Case: Brown v Classification Review Board (1998) 82 FCR 225 
Outcome: applied
Gummow and Hayne JJ commented on the applicability of United States cases on First Amendment freedom of speech, although it has been observed that such cases have no direct application to the implied freedom under the Australian Constitution : see, for example, Heerey J in Brown v Classification Review Board (1998) 82 FCR 225 at 242 243. As Gummow and Hayne JJ point out, however, the United States cases are not entirely irrelevant (at [188]): 'The Australian constitutional and legal context is different from that of the United States. The United States decisions about so-called "fighting words" find no direct application here. The United States references to "narrowly limited" definitions of speech which can be proscribed find echoes in the application of well-established principles of statutory construction to the Vagrants Act. Once it is recognised that fundamental rights are not to be cut down save by clear words, it follows that the curtailment of free speech by legislation directed to proscribing particular kinds of utterances in public will often be read as "narrowly limited".' Third, Gummow and Hayne JJ posited that the 'narrowly limited' approach leads to an interpretation which focuses on the effect of the words spoken rather than simply on the words themselves (at [191]): 'Making criminal the use of certain kinds of words to another can be explained only by reference to the effect on, or the reaction of, the person to whom the words are directed.' Fourth, Gummow and Hayne JJ noted that the legislation is to be interpreted in the context of an implied constitutional freedom of communication. The preferred construction should, therefore, be one which is reasonably and appropriately adapted to serve the legitimate public need for order and security ([195] [197]). The last of the three descriptions formed the basis of the Review Board's decision to classify the publications 'RC' in this case. The decision of the Review Board that was the subject of Brown relied upon the same paragraph. Although primarily concerned with the meaning of 'instruct', the Attorney submitted that the approach of the Court in Brown to the construction of that word is instructive for the interpretation in this case of the words 'promote' and 'incite'. In Brown , French J described the phrase 'promote, incite or instruct' as (at 239D): '... a collocation of overlapping meanings. According to the Shorter Oxford English Dictionary , to promote is to further the growth, development, progress or establishment of (anything); to further advance, encourage. To incite, is to urge or spur on; to stir up, instigate, stimulate. To instruct, is relevantly to furnish with knowledge or information; to teach or educate.' In his Honour's opinion, the relevant inquiry for the Board was as follows (at 239F-G): 'Consistently with the principle of freedom of expression recognised by the Code itself, it must appear from the publication in question that it goes beyond the mere provision of information about crime and teaches or educates in matters of crime. Reflecting the theme of promotion or incitement the provision of information on matters of crime will constitute instruction if it appears from the content and context of the article, objectively assessed, as purposive, the relevant purpose being to encourage and equip people with the information to commit crimes. So construed, this provision of the Code in my opinion seeks by reasonable and appropriate means to protect the rule of law which is of the essence of democratic society with representative and responsible government.' Heerey J agreed with French J, stating that (at 242C): '... one is not concerned with the actual effect of the publication. Still less is the actual intent of the author or publisher relevant. The [test] is an objective one.' The Attorney submitted that the Court's endorsement of an objective and purposive approach enables the Board and the Review Board to focus upon the content of the publication. The content of the publication is, after all, the focus of the classification process. A construction of para (c) of Item 1 of the publications table in the Code that requires separate consideration of the effect, likely or actual, of a publication shifts the focus from the content of the publication to a speculative consideration of whether, notwithstanding that its purpose, objectively determined, is to promote or incite crime or violence, the publication has that actual or likely effect. According to the Attorney's submission, the Court's approach in Brown is also consistent with the absence of an express requirement in para (c) that the Board or Review Board examine the effect of a publication. The terms of para (c) can be contrasted with para (a), which requires the publications to deal with the matters described in the paragraph 'in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified'. Similarly, para (b) requires the publication to describe or depict a person who is, or appears to be, a child under 18 'in a way that is likely to cause offence to a reasonable adult'. As Sundberg J stated in Brown (at 257B): 'The absence of such a requirement, when it has been included in pars (a) and (b), is a clear indication that it is not to apply to publications falling within par (c).' The Attorney submitted that, in imposing an 'effect' requirement in paras (a) and (b), the legislature has recognised that while the content specified in those paragraphs may be offensive to some segments of the community, it may not be to others. In that situation, assessing the content in accordance with the standards and sensibilities of reasonable adults will strike an appropriate balance between the general principle that adults should be able to read, hear and see what they want, and the