A High Court declaration of inconsistent interpretation?

The Charter gets a mention again in a new case, Ferguson v Walkley [2008] VSC 7, which had to decide whether ‘fuck off you dog cunts’ are ‘insulting words’; saying such things to a person ‘in or near a public place’ is a criminal offence under s. 17(1)(c) of the Summary Offences Act 1966. Interestingly, Harper J dealt with the potential incompatibility of s. 17(1)(c) with the Charter’s right to freedom of expression by reference to the High Court’s decision in Coleman v Power [2004] HCA 39 on a similar provision of the Queensland Vagrancy Act:

By a majority of six (Gleeson CJ and Gummow, Kirby, Hayne, Callinan and Heydon JJ) to one (McHugh J), the High Court held that s.7(1)(d) of the Queensland legislation was valid: it was, so the majority held, reasonably appropriate and adapted to achieving a legitimate end in a manner consistent with the system of representative government enshrined in the Commonwealth Constitution. It doubtless follows that the equivalent provision in the Summary Offences Act can, in the words of s.7(2) of the Charter of Human Rights and Responsibilities, “be demonstrably justified in a free and democratic society based on human dignity, equality and freedom … taking into account all relevant factors”.

I’ll put aside the fascinating question of whether or not there is a direct relationship between the High Court’s constitutional freedom of political communication jurisprudence and the Charter’s s. 15(2) & 7(2). Let’s assume there is. What follows for s.17(1)(c) of the Summary Offences Act 1966?

What’s interesting is that the constitutional question the High Court had to decide in Coleman v Power actually involved two questions, each with different majorities:

  • What is the definition of ‘insulting words’? A majority (Gleeson, McHugh, Callinan & Heydon) held that there is no requirement that the words be likely to provoke violence (i.e. a breach of the peace.)
  • Is criminalising words that aren’t likely to provoke violence a reasonable restriction on freedom of political communication? A majority (McHugh, Kirby, Hayne & Gummow) held that it wasn’t.

If Harper J is right that the High Court’s test translate directly into Charter ones, then this means that there are High Court majority rulings to the effect that the criminal offence of using ‘insulting words’ cannot be interpreted in a way that is compatible with the right to freedom of expression. So, is the High Court the first court to issue a declaration of inconsistent interpretation about a Victorian statutory provision?

(Note: Harper J didn’t state this, but Charter s. 49(2) prevented the Charter from applying in the Victorian case anyway, because the defendant’s charges appeared to have been laid prior to 2007.)

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