Sometimes a powerful visual image is what is needed to shock us into action. But can an image be so powerful and horrifying that it becomes “obscene” and hence unlawful to use in public? That, it seems, is now the view being taken in Victoria of a particular type of image: pictures of unborn babies who have been killed. While the decision of a Victorian court, it may be followed elsewhere in Australia.

Abortion of course is an incredibly difficult topic to discuss. Those who see it as the termination of human lives are determined to get this message across as clearly as possible. Views will differ, as to whether using visual images of terminated unborn children is an appropriate or helpful way of furthering the discussion.But should those who firmly believe that this is one of the only ways to get their message across, be punished by the law for public obscenity? That is the import of the recent decision of a judge of the Victorian Supreme Court, Emerton J, in Fraser v County Court of Victoria & Anor [2017] VSC 83 (21 March 2017).

I discussed the earlier decision of the County Court in these proceedings in a previous paper, “Protection of Religious Free Speech in Australia” (2016), at pp 47-48. I summarised those proceedings as follows:

[Ms Fraser] was standing outside an abortion clinic in Melbourne [and] was displaying a poster that featured pictures of aborted fetuses. She was charged with, and convicted of, “displaying an obscene figure in a public place” contrary to s 17(1)(b) of the Summary Offences Act 1966 (Vic)… [T]he County Court … decided (surprisingly, I think) that something could be “obscene” even if it had no sexual connotations, but was simply “offensive or disgusting” – para [21].

The County Court considered and rejected defences based on freedom of political communication, and freedom of religion. These proceedings before Emerton J were in effect an appeal against the decision of the County Court, though framed in terms of orders for judicial review using writs of certiorari and mandamus. There were two main issues in the litigation- were the pictures “obscene” and, even if so, was a law which prevented them being shown in public too restrictive of political free speech?

A. Were the pictures “obscene”?

I expressed surprise in my earlier comment that in the previous proceedings the County Court had concluded that the word “obscene” could apply to material that had no sexual overtones, but was merely “offensive or disgusting”; see eg the earlier decision at [21]:

In my judgment, the use of the word “obscene” in s17(1)(b) of the Act is not confined, or to be read down, so as to refer only to acts displaying figures of a sexual nature. The word “obscene” where used in the Act relevantly, also includes displays that are offensive or disgusting and that embraces the ordinary and natural meaning of the word.

This view was supported by reference to a dictionary definition of the word. However, the County Court judge, Lacava J, also had to distinguish some fairly clear comments of the highly respected High Court Justice, Windeyer J, who in the case of Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375 had suggested very strongly that “obscene”, where not otherwise defined, always had sexual overtones. See eg his Honour’s comment at p 395:

“… The question still is – Does the publication, by reason of the extent to which and the manner in which it deals with sexual matters, transgress the generally accepted bounds of decency? … .”

With respect, I do not think the judge made a convincing case here that “obscene” can simply be applied to something which is merely “disgusting”. So, for example, Lacava J cited some comments of the High Court in Monis v The Queen [2013] HCA 4 noting at [312] that :

Both “indecent” and “obscene” are words which convey one idea, that of offending against recognised standards of propriety – indecent being at the lower end of the scale and obscene at the upper end.

At first glance this may imply that “obscene” is simply a matter of “standards of propriety” in general, including sexual but also other types of propriety. But some important qualifications are needed. Monis was not a case which needed to define the word “obscene”- it was dealing with the much more amorphous idea of “offensive”. And if there is indeed a specific “scale” on which the word “obscene” is located, according to the High Court here, then the other end of the scale, the word “indecent”, will almost always have a sexual connotation. Hence the “scale” itself may be inherently about sexual material, and this quote from Monis would then support the view that obscenity usually bears a sexual overtone.

(The High Court in the same paragraph did cite the UK decision in R (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185, which is one that connects with the Fraser case as it involved the BBC declining to air images of aborted babies. But that case involved a rule forbidding “offensive” material, and so it is not directly relevant to the question whether such images are “obscene”.)

Emerton J in the Fraser appeal recorded that the appellant did not contest the finding of Lacava J on the “obscenity” of the pictures (see eg paras [8]-[9].) I would have thought, however, that most Australians would be surprised to find that pictures of dead children could be legally classified as “obscene”, however “disgusting” they were.

Later in her decision, at [49], Emerton J accepts a definition of “obscene” which says that it is:

at the highest end of what is disgusting, repugnant, repulsive or offensive, having regard to contemporary community standards. Section 17(1)(b) therefore prohibits the display in or near public places of images that are of the most seriously shocking type.

