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Whatsapp While in the US the courts have ruled that preachers like the Westboro Baptist Church are acting within the law, in Australia a similar group has been charged with obstructing the streets

The Corneloup brothers thought it was their right to invade an Adelaide mall and start preaching their philosophy of Islamophobia and misogyny. But unlike the US, where groups like the Westboro Baptist Church can offend with impunity, they were wrong.

In September 2010, The Street Church, founded by brothers Samuel and Caleb Corneloup, started preaching what they considered to be the Word of God in the middle of the Rundle St Mall, Adelaide's major shopping district. The brothers and a small group of followers armed with megaphones, signs, and placards walked up and down the mall, airing their views on religion, sexuality, gender rights, and equality.

Sean Fewster, the chief court reporter for the Adelaide Advertiser and AdelaideNow.com.au, followed the group’s growing notoriety.

‘Their message was very anti-Muslim, anti-foreigner, anti-woman and anti-gay,’ he says. ‘They were quite fond of shouting at passers-by that they would be going to hell for whatever they were doing at the moment, be it holding hands or wearing Muslim dress. They talked about foreigners being dirty, they talked about unmarried couples being sinners.’

There is no constitutional right to free speech in Australia, but over the years our courts have developed what's referred to as an implied right to political communication. It was this concept that was at the heart of the High Court case involving the Corneloup brothers.

Shopkeepers and the general public moved quickly to ask Adelaide City Council to evict the fire and brimstone preachers from Rundle St Mall. Police officers tried to break up the Friday night prayer meetings but the preachers would often refuse to go.

Eventually the Adelaide City Council used by-laws, in existence since 2004, that prevent a person from preaching, haranguing, or otherwise tending ministry without first obtaining a permit. The Corneloup brothers decided to challenge these by-laws—a case which went all the way to the High Court of Australia.

Mr Fewster says the pair were self-represented. ‘Caleb Corneloup did the majority of the speaking. He was fond of saying that he had only a Year Nine education and yet he was beating QCs at their own game, which he viewed as God taking mercy upon Adelaide by allowing the preachers to continue to spread his word.’

But his luck ran out when the High Court last week ruled against The Street Church. The court stated that even though the council by-law restricted free speech, the council was exercising its powers properly in creating that by-law for public order.

Professor Adrienne Stone, the director of the Centre for Comparative Constitutional Law at the University of Melbourne, puts it this way: ‘The purpose of this law was to prevent obstruction—to protect the safe and convenient use of the streets, in this case the Adelaide Mall. And the judges took the view that this is a reasonable and legitimate reason to limit freedom of political communication.’

Last week the High Court ruled on another important freedom of speech case that also involved a potent mix of religion and politics—and shows the relative weakness of the implied common law right to political communication in Australia compared to other jurisdictions like the US.

Radical Muslim cleric, Sheik Man Haron Monis, wrote offensive letters to the families of Australian soldiers who died in Afghanistan. The letters started with condolences for the loss of a son, including phrases like 'May God grant you patience and to guide us all on the right path.' But they then went on to brand dead soldiers as murderers of civilians, comparing them to pigs and to Hitler.

Sheik Monis was charged under a provision of the Commonwealth criminal code which makes it an offence to use the postal service in a way that is offensive, harassing, or menacing. Sheik Monis responded by arguing that the prosecution could not proceed because the laws impinged on his implied right to political communication.

But unlike the Adelaide case, the result was somewhat inconclusive, because the court split evenly down the middle. Normally there are seven judges, but during the window in which these cases were heard, a judge had retired without yet being replaced.

All six judges accepted that the letters amounted to political communication, because the letters discussed Australia’s military involvement in Afghanistan. But the court split 3–3 on whether or not the offences were a reasonable limit on the right to political communication.

Three judges—Chief Justice French, and Justices Hayne and Heydon— took the view this wasn't a reasonable limitation, finding that the prevention of offence is not a legitimate end to which the parliament can direct laws. Justice Hayne said: ‘History, not only recent history, teaches us that abuse and invective are an inevitable part of political discourse.’

Professor Stone says these three judges feel strongly that political communication in Australia should be robust and vigorous, ‘to the point that it may be offensive, even very offensive, but that just is our tradition—offensiveness (by itself) can never be a good enough reason to regulate freedom of political communication.’

But Justices Crennan, Kiefel and Bell took the opposite line. They found that the threshold for offence in the postal law is suitably high. It doesn't apply just to the merely offensive, only to the very offensive material. They also found that because the letter was delivered to the house of the victim, this amounted to an intrusion into a private space. In their view, it is legitimate for the parliament to pass a law that seeks to prevent us from receiving extremely insulting material through the mail into our homes.

Because the court split down the middle, the decision of the lower court allowing the prosecutions against Sheik Monis stands. His trial will proceed.

So where do these important freedom of expression cases leave us? Professor Stone says it's now clear that laws designed to prevent the obstruction of traffic and the safe and convenient use of the roads are constitutional. A law that pursues those sorts of goals can limit freedom of political communication, as long as it limits it in a reasonably proportionate kind of a way.

‘What is much less clear is a law whose very object is to prevent offence, even very severe offence,’ Professor Stone says. ‘On that question in the Monis case you see that the High Court was divided right down the middle.’

If these two cases had been heard by the US Supreme Court it is almost certain that the Corneloup brothers and Sheik Monis would have won. In 2011 there was a decision with clear parallels to the two Australian cases. The court upheld the right of the Westboro Baptist Church to demonstrate outside the funerals of US soldiers killed in Afghanistan and Iraq. The church believes that the US's tolerance of homosexuals angered God and in response He allowed US soldiers to die on the battlefield.

Mr Snyder, the father of a dead soldier, commenced a legal action arguing that the interruption of his son’s funeral caused him emotional distress. He won $5 million in damages but the US Supreme Court overturned this ruling.

Professor Stone says in the US speech is almost invariably protected. The First Amendment, the right to free speech, shows a very high degree of tolerance for even the most offensive kinds of speech.

‘Although the United States Supreme Court was absolutely clear it thought that this was terrible and worthless expression, it nonetheless protected it as freedom of speech on a public matter in a public place,’ she says.

Back in Australia it is unclear how the law will evolve when faced with highly offensive speech. Professor Stone says the Monis decision leaves us ‘on a knife's edge’. Since the case two new judges have been appointed to the High Court and there is no way of knowing on what side of the line they would fall.

Until next time.

Listen to the full report with Damien Carrick on the Law Report.