High Court dismisses appeal in 'offensive' letters case
Bianca Hall is immigration correspondent
February 27, 2013 - 11:18AM
A self-styled Muslim cleric accused of sending offensive letters to the families of dead diggers has had his appeal against the charge dismissed by the High Court.
Man Haron Monis, also known as Sheik Haron, and his co-appellant, Amirah Droudis, are accused of sending letters to the widows and family members of several soldiers, referring to the dead men in what one judge described as ''a denigrating and derogatory fashion''.
Their pre-trial application to have the charge that it was a crime to use a postal or similar service in a way that reasonable persons would regard as offensive was dismissed.
The men's lawyers had argued that the material was ''purely political'' in nature, and were therefore protected as political speech.
The High Court decision, published on Wednesday morning, said the co-accused had allegedly sent letters (and in one case a recorded message) to the relatives of Australian soldiers killed in action in Afghanistan and to the mother of an Austrade official killed in Indonesia.
''The communications criticised Australia's military involvement in Afghanistan. They opened with expressions of sympathy for the grieving relatives but then proceeded to criticise and condemn the deceased person,'' the decision read.
The High Court was divided 50-50 on whether the Constitution prohibits the postal service being used to deliver ''seriously offensive material''.
Under the Judiciary Act, when the High Court is equally divided, the decision that is being appealed is upheld.
The High Court was told in October that the letters, which were also sent to various politicians including the Prime Minister and Opposition Leader, contained ''expressions of sympathy'' for the soldiers' families.
But they also included passages including: ''The Australian government represents the Australian nation. The Australian nation has approved the oppressive behaviour of its own government. How? By its silence. Insane people and children are exceptions.''
High Court Judge Dyson Heydon questioned whether passages expressing sympathy could add to the offensiveness of the letters.
''You cannot offer condolences for the loss of someone's son and speak of the dirty body of a pig or say that Hitler was not inferior to them in moral merit,'' he said.
Barrister David Bennett, who appeared for Mr Droudis, told the court in October the letters were ''purely political'' and should therefore be protected as free speech.
''It is putting an extreme view,'' Mr Bennett said. ''It is putting what is no doubt very much a minority view, but it is purely political and it requires considerable imagination to see how that can be regarded as offensive in any way. That, of course, does not matter. If it is offensive it is offensive because the views are offensive, which is exactly what the freedom is designed to protect.''
Chief Justice Robert French in October suggested the letters could be offensive because of their context and the fact they were addressed to military families and relatives of a victim of terrorism.
But Mr Bennett insisted wounding a person's feelings should not invoke a criminal offence.
An unqualified prohibition against being ''offensive'' was not compatible with the implied freedom of political communication, he said.
In its draft anti-discrimination legislation, the federal government had previously proposed changing the definition of discrimination to include treating someone else unfavourably by ''harassing the other person'', or ''other conduct that offends, insults or intimidates the other person''.
Last Thursday parliament's legal and constitutional affairs committee recommended that definition be dumped from the revised legislation.
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