Again, no convincing authority is offered for what seems like an unusual definition. Her Honour does cite the “New Shorter Oxford Dictionary” for a range of meanings. But if the principal source, the Oxford English Dictionary, is consulted, we read that the first meaning of “obscene” is: “Offensively or grossly indecent, lewd.” It is only when secondary meanings are later given that we reach such general terms as: “Offending against moral principles, repugnant; repulsive, foul, loathsome.” (Even in this second sense, note that the term seems to imply moral guilt in the production of the material, rather than simply being applied to material viewed as shocking.)

In the end the decision that these photographs were “obscene” will stand in these proceedings, but it seems to me that the redefinition of this term might be challenged in the future. It is also hard to resist noting the irony that some decades ago, the “progressive left” were regularly accused of obscenity (for example, the notorious Oz magazine) and complained loudly if convicted of such when exercising free speech. But it seems that what was a shared consensus in society, that the killing of unborn children was a terrible thing which should only be resorted to in extreme cases, has now apparently itself become a “heresy” which cannot be supported by polite society. At least, the grim reality of what this involves cannot be brought home through pictures.

B. Was there a breach of political free speech rights?

The bulk of the decision by Emerton J dealt with the claim that a law which prohibited showing of these pictures in these circumstances was too great a restriction on the implied freedom of political speech contained in the Australian Constitution.

I have discussed this implied freedom in a number of previous blog posts- for one which deals with it in some detail see “Free speech and religious freedom even for ADF members” (Dec 10, 2015). (The decision dealt with by that post was later overturned- see here. But the principles set out there are still valid.)  In short, while there is no formal protection of free speech generally in the Commonwealth of Australia Constitution, the High Court in a series of cases has identified an implied freedom of communication on political matters, which will govern and over-ride laws made by all Parliaments of Australia, actions by the executive, and which also has an impact on the rules of common law.

Emerton J summed up the principles involved at para [29], relying on the latest guidelines spelled out in the case of McCloy v New South Wales [2015] HCA 34 (7 October 2015):

               In McCloy, the test for assessing the constitutional validity of legislation in the light of the implied freedom of communication was expanded as follows:

1. Does the law effectively burden the freedom of communication about government or political matters either in its terms, operation or effect?
2. Is the purpose of the law and the means adopted to achieve that purpose compatible with the maintenance of the constitutionally prescribed system of representative government?
3. Is the law reasonably appropriate and adapted to advance that legitimate object? This is analysed through three stages. First, the suitability requirement requires that the law have a rational connection to the purpose of the provision. Secondly, the necessity requirement considers whether there are any obvious and compelling alternatives, reasonably practical means of achieving the relevant purpose in a way which has a less restrictive effect on the freedom. Finally, the adequacy on balance requirement considers whether there is a balance between the ‘positive effect of realising the law’s proper purpose with the negative effect of the limits on constitutional rights or freedom’. (emphasis added)

To summarise, her Honour agreed with the appellant that the law did impose a “burden” on political speech, as from time to time a member of the public may wish to make a political point using a challenging image which could be classified as “obscene”- see [37]-[38]. (At different points her Honour refers to specific examples, such a video of an ISIS beheading, at [55], or the photograph of a young man strapped to a chair and hooded in a detention centre, at [84]. One could add to these examples the well-known picture of a young Vietnamese girl who had been the victim of a napalm attack, which shocked the conscience of many in the West about that way the war in Vietnam was being waged. )

The next issue is whether the purpose of the law is compatible with our system of government, a question which is also addressed to the means by which that purpose is implemented. Broadly, her Honour agreed with the Victorian Attorney-General that the law prohibiting obscenity was directed to the avoidance of “seriously shocking” images, in the interests of “good order in public places”- see paras [45], [50]. She was careful to say that the standard of “obscenity” was qualitatively far more serious than what was simply “offensive”. This was said in response to comments made by some of the members of the High Court in the previous decisions of Coleman v Power (2004) 220 CLR 1 and Monis that a law which penalised the causing of mere “offence” would probably be invalid (see the discussion of this point at paras [57]-[72].)

In addition, it was noted that the law has regulated publication of obscenity for a long time consistently with our democratic system- see [79]. Her Honour considered an argument which she said bore some weight, drawn from comments made by Hayne J in Monis, that a restriction on publication of images might be inconsistent with the law of defamation, which allows publication of material that is true, even if attacks someone’s reputation. Her response was, at [86], to refer to the defence of “qualified privilege” and note that this defence required that publication be “reasonable in all the circumstances”.

