Victorian Supreme Court reads down the right to freedom of expression

Magee v Delaney [2012] VSC 407 (11 September 2012) Summary

The Supreme Court of Victoria has recently ruled on the scope of the right to freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic). In this case, Justice Kyrou held that the right to freedom of expression under the Charter is not engaged where the expression involves property damage, or threats of property damage.

Facts

On 2 February 2012, Mr Magee attended a bus shelter outside the law courts on the corner of William and Lonsdale Streets, Melbourne. Armed with a paintbrush and water-soluble paint, he painted over an advertisement displayed in the bus shelter and affixed a "wet paint" sign to it. The cost of rectifying the damage, by washing away the paint, was later quantified as $47.17. Mr Magee was charged with criminal offences relating to the property damage.

Mr Magee had a number of previous findings of guilt for similarly painting over advertisements. In evidence, Mr Magee explained that his conduct was a "simple, non-violent protest against the practice of advertising" and that he intended to "trigger serious public debate about advertising".

In the Supreme Court, Mr Magee argued that his conduct engaged the right to freedom of expression under section 15 of the Charter and that the exercise of that right constituted a "lawful excuse" in respect of the criminal charges. In other words, that his exercise of the right to freedom of expression provided a defence to the criminal conduct.

Decision

Section 15(2) of the Charter provides that "Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria". Ultimately, this case turned on the question of whether Mr Magee's conduct engaged that right.

The respondent argued that the right was not engaged for two reasons. First, because Mr Magee's conduct was incapable of imparting information or ideas within the meaning of section 15(2) of the Charter and, secondly, because the right to freedom of expression did not extend to acts involving violence or property damage, for public policy reasons. Although the court rejected the first proposition, it accepted the second proposition.

In reaching this conclusion the Court drew upon comparative case law which suggested that conduct involving violence, or threats of violence, were not within the right to freedom of expression. By extension, the Court held that the same could be said in respect of acts that constitute criminal damage to property.

By extension, the Court said:

As the Victorian Charter was enacted to underpin and support our free and democratic society and the rule of law, rather than to undermine or fracture them, the [public policy considerations] lead inevitably to the conclusion that s 15(2) does not protect all forms of expressive conduct. It certainly does not protect expression in the form of damage to a third party's property or a threat of such damage.

Although this decided the case, the decision went on to discuss a number of other issues raised by the case.

Discussion

The Court then considered whether, in the alternative and if the right the right to freedom of expression was engaged, was it limited by section 15(3) of the Charter?

Section 15(3) provides that "Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary … to respect the rights and reputation of other persons" and "for the protection of national security, public order, public health or public morality".

The Court held that the phrase "other persons" in section 15(3) extends to the rights of non-natural persons, despite the Charter definition of "person" which means a "human being". Therefore, because Mr Magee's conduct impacted on the property rights of the Council (which owned the bus shelter) and Adshell (the advertising company which displayed the advertising material), the operation of section 15(3) would have limited Mr Magee's right to expression.

Furthermore, the Court said if Mr Magee's right to expression had been engaged, it would have been limited for the protection of "public order" by section 15(3). In Justice Kyrou's view the phrase “ ‘public order’ means, in broad terms, giving effect to rights and obligations that facilitate the proper functioning of the rule of law" including "laws that enable citizens to engage in their personal and business affairs free from unlawful physical interference to their person or property."

Costs

In a subsequent decision, handed down on 13 September 2012, Justice Kyrou ordered Mr Magee to pay the respondent's costs as well as some of the costs incurred by the Attorney-General, who intervened in the proceedings.

Mr Magee resisted the order for costs on a number of bases, including the fact that Mr Magee's appeal had not been wholly unsuccessful (as he established his conduct was capable of imparting information or ideas), the appeal had the result of clarifying some aspects of the Charter, and Mr Magee was funded by legal aid.

Justice Kyrou, however, held that these factors were:

strongly outweighed by the fact that the basic premises upon which the appeal was brought were fundamentally flawed. Put simply, it would have been readily apparent, had careful consideration been given to the wording of the Victorian Charter, that the appeal should not have been brought because it had no realistic prospects of success.

In conclusion, the Court criticised Mr Magee and, by implication, his legal team for what His Honour described as a claim "devoid of merit and [which] lacked proper perspective". Costs were also awarded to the Attorney-General because Mr Magee abandoned one of his grounds of appeal prior to the hearing.

Commentary

In summary, this case stands for the proposition that the right to freedom of expression will not be engaged where conduct involves damage, or threats of damage, to property even if such damage is relatively minor.

This is a narrower interpretation of the right to freedom of expression than previously contemplated. Justice Kyrou's approach is, for example, narrower than the interpretation adopted by the government in its statement of compatibility for the Graffiti Prevention Bill 2007 (Vic), which contemplated that prohibitions against graffiti would limit freedom of expression, albeit in a justifiable way.

The costs order is particularly concerning, as it has the potential to have a substantial chilling effect on the raising of Charter arguments.

The decisions are available online at: http://www.austlii.edu.au/au/cases/vic/VSC/2012/407.html

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2012/419.html

Emma Purdue is a lawyer at Lander & Rogers.