When an insult is nothing more than even freer speech
September 2, 2004
Police officers can no longer rely on that old fallback, the charge of offensive language, writes Cameron Murphy.
One of the standbys of policing - the charge of using insulting language - has been hemmed in, with the High Court of Australia deciding that what may be insulting language to a police officer may just be the exercise of free speech.
No one deserves or expects to be subjected to insulting remarks, particularly police officers, but with cases of political debate and democratic argument exceptions may be justified, and this latest case is one of those exceptions.
"Offensive language" is one of a number of minor summary offences that are an easy fallback for police when arresting and having someone removed from what they see as a troublesome situation, such as protests and rallies.
Those charged with offensive language are often also charged with resisting arrest and assaulting police, in what is commonly called "the trifecta", so that instead of using valuable resources in fighting crime elsewhere, they are wasted in preparing and prosecuting minor charges that often amount to nothing.
The latest decision by the High Court will make it harder for police to rely on this traditional standby when dealing with political activism.
In the future, police will be forced to judge whether an action is fundamentally about political communication and discourse, or not. If it is, then they may no longer be able to rely on "the trifecta" to arrest people and stop the protest.
In its decision yesterday, the High Court overturned a conviction of Patrick Coleman for insulting police, although other charges for obstructing and assaulting police were upheld.
The details of the incident are as follows. In Townsville, Coleman was mounting a one-man campaign against alleged police corruption by distributing pamphlets naming several police who, in his view, were corrupt. A police officer named in one of the pamphlets approached him and an altercation ensued in which Coleman referred to the police officer as being one of the corrupt officers he was protesting about.
He was charged and initially convicted of using "insulting language" in describing the officer as corrupt. That conviction has been overturned, with the court finding that in this case, the law was inconsistent with principles of freedom of speech in the context of political discourse.
Police must recognise that first, where someone engages in political discourse, he/she should be treated with a higher degree of leniency from the norm.
Second, police officers, in the very nature of their job, need to be able to tolerate difficult situations to a much greater degree than ordinary members of the community could be expected to handle and, third, charges for minor offences such as using insulting language are often nothing more than an exercise in clutching at straws, or an effort to pad out other charges being laid.
When someone is standing on a street corner handing out leaflets and the like, expounding a particular philosophy or promoting a particular point of view, that is clearly political in nature, and is not an ordinary situation, which police need to recognise.
In a democracy, people are entitled to agitate, to push their views and to attempt to convince others of their perspective. This sort of activity is the freedom of speech and right to political discourse is a fundamental pillar of our democratic society. It makes us the strong democracy that we are.
In some cases the political view may be distasteful, repugnant, disagreeable or even offensive and insulting but there is clearly a right to express a political position nevertheless. Police must recognise this, and deal with these situations differently from the norm - even if the political point being made is one that offends them.
Police should also be able to tolerate a much higher degree of insult than the rest of us - after all they are generally highly trained, conscientious and responsible individuals. They hold a position of significant trust in the community and are given special powers.
Accordingly, they are expected to be responsible for their actions, apply reasoned judgement and a great degree of measure in their work. While the language used in some situations may be coarse and colourful, the point at which it becomes offensive depends very much on the person to whom it is directed.
Yesterday's decision sends a clear message that there is a right to freedom of speech in political discourse - that people may, when protesting or engaging in political debate, speak their mind on a particular issue.
It also sends a clear message to police forces around Australia: think carefully before charging people with minor nuisance offences against police officers. You may be held to a much higher standard.
Cameron Murphy is the president of the NSW Council for Civil Liberties Inc.