Monday, June 10, 2013

A victory for  free speech in Australia

It was unpleasant and foolish speech but clearly within the realm of political comment

IF THE internet put a bunch of cowboys in the saddle, some recent court decisions might have opened the stable doors.

Hero of the hooting and hollering posse is Brett David Starkey, a spammer who is not unrepresentative of a whole bunch of people for whom moderation and manners seem alien concepts.

Starkey sent 88 emails to more than 100 recipients over 46 days calling for the extermination of "left-leaning politicians and their associates".

Directly or through forwarded messages, his emails included assertions that "Australians need to arm themselves against the Labor and Greens parties who are puppets of the trillionaire, criminal global banking families who are conspiring to World Ownership/World Government run by the United Nations".

And: "The Australian Government, elected and staff, are riddled with Rothschild Globalist/Zionists" and that "Humanity has to declare war on all of them and deal with this treasonous filth appropriately".

More seriously in my view, he said former prime minister Kevin Rudd was "a treasonous criminal" who needed to be "jailed or shot" and called for "Labor and Green parties" to be "eliminated from existence".

Such pleasantries earned him 12 months' probation when he appeared in Brisbane Magistrate's Court in December and was convicted of using a carriage service to menace when he sent the emails to 107 people between February and April last year.

However, this week District Court judge Kiernan Dorney overturned the conviction because he was not satisfied the emails were "menacing, harassing or offensive" when applied to the objective "reasonable person" test.

As for "menace" the objective test would imply the receipt of the email would cause apprehension, if not a fear, for the recipient's own safety.

He suggested that the main concern of the recipient might be whether to consign the emails to the "deleted" or the "spam" folder.

Large among the precedents Dorney cited was the split High Court ruling that upheld an appeal by Sheik Man Hafron Monis after he had been charged with using a postal or similar service in a menacing, harassing and offensive way when he sent horrible letters to the families of dead Australian soldiers.

That appeal was upheld because three of the judges agreed that a section of the Criminal Code was inconsistent with the implied constitutional freedom of political communication.


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