Kentavius Street Jersey Freedom of Opinion and Expression and it's Implementation in Australian Law - Caleb Corneloup

Freedom of Opinion and Expression and it’s Implementation in Australian Law

Written by Caleb Corneloup

 

 

INTERNATIONAL LAW

 

This essay looks at freedom of opinion and expression. Freedom of thought, conscience, and religion, as well as freedom of association and assembly are all based on the principles of freedom of opinion and expression.[1] Freedom of opinion and expression are indispensable incidents of democracy and are the touchstone of all other rights.[2] The freedoms of belief and expression are affirmed in article 19 of the Universal Declaration of Human Rights as well as articles 19 and 20 of the International Covenant on Civil and Political Rights. The right to freedom of expression is not absolute and it can be curtailed provided the restrictions are compatible with Article 19(3). This essay also looks at the range of protections for freedom of expression, particularly tin the Australian Common Law and the Implied freedom of political communication within the Australia Constitution.

 

ARTICLE 19(1)

 

Everyone shall have the right to hold opinions without interference.

 

Freedom of opinion is the right to believe anything, no matter what the subject is, and no matter how controversial your belief might be. There are no exceptions to this right and no-one can be forced to change his or her opinion or be penalized for it.[3] Neither can anyone be forced to disclose their personal opinions, and no-one can be discriminated against for their views.[4] Furthermore, freedom of belief prevents states from indoctrinating citizens and promoting one-sided information.[5]

 

ARTICLE 19(2)

 

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

 

Freedom of expression is said to be the vehicle for freedom of belief. Freedom of expression is not limited to speech, but it encompasses all forms of communication, including writing, print, and art. There are a plethora of examples which can be given. Grassroots movements typically hand out newspapers or leaflets, give public and private speeches or lectures, seek interviews with the media and so forth. There are many other examples such as raising a flag, silent prayer, turning one’s back on a speaker or calling for a boycott.[6] Any kind of body language could be considered an expression for the purposes of article 19(2). The right to freely express oneself is considered as a means through which a person can discover and impart truth.[7] Freedom of expression cannot be limited to content that is acceptable in society, rather it must extend to speech that offensive, insulting and even shocking.[8] Without freedom of opinion and expression, the accountability and transparency that is needed for the promotion of human rights cannot be attained.[9] Furthermore, democracy itself requires a robust right to freedom of opinion and expression[10] in order for a government to legitimately form laws and govern a nation.[11] It follows then, that freedom of opinion and expression are essential for the enjoyment of all rights, whether those rights are civil and political rights, or economic, social and cultural rights.[12]

 

 

ARTICLE 19(3)

 

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

 

Article 19(3) provides a three-limbed test to determine the validity of state-imposed restrictions upon the freedom of expression. This test reflects the common law principle of legality.[13] Restrictions must be governed by law, laws must be necessary to achieve a legitimate end and the means used must be proportionate to that end.[14] The test is broad and wide-ranging. it applies to all state agents and representatives, for example, police, prosecution, local councils, courts, intelligence services, immigration authorities and all other government departments and public servants, and includes all “formalities, conditions, restrictions or penalties”.[15]

 

PROVIDED BY LAW

Generally, restrictions “provided by law” ought to refer to written and public law and must not be arbitrary or unreasonable.[16] Restrictions on freedom of expression ought to be readily available to members of the public and written narrowly and with sufficient precision to enable individuals to regulate their conduct accordingly.[17] While restrictions ought to be written with clarity, they do not need to give absolute certainty to members of the public, as this would be difficult to attain and laws may become overly rigid and inflexible.[18] The common law has also been accepted by courts as being “provided by law”.[19]

 

LEGITIMATE AIM

Laws restricting freedom of expression must seek to achieve a legitimate end within the purview of article 19(3). The aims permissible under article 19(3) are respect for the rights and reputations of others, protection of national security, public order, public health, and morals. Article 19 will be breached whenever government restrictions on freedom of expression seek to achieve ends beyond the scope of article 19(3).