competing community concerns about such matters as drug misuse or addiction, crime, cruelty or violence. By contrast, the Attorney continued, the concern addressed in para (c) is not a matter of general community sensibilities, but relates rather to community safety. The absence of an express requirement to consider the effect of a publication that 'promotes, incites or instructs in matters of crime or violence' can to some degree be explained by the possibility that a publication that has such a purpose, objectively determined, will provoke the commission of the very matter of crime or violence promoted or incited, or in respect of which the reader is instructed. The potential for a publication satisfying the description in para (c) to have such an 'effect' indeed serious consequences is built in to the description of the activities outlawed by the paragraph. The Attorney submitted that in classifying Join the Caravan and Defence of Muslim Lands 'RC', the Review Board considered them as a whole. In accordance with the construction of the paragraph settled upon by the Full Court in Brown, the Review Board found that the objective purpose of both publications was to promote and incite in matters of crime or violence. In particular, the Review Board took the view that the purpose of the publications was to incite actions of the type proscribed in s 101.1 of the Criminal Code . Although the main text of the publications was written before the enactment by the Commonwealth of the terrorism provisions, the Review Board considered that their republication, together with additional material explaining the relevance of the text in modern times, gave the books 'a contemporary relevance and context'. Finally, the Attorney submitted that even if his construction of para (c) of Item 1 of the publications table in the Code were not accepted, and consideration of the effect of a publication was in fact required before a publication could be properly described as promoting or inciting crime or violence, the Review Board clearly undertook such consideration in this case. It noted, for example, that the publisher of Join the Caravan described the book as 'one of the principal inspirations for thousands of Muslims from all over the world to go and fight in Afghanistan'. It considered the book to be 'specific and explicit in its support for and encouragement of fighting against non-believers', and was 'an impassioned plea to Muslims to fight for Allah and engage in acts of violence, specifically in Afghanistan but also elsewhere'. The book Defence of Muslim Lands contained passages which described martyrdom operations and an analysis supporting such operations as legal. The Review Board considered that both publications had the potential to appeal 'to some disenfranchised segments of the community', and were 'designed to encourage people to take up arms and commit specific crimes against non-believers, in the cause of Islam'. In its reply submissions, the applicant referred to the dictionary definitions of the words 'promote' and 'incite'; in the case of the word 'promote' to the meaning: 'to further the growth, development, progress ... encourage.'; and in the case of the word 'incite' to the meaning: 'to urge or spur on; to stir up, instigate, stimulate'. It was submitted that the definitions of the words themselves contain a requirement to look to the effect or likely effect of the action, in this case publications of the books. I reject this submission. There is nothing in the definition of either word which requires one to look to the effect or likely effect of the relevant action. More fundamentally, the terms of para (c) of Item 1 of the Code dealing with those publications which are to be classified 'RC' cannot be construed by reference to para (c) alone, but are to be construed by reference to the context ( CIC Insurance Limited v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ) of the similar mandatory 'RC' classifications, namely, those in paras (a) and (b) as well. The terms of all three paragraphs are set out in [54] above. It is to be noted that both para (a), which includes the words '... in such a way that they offend against the standards of morality, decency', etc, and para (b), which includes the words '... in a way that it is likely to cause offence to a reasonable adult', look at the effect or likely effect of the publication on the reader, in contrast to the terms of para (c), which is no doubt what prompted Sundberg J in Brown (at 256G 257B) to observe: 'The appellants contended that the companion words "promote" and "incite", which it was said involve an intent to bring about the commission of a crime and have the commission of a crime as a likely consequence, mean that those elements are present in the word "instruct". I do not agree. The approach to interpretation identified by the maxim noscitur a sociis (the meaning of a word is affected by its companions) is only to be used when the meaning of word is ambiguous or unclear. See Commissioner of Taxation v Whitehouse [1961] HCA 10 ; (1961) 104 CLR 25 at 31 per Dixon CJ, Fullagar and Kitto JJ and R v Morton (1986) 42 SASR 571 at 575. I do not think "instruct" has either of those qualities. Further, the other publications in the RC classification are defined in terms that look to the effect or likely effect of the publication on the reader. Thus par (a) deals with publications which, for example, describe matters of drug misuse "in such a way that they offend ...". Paragraph (b) deals with publications which describe or depict a minor in a way that is "likely to cause offence" to a reasonable adult. Paragraph (c), by contrast, does not require that the publication have any effect or likely effect on the reader. The absence of such a requirement, when it has been included in pars (a) and (b), is a clear indication that it is not to