It has to be said, however, that this misses one of the points made by Hayne J, and brought out by counsel for the plaintiff. In defamation “truth” alone is a defence (separate to the “qualified privilege” defence), and does not require the demonstration of “reasonableness”. To take an example referred to at para [87], one of the posters displayed a dead foetus next to a coin and the slogan “Blood Money”. By use of this phrase (perhaps drawn from the Biblical story of Judas), there may have been seen an allegation that the owners of the clinic conducted a business of killing human beings for money. In a defamation action the plaintiff may argue that the picture of the dead foetus shows that the being who was killed is clearly a human being. That goes to the truth of the assertion. In other words, she may need to rely on the picture as part of a defence of truth in an action for defamation, while being punished by the criminal law for displaying the image as obscene. There does at least seem some incoherence there between the operation of the two areas of law.

Of course, this is not a complete argument for the invalidity of the law. It may be accepted that an image which might be used as part of a case for truth in a defamation action (for example, of sexual relations between two persons) could be restricted from being shown in public under the law of obscenity. The two laws do have different purposes and operation. But it suggests that there is at least some tension here between an implied freedom of speech and the operation of the obscenity law.

Emerton J then considered the other questions of “proportionality“, including whether the law was suitable (it was- [94]), and whether the law went no further than was “necessary”to achieve its aims. This I think is an important question. It was argued that, while it was reasonable to prevent public obscenity in most cases where the material would not be public value, there should be some sort of “defence” or “carve-out” from the law where political matters were being discussed. Her Honour rejected this, saying that it would be “unworkable” to allow such a provision- [100]. With respect, I am not so sure. It would not seem to be impossible to provide a formal defence of some sort where the allegedly obscene images were being used as an integral part of communication on political or governmental issues. The onus would lie on the defendant to make out a plausible claim for this protection. In prohibitions on speech the law has been crafted to allow such defences- see, for example, s 18D of the Racial Discrimination Act 1975 (protecting things said reasonably and in good faith “in the course of any statement, publication, discussion or debate made or held for any… genuine purpose in the public interest”).

Finally, Emerton J considered the question whether there was an adequate balance achieved between the purposes of prohibition of obscene material and the impact on the freedom of political communication. She found that there was- see [107]. The law operated in the context of images of the most extreme sort and political communication was not completely prohibited. The application for review of the County Court decision was dismissed.

C. Concluding Comments

The question whether a law forbidding the display of obscene images in public, will in some cases interfere with freedom of political communication, is a difficult one. As noted above, in my view there would be room to recognise the strong value of free speech in our society, especially on controversial political matters, by spelling out a defence that allowed a person alleged to have committed such an offence, in the rare cases where display of such images is a plausible way of furthering such a debate, to not be guilty of the offence.

In particular, it seems to me that a law targeted only at sexually obscene images would rarely if ever require such protection. Perhaps a simpler way of protecting free speech here would for the courts to hold, or for Parliament to make it clear, that “obscenity” refers, as it traditionally always has, to material of a sexual nature. If there is a general social problem of other “horrifying” matter being displayed, then Parliaments can choose to deal with that in separate legislation.

Some further comment to conclude on the circumstances of this sort of case: the proposition that “abortion on demand” should be freely available seems to be gaining wider public support, although the trend is not universally so. In Queensland recent legislation along these lines was withdrawn from the Parliament there, as it became clear that it would not be supported. On the other hand, the Northern Territory Parliament has recently enacted wide-ranging reforms which are said to “decriminalise abortion”.

In this debate those who are opposed to wide-reaching abortion laws are primarily concerned with the lives of the unborn children terminated. Scientific evidence from all sources makes it incontestable that a foetus is a member of the human race, and ultra-sound technology has revealed in more and more detail how early in the development stage of an unborn child, that obviously “person-like” features are apparent. Being able to show pictures of the results of abortion procedures, while not appropriate in all cases, is a part of making that case.

Unfortunately it sometimes seems that those uncomfortable with decisions here would prefer not to know the truth. This can be seen in the incredible decision of French broadcasting authorities to refuse to allow the airing on public television of a video featuring articulate and happy Down’s Syndrome children discussing their lives. The ban was justified on the basis that it would upset some who had made the decision to terminate their pregnancy upon discovering that the baby had Down’s Syndrome.

Laws protecting free speech have the benefit that they allow decisions to be made on the basis of the best evidence available, not simply those sources which are approved by current political orthodoxy. This was well-appreciated by the “reformers” of sexual mores in the 1960’s. It is no less true when the current “heretics” are those supporting “traditional” sexual morality and the lives of unborn children. Our courts need to interpret laws in light of the need for open debate on these important issues.