One of the activists, a self-styled cleric also known as Sheikh Haron, allegedly sent letters condemning the dead soldiers.
Muslim activists who taunted dead soldiers' families lose appeal
CANBERRA // Two Muslim activists accused of sending offensive letters to families of Australian soldiers killed in Afghanistan narrowly lost a court appeal today that cited their constitutional freedom of speech.
Iranian-born Man Horan Monis, a self-styled cleric also known as Sheikh Haron, was charged in 2009 with 12 counts of using as postal service in an offensive way and one count of using a postal service in a harassing way. Amirah Droudis was charged with aiding and abetting the offences.
The six judges of the High Court split on whether the charges were compatible with Australians' right to free speech. When the nation's highest court is undecided, an appeal is dismissed and the lower court decision stands.
That sends the charges to a lower court where they will be heard on a date to be set.
Monis allegedly wrote letters critical of Australia's military involvement in Afghanistan and condemning the dead soldiers. He also allegedly wrote to the mother of an Australian official killed in a terrorist bomb blast in Jakarta, Indonesia, in 2009 and blamed Australian government policy for the tragedy.
His lawyers argued in the High Court last year that the charges were invalid because they infringed on Australians' right to freedom of political communication.
The Australian High Court has held for decades that the constitution contains an implied right to free speech because such political communication is essential to democracy.
The pair had appealed in the High Court the unanimous ruling of three judges of the New South Wales state Court of Appeal in December 2011.
"While at one level the letters are critical of the involvement of the Australian military in Afghanistan, they also refer to the deceased soldiers in a denigrating and derogatory fashion," their judgment said.
It is not immediately clear what potential jail term the charges carry.