apply to publications falling within par (c).' Further, and in any event, contrary to the assertion of the applicant referred to in [90] above, the Attorney submitted that the Review Board clearly took the view that the actions described in the books would, if carried out, be intended to advance a religious, if not political or ideological, cause (subs 100.1(1)(b)). It also found that the actions advocated by the books were intended to intimidate the public or a section of the public (subs 100.1(1)(c)), and would, if carried out, cause 'serious harm to a person, serious damage to property, death' or the endangerment of a person's life (subs 100.1(2)). It expressly found that 'the objective purpose' of both books 'was to promote and incite actions of precisely this type'. In circumstances where the activities promoted in the book were intended to cause the harm to which the Review Board referred, there could be no question of them falling within subs 100.1(3). According to the Attorney, construing the absence of a reference to that subsection in the Review Board's reasons as an error of law would be to fall into the error cautioned against by French J in Brown (at 240) , of judicialising the administrative decision-making processes of the Review Board 'by imposing rigorous standards of detailed explanation'. Even if it be correct to say that the Review Board was required to consider whether each book incited or promoted the performance of each element of the crime of engaging in a 'terrorist act' as defined in s 100.1 of the Criminal Code (see the relevant extract in [86] above), a matter not free from argument, in my opinion it did so. In its reasons in relation to each book it referred to the fact that it had regard to s 101.1 of the Criminal Code which provides that 'a person commits an offence if the person engages in a terrorist act'; it set out the elements of the definition of 'terrorist act' in s 100.1 in particular those in paras 101.1(1)(b) and (c) and 101.1(2)(a), (b), (c) and (d). It did not refer to subs 101.1(3) action which is excluded from being a 'terrorist act' no doubt because, in its words, it '... was satisfied that the objective purposes of Join the Caravan/Defence of the Muslim Lands was to promote and incite actions of precisely this type', that is, of the type going to make up the elements of the offence. The fact that the Review Board's conclusion was expressed holistically rather than by reference to each element provides no greater foundation for an allegation of error of law than does the absence of a reference to subs 100.1(3) in the Review Board's reasons. There is, as the Attorney submitted, a danger of the kind warned against by French J in Brown (at 240G), namely, of judicialising the administrative decision-making processes of the Review Board 'by imposing rigorous standards of detailed explanation'. This alleged error also cannot be sustained. This is dealt with at [112] [118], [135] [139] and [145] [147] below. The Attorney's submission is that the question of whether a publication has educational merit is a question of fact for the determination of the Board or Review Board. All that subs 11(b) requires is that the Review Board consider the question. In this case, the Review Board determined that the publications had no discernible educational merit. That conclusion was open to it in respect of both publications. The applicant's characterisation of the adjective 'discernible' as going no further than saying that by reading each book the members of the Review Board did not discern any educational or literary merit, takes the Review Board far enough for the purposes of satisfying subs 11(b). This Court, the Attorney submitted, should only interfere with that conclusion if it was not reasonably open on the material before it: see Brown at 258G per Sundberg J. (2) FAILURE TO TAKE INTO ACCOUNT THE PERSONS OR CLASS OF PERSONS TO OR AMONGST WHOM EACH BOOK IS PUBLISHED OR INTENDED OR LIKELY TO BE PUBLISHED The applicant submitted that the two books in the present case are very different from the Rabelais article under consideration in Brown (albeit that in that case French J found it to be arguable that in some respects the article would fall 'within a broad understanding of political discussion' (at 238E)). In the applicant's submission, Join the Caravan and Defence of the Muslim Lands go to the heart of one of the most profound issues facing the Australian electorate, namely, the nature of the terrorist threat and the degree to which that threat calls for measures which impact upon previously accepted rights and liberties. THE SECOND LIMB OF THE LANGE TEST: IF THE LAW EFFECTIVELY BURDENS FREEDOM OF COMMUNICATION ABOUT GOVERNMENT OR POLITICAL MATTERS, IS THE LAW REASONABLY APPROPRIATE AND ADAPTED TO SERVE A LEGITIMATE END IN A MANNER COMPATIBLE WITH THE SYSTEM OF GOVERNMENT PRESCRIBED BY THE CONSTITUTION ? At the outset, the Attorney submitted that a Full Court of this Court in Brown considered and upheld the validity of the provision challenged in those proceedings: French J at 238E 239A; Heerey J at 246B G and Sundberg J at 258B D. As a result, he submitted I am bound to reject any suggestion that the provision, as construed by that Court, is beyond constitutional power. In the present case, even if one has regard to the related State laws, which give practical significance to the process of classification that takes place under the Commonwealth legislation, the Attorney submitted that no burden is placed on the freedom of communications about government or political matters. The classification scheme affects publications that promote, incite or instruct in matters of violence or crime. Communications of this nature do not fall within the constitutional freedom. As Heerey J said in Brown at 246E: 'All this may be in one sense politics, but the Constitutional