ABSTRACT
This chapter concerns the High Court’s decision in Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92. This decision is especially noteworthy because of the visibility of the gender balance as it saw Crennan, Kiefel and Bell JJ write together in a single joint judgment, which came to an entirely different conclusion from the three men who also sat on the case. The case concerned the limits of the implied freedom of political communication, the closest thing to a right to free speech in Australia. Authorship (or the gendered division of labour) is the visible and obvious gendered implication to arise in Monis. Yet there are less visible but equally significant dynamics negotiated in the decision. Notably, the women and men judges conceptualised the contours and limits of freedom of political communication and notions of offence in different ways—especially with respect to the importance they afforded the home as a place free of intrusion from harm. The divergent opinions adopted by the men and women judges in Monis reflect some of the tensions feminist theorists have exposed in the law’s dichotomous conceptions of its own reach in public and private spheres. Understood in this way, in Monis we see two views about the appropriate reach of the freedom of political communication when it intrudes into the home, or the very private sphere which law has sometimes feigned disinterest in. On one view, the view taken by the men judges, offensive communication is seen as the necessary byproduct of robust political debate. On the other, in the view taken by the women judges, the law should reasonably be able to prohibit the harm caused by seriously offensive communications in the context of an intrusion into the private sphere. These divergent opinions rest on different conceptions of the law’s relationship with the political system and illustrate the way in which gendered rationalities can inform legal understandings.
