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Silencing Lex Wotton: Palm Island riot decision a blow for freedom of speech

When a prisoner has served their time, it’s difficult to understand why they would be stopped from engaging in public debate or communicating with the media. But a new precedent has been set by the High…

The High Court decision against Palm Island rioter, Lex Wotton highlights concerns about how little our constitution does to protect us. AAP Image/Ian Hitchcock

When a prisoner has served their time, it’s difficult to understand why they would be stopped from engaging in public debate or communicating with the media. But a new precedent has been set by the High Court with serious implications for freedom of speech.

The court found against a Palm Island man, Lex Patrick Wotton, who was charged with inciting in a riot on Palm Island following the death in police custody of Mulrunji Doomadgee. He was convicted, and on his release his parole conditions stated he was not allowed to speak to the media and needed to gain permission before he could attend public meetings on Palm Island. Wotton challenged the constitutional validity of the laws underpinning these conditions in the High Court.

This case highlights how limited Australia’s constitutional protection of free speech is, and how restricted our legal rights really are.

Limited protection

Unlike most democratic nations, Australia does not have a charter or bill of rights that guarantees free speech. Instead, the High Court has found a freedom of communication to be implied from the Constitution.

The issue for the court in Wotton then, was whether certain sections of the Queensland Corrective Services Act were invalid in their application to prisoners on parole.

Wotton was convicted of rioting causing destruction and sentenced to six years' imprisonment with a parole eligibility date after two years served. When the board directed Wotton be released on parole, they placed 22 conditions on his release.

These conditions, based on the Queensland Corrective Services Act, prohibited Wotton from attending public meetings on Palm Island without the prior approval of the corrective services officer, as well as from receiving any direct or indirect payment or benefit from the media. It also required that Wotton “not commit an offence”.

Crucially, the Corrective Services Act also makes it an offence for a person to “interview a prisoner, or obtain a written or recorded statement from a prisoner” including a prisoner released on parole, under section 132(1)(a).

Wotton brought proceedings to the High Court challenging the constitutional validity of sections 132(1)(a) and 200(2) of the act, as they apply to prisoners on parole. This second section allows the parole board to place parole conditions ensuring a prisoner’s good conduct and to prevent him re-committing an offence.

This was on the basis that they impermissibly burden the constitutional freedom of communication about government and political matters.

The court’s findings

The High Court unanimously held that ss 132(1)(a) and 200(2) of the act were constitutional. In reaching this conclusion, the court applied the two questions set out in the decision in Lange v Australian Broadcasting Corporation.

First, does the law burden freedom of communication about government or political matters? Second, does the law effectively burden that freedom? That is, is the law reasonably appropriate and adapted to serve a legitimate end (in a matter compatible with the maintenance of the constitutionally prescribed system of government)?

The court answered the first question favourably for Wotton, accepting that the law burdened communication about government and political matters. This was because the public debate of Aboriginal and Indigenous affairs, including perceived or alleged injustices, involves communication about government and political matters at a national level.

This is plainly right, although it does give rise to the issue observed by Justice Heydon in his concurring opinion:

The consideration of each question is “capable of being applied by each particular judge in a different way.” This “tends to lead to sharp divisions of judicial opinion, with cases being decided by the reasoning of a bare majority or by majority agreement on the orders but not the reasoning that leads to them.”

His Honour is correct when he concludes that “none of this tends to certainty.” Nonetheless, the two questions from Lange are now firmly entrenched in the jurisprudence of the implied constitutional freedom of communication about government and political matters, and are unlikely to change.

The court then turned to the second question from Lange, whether the law nevertheless is reasonably appropriate and adapted to serve a legitimate end. It held that the sections were indeed reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government. These ends were community safety and crime prevention through humane containment, supervision and rehabilitation of offenders

That the High Court would unanimously find these provisions constitutional, effectively preventing parolees such as Wotton to speak to the media or the freedom to engage with political issues, should be a matter of concern to those of us who value free speech.

This decision highlights just how weak our constitutional protections for freedom of political expression and association are in this country, and why things need to change to better protect our rights.

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6 Comments sorted by

  1. Under_Exposed

    logged in via Twitter

    It is incorrect to say, as continues to be asserted, that Mr Wotton "appealed against his parole conditions". He did not. He challenged the constitutional validity of the provisions that empowered the Parole Board to impose those conditions. He has not challenged, and the High Court did not determine, whether or not the conditions themselves were a valid exercise of the power conferred on the Parole Board. That exercise, as the High Court pointed out, is itself constrained by the requirement that it comply with the constitutional freedom of political communication. When, and if, Mr Wotton challenges the exercise of the power (and not the power itself) then the question of whether or not those conditions are an appropriate and adapted burden on his freedom of speech can be determined.

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    1. Megan Clement

      Deputy Editor, Politics + Society at The Conversation

      In reply to Under_Exposed

      Thanks for your comment. The text has been amended.

      Best wishes,
      Megan

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  2. Lorna Jarrett

    PhD, science educator and science advocate

    Peter - I think it would be more accurate to say that the riot occurred after the police responsible for yet another death in custody got off scot-free.

    I don't think this is a minor point: it's YET another case of the police closing ranks to protect and exonerate officers who have duty-of-care over Aboriginal people who die - often violently. These deaths are happening at the rate of more than one a month: it is a national disgrace.

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  3. jim morris

    logged in via email @yahoo.com

    Lorna, it would be more accurate to say "another case of the police closing ranks to protect and exonerate officers who have duty-of-care over people who die - often violently". Last night's 4 Corners was a perfect example.
    I know it is easy to get confused about deaths in custody but there is plenty of information to show that non-aboriginal people die in custody at about the same rate as aborigines. It is a national disgrace that all deaths in custody are not treated as being equally tragic.

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    1. Lorna Jarrett

      PhD, science educator and science advocate

      In reply to jim morris

      Jim,

      I don't know about the rate of non-Aboriginal deaths in custody, although I agree deaths in custody are equally disgraceful regardless of race.

      The rate of incarceration of Aborigines compared to non-Aboriginal people, however - as well as the relative triviality of many of their crimes, makes this an issue. Many Aboriginal people die in custody when taken in for being drunk and disorderly - effectively making this a capital offence. How many non-Aboriginal people have been significantly drunk and disorderly - say, sometime in their impetuous youth?

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  4. jim morris

    logged in via email @yahoo.com

    Lorna, it isn't difficult to find out the truth, that deaths in custody are not significantly different between aborigines and other Australians, but the false impression is repeatedly put out to the unwitting public. As in the most recent 4 Corners programme the guy was shot in the back by a police person yelling "taser,taser!" and then the police involved were all given a slap on the bag for doing a great job. most often events like those don't even get reported and if they do are soon forgotten…

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