Is freedom of speech a licence to hate?

Sheik Man Haron Monis. Picture: Stephen Cooper Source: The Daily Telegraph

THREE of Australia's top judges believe a radical Muslim cleric had a legal right to send offensive letters to the families of dead Australian soldiers.

In a major freedom-of-speech case that split the High Court, Chief Justice Robert French, Justice Kenneth Hayne and Justice Dyson Heydon yesterday upheld the appeal of Sheik Man Haron Monis because they agreed a section of the Criminal Code contradicted the constitution.

But Sheik Haron and an alleged helper lost their bid to have a raft of criminal charges thrown out because Justice Susan Crennan, Justice Susan Kiefel and Justice Virginia Bell ruled the opposite and dismissed their appeal.

The 3-3 tie meant the original NSW Court of Criminal Appeal decision was affirmed.

RSL Australia and relatives of the diggers yesterday welcomed the outcome, but suggested the Criminal Code be clarified given the differing legal opinions.

"I certainly welcome the result. They should not be allowed to bypass the justice system," said Felix Sher, who allegedly received letters before his son Private Gregory Sher's funeral in 2009.

Sheik Haron launched the appeal after being charged with 12 counts of using a postal or similar service in a menacing, harassing and offensive way between 2007 and 2009.

His co-accused, Amirah Droudis, also appealed after being charged with eight counts of aiding and abetting.

The appeal was based on their claim that the Criminal Code section was invalid because it was inconsistent with the implied constitutional freedom of political communication.

Letters and a recorded message were allegedly sent to the relatives of Australian soldiers killed in Afghanistan and to the mother of an Austrade official killed in Indonesia, condemning the Diggers.

In his judgement yesterday, Justice French said the question was whether the law exceeded the limit of legislative power and burdened freedom of communication about political matter.

"The answer to the question is in the affirmative," he said, noting that it was not about characterising the alleged conduct, but rather one of legal interpretation.

In his decision, Justice Heydon also upheld the appeal, but said it may demonstrate to some people "how flawed that law is".

But Justice Crennan, Kiefel and Bell ruled the appeals should be dismissed because communications prohibited under the section of law were limited to those only of a "seriously offensive nature".

"This does not suggest an effect upon the freedom which could be regarded as extensive," they said.

RSL Australia NSW president Don Rowe said the government needed to revisit the law because "there is obviously some confusion when the High Court is split like this".

"The law needs to be looked at and changed and to be strengthend so we can protect the good name and integrity of those who have made a supreme sacrifice while serving in our defence forces," he said.