freedom of political communications assumes indeed exists to support, foster and protect representative democracy and the rule of law. The advocacy of law breaking falls outside this protection and is antithetical to it ... There is no Constitutional protection for speech which is 'mere advocacy' or abstract teaching of the necessity or propriety of criminal or violent conduct. The reason is simple. Such conduct is not part of the system of representative and responsible government or of the political and democratic process.' In the Attorney's submission, it is ironic that the freedom of political communications is invoked to support the publication of writings of a person whose motto was said to be 'Jihad and the rifle alone. No negotiations, No conferences and No dialogue'. As the motto suggests, the publications do not engage in political communications but advocate the abandonment of political change through speech and non-violent processes. Rather, resort to violence to effect change is advocated. According to the Attorney, in no way can material of this kind be characterised as advancing or facilitating Australia's system of representative government. The Attorney submitted that the challenged provision of the Code is reasonably appropriate and adapted to serve the legitimate end of protecting the community from potentially serious acts of crime and violence. By confining the 'RC' category to publications dealing with subject matters within a limited compass, the Code serves that legitimate end in a manner which is compatible with the system of government prescribed by the Constitution . Each member of the Full Court in Brown made findings to this effect: French J at 238G 239A; Heerey J at 246G and Sundberg J at 258D. In its reply submissions, the applicant repeated that its invalidity submissions in [163] to [184] above only arise if the Court rejects its submissions on the meaning of the words 'promote or incite' and concludes that the Review Board was not required to consider the effect of the publications. Only in those circumstances does the applicant submit that this part of the Code constitutes a burden on the freedom of communication about government or political matters that is not reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the constitutional system of representative government. The applicant did not accept that Brown upheld the constitutional validity of the provision challenged in these proceedings. According to the applicant, Brown considered the validity of the criterion for classification 'to instruct in matters of crime or violence'. The Full Court was not concerned with the constitutional validity of the criterion 'to promote or incite in matters of crime or violence'. This Court is not, therefore, bound by the decision in Brown to reject the submission that the provision is beyond constitutional power. THE FIRST LIMB The applicant accepted that before a law will be held invalid it must effectively burden the freedom of communication about Federal Government and political matters by tending to impair the effective operation of the constitutional system of representative government. According to the applicant, the passage from Heerey J in Brown set out at [180] above has to be read in relation to the facts of Brown. There was not, and could not have been, any suggestion that the Rabelais article was relevant to the political process, for the reasons given by Heerey J at 246C. The applicant submitted that a publication which advocates crime or violence may or may not be a communication about government or political matters. While advocacy of violence may not be part of a system of responsible representative government, an understanding of such advocacy (including for example the motives of those advocating violence and the likelihood of such violence occurring) may well be part of the political process. It gave an example from a different historical context. In September 1951, there was a referendum held in Australia by which the government of the day sought to ban the Communist Party. A voter seeking to understand the central aims and beliefs of communists and of the Communist Party would have been assisted in that understanding by reading The Communist Manifesto, a book which unequivocally advocated violence: 'The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions. Let the ruling classes tremble at a communist revolution. The proletarians have nothing to lose but their chains. They have a world to win. Proletarians of all countries, unite!' I am unable to comprehend how the Code, specifically its classification scheme which restricts publications that promote, incite (or instruct) in matters of violence or crime, accepting for present purposes that that latter matter is to be determined by reference to the purpose or intent of the publication rather than its effect or likely effect, '... impacts or tends to impair the effective operation of the constitutional system of representative and responsible government by impermissibly burdening communications on political or governmental matters': Coleman v Power at [91] per McHugh J. Even if one accepts that there could not be any suggestion that the Rabelais article in Brown was relevant to the political process, what was said by Heerey J at 246E (quoted at [180] above) was equally apposite to the present case. Indeed, despite the best efforts of Senior Counsel for the applicant to make the two publications in the present case relevant to that political process, it is important not to lose sight of what that political process is the effective operation of the constitutional system of representative and responsible government. Communications that promote, incite (or instruct) in matters of violence or crime do not fall within its architecture or framework; they therefore cannot burden or impair it.