's purpose, but which are less restrictive of the freedom, may be decisive of invalidity[25]. In such a case it could hardly be said that the measure which is more restrictive of the freedom is necessary.
80
Connection to purpose
81 …the only purpose of these provisions must be to bring a protest to an end and deter further protests,…
82 It is the prospect that they might offend against that provision which will deter protesters … The question whether … provisions … which burden the freedom … can be justified falls to be determined by whether they can be said to be necessary.
Are the measures reasonably necessary?
83 The question whether a law can be said to be reasonably necessary, in the sense in which that term applies in the context of the freedom, does not involve a free-ranging enquiry as to whether the legislature should have made different policy choices. It involves determining whether there are alternative, reasonably practicable, means of achieving the same object but which have a less restrictive effect on the freedom[26]. Where such alternative measures are obvious and their practicability compelling it may be difficult for those arguing for the validity of the legislation to justify the legislative choice as necessary, as previously explained[27].
84 The Protesters Act operates more widely than its purpose requires. It is principally directed to preventing protesters being present within ill-defined areas in the vicinity of forest operations or access points to those areas, whereas its purpose is similar to that of the FMA.
So too Section 25D and associated provisions operate more widely than the purpose of the RRV Act purposes require.
Section 25D Act seeks to adopt measures which, in their operation and effect in the context of that statute, will have substantial deterrent effects. To an extent those effects are achieved by extending the criminal law to areas of its operation, creating further consequences for non-compliance with the objectives of the Act including special offences and heavy penalties. More importantly they are achieved by the uncertainty which surrounds the objectives within which the Act applies.
85 The concern of the Court is the extent to which the Protesters Act restricts protests more generally. It is likely to deter protest of all kinds and that is too high a cost to the freedom given the limited purpose of the Protesters Act.
US doctrines and Lange
86 These reasons do not invoke the void-for-vagueness doctrine which is part of US constitutional jurisprudence[28]. The plaintiffs make no claim to invalidity on the basis of such a doctrine. Their claim for invalidity is that the provisions of the Protesters Act burden the freedom and cannot be justified by reference to what was held in Lange and further explained in McCloy.
87 Lange requires that a legislative measure which effects any burden on the freedom be assessed not only for its purpose, but for its operation and effect[29]. The ultimate question, whether a legislative measure can be justified as reasonably appropriate and adapted, or proportionate, cannot be answered without determining its operation and effect. The enquiry as to its effect on the freedom generally is necessarily one about its operation and practical effect[30]. Whilst the freedom is not an individual right, the extent of the burden on the freedom is usually ascertained by reference to the effect upon the ability of persons to communicate on the matters the subject of the freedom in various ways, for example by giving political donations which might meet the costs of political communication[31] or, as here, by protesting. It is not to the point that a court might resolve the bounds of the physical area to which the Protesters Act applies in a given case, a question of mixed fact and law. As earlier explained, at this point a burden has already been effected, the protest quelled and future protests deterred.
Such further or other arguments as may be advised to the Plaintiff by Counsel.
88
Conclusion and orders sought
89 The measures adopted by the Religious and Racial Vilification Act (Vic) 2001 which makes criminal and penalises breaches effects a significant burden on the freedom of political communication. That burden has not been justified. The means adopted cannot be considered as compatible, in the sense described in Lange[32].
Question
Is Section 25 and its associated sections of the Racial and Religious Tolerance Act 2001 (Vic) either in its entirety or in its operation invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?
Answer: They are invalid because they impermissibly burden the implied freedom of political communication contrary to the Commonwealth Constitution.
The defendant should pay the plaintiffs' costs.
[1] (1997) 189 CLR 520 at 561-562; [1997] HCA 25.
[2] (2015) 257 CLR 178 at 193-195 [2]; [2015] HCA 34.
[3] Unions NSW v New South Wales (2013) 252 CLR 530 at 553-554 [35]-[36]; [2013] HCA 58.
[4] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567-568; Unions NSW v New South Wales (2013) 252 CLR 530 at 555 [40]; McCloy v New South Wales (2015) 257 CLR 178 at 201 [24].
[5] Unions NSW v New South Wales (2013) 252 CLR 530 at 555 [40].
[6] Unions NSW v New South Wales (2013) 252 CLR 530 at 553 [35].
[7] Wotton v Queensland (2012) 246 CLR 1 at 31 [80]; [2012] HCA 2.
[8] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 150; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 149; [1994] HCA 46; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 327; [1994] HCA 44; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; Wotton v Queensland (2012) 246 CLR 1 at 23-24 [54], 31 [80]; Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at 73-74 [166], 89 [220]; [2013] HCA 3; Monis v The Queen (2013) 249 CLR 92 at 189 [266], 192 [273], 206-207 [324]; [2013] HCA 4; Unions NSW v New South Wales (2013) 252 CLR 530 at 551 [30], 554 [36]; Tajjour v New South Wales (2014) 254 CLR 508 at 569 [104], 593 [198]; [2014] HCA 35; McCloy v New South Wales (2015) 257 CLR 178 at 202-203 [30].
[9] Unions NSW v New South Wales (2013) 252 CLR 530 at 554 [36]; McCloy v New South Wales (2015) 257 CLR 178 at 202-203 [30].
[10] (1992) 177 CLR 106.
[11] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 145-146.
[12] McCloy v New South Wales (2015) 257 CLR 178 at 220-221 [93].
[13] Unions NSW v New South Wales (2013) 252 CLR 530 at 557 [50].
[14] McCloy v New South Wales (2015) 257 CLR 178 at 232 [132] per Gageler J.
[15] Tajjour v New South Wales (2014) 254 CLR 508 at 580 [151] per Gageler J.
[16] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 143.
[17] Reed v Town of Gilbert, Arizona 192 L Ed 2d 236 at 245 (2015).
[18] Reed v Town of Gilbert, Arizona 192 L Ed 2d 236 at 245 (2015).
[19] Turner Broadcasting System Inc v Federal Communications Commission 512 US 622 at 641 (1994).
[20] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567-568.
[21] McCloy v New South Wales (2015) 257 CLR 178 at 213 [68] per French CJ, Kiefel, Bell and Keane JJ, 232 [131] per Gageler J.
[22] McCloy v New South Wales (2015) 257 CLR 178 at 194 [2].
[23] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562.
[24] At [102].
[25] McCloy v New South Wales (2015) 257 CLR 178 at 233 [135] per Gageler J.
[26] Unions NSW v New South Wales (2013) 252 CLR 530 at 556 [44] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.
[27] McCloy v New South Wales (2015) 257 CLR 178 at 211 [58].
[28] See, eg, Kolender v Lawson 461 US 352 (1983).
[29] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567; see also Cunliffe v The Commonwealth (1994) 182 CLR 272 at 337.
[30] Coleman v Power (2004) 220 CLR 1 at 49-50 [91]; Tajjour v New South Wales (2014) 254 CLR 508 at 558 [60], 578-579 [146].
[31] Unions NSW v New South Wales (2013) 252 CLR 530 at 554 [37]-[38].
[32] See [104] above.