 

Rights of others should be understood as rights protected by law, particularly international law.[20] The European Court of Human Rights has frequently discussed the meaning of the rights of and reputation of others as it applies to the European Charter of Human Rights. In Otto-Preminger-Institut v. Austria, the court upheld government action when it seized a film which was gratuitously offensive to Christians. The court argued that the right to freedom of religion included the protection of religious feelings from gratuitously offensive expression.[21] However, in other cases, the European Court of Human Rights has possibly defined the meaning of rights of others too broadly and applied it to the protection of business reputation, interests of creditors, commercial competitors, and the economic interests of the country.[22] The UN General comment 34 has perhaps articulated a better interpretation, namely, that “rights” in article 19(3) refers to international law rights.[23]

 

Restrictions on extremist and seditious speech are examples of legitimate ends in the interests of national security.[24] Hate speech laws and public order offences prohibiting disorderly behavior and insulting, or offensive words are examples of laws created for the preservation of public order.[25] By-laws preventing public speaking and demonstrations without a permit could also be understood as having the aim of public health and safety. Finally, laws restricting indecent language and behavior, which could also potentially curtail freedom of expression, could be considered as laws which protect public morals.

 

NECESSARY

Laws restricting freedom of expression must not only have a legitimate end, they must also be necessary to achieve that end. This necessarily involves a test of proportionality where lawmakers must provide reasons and justification for restrictions on free speech.[26] In determining whether the restriction is necessary the court will consider the circumstances of the publication, the public need for the restriction and the effect it has upon freedom of expression.[27] Each country is responsible for creating their own laws and there is a margin of appreciation granted to nation states creating laws which potentially conflict with freedom of expression. The European Court of justice has stated that where there is little common ground between member states as to whether restrictions created in pursuit of a legitimate purpose are appropriate or not, then there is a wider margin of appreciation granted and where there is more common agreement, the margin of appreciation is narrower.[28]

 

 

ARTICLE 20

  1. Any propaganda for war shall be prohibited by law.
  2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

 

Article 20 creates a positive obligation upon signatory states to prohibit, by law, any propaganda for war and any advocacy of hatred against others, based on their national, racial or religious background, which incites discrimination, hostility or violence. In United Nation’s High Commissioner for Human Rights organized several expert workshops which resulted in the adoption of the Rabat Plan of Action in October 2012. The Rabat Plan of Action was annexed to the High Commissioners report to the UN on January 2012.[29] The plan includes a six-part threshold test to determine whether laws, created to prohibit racial hatred, were compatible with article 19.[30] The six parts of the test involve the context of the expression, the speaker, the speaker’s intent, the content and form of the expression, its reach and its likelihood to incite hatred, including its imminence.[31] Of particular note is the intent of the speaker, as the Rabat Plan of Action requires the speaker to intentionally advocate or incite hatred. Negligence and recklessness are not sufficient.[32]

 

Sections 29A to 29G of the Public Order Act 1986 (UK) serve as good examples of restrictions prohibiting incitement to religious hatred which comply with the Rabid Plan of Action. These provisions prohibit incitement to hatred of persons based on religion or sexual orientation in words, written displays, literature distribution, public performances, public broadcasting and possession of inflammatory material. However, section 29J states that nothing in those provisions should be read as prohibiting criticism, or expression of antipathy, dislike, ridicule, insult or abuse of particular religions or their beliefs. Likewise, section 29JA states that the mere “discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices” should not be considered as “intended to stir up hatred”. This keeps the focus of the legislation on prohibiting incitement to hatred, yet at the same time giving sufficient protection to freedom of speech.

 

 

AUSTRALIAN LAW

 

Protection of freedom of expression can be found throughout Australian law. Sources include the common law, constitutional law, as well as State and Federal law. Restrictions on freedom of expression are also found in common law as well as State and Federal Legislation. Courts are frequently invited to comment on freedom of expression and its restrictions and there is a wealth of case law evaluating the extent of free speech in Australia.

 

 

COMMON LAW

 

Australia received the English Common Law in 1836.[33] Since Australia is a Common Law nation, “everybody is free to do anything, subject only to the provisions of the law“.[34] The Common Law regards freedom of speech as a fundamental right associated with general liberty.[35] While Parliament can override Common Law, it cannot do so with general or ambiguous words. Unless laws are written with express language or necessary implication, Courts will interpret them narrowly, so as not to infringe upon Common Law freedoms.[36] This is known as the principle of legality.[37] Parliament must make their intention clear so that the people may hold them accountable whenever they make laws affecting freedom of speech.[38] Therefore, where laws can be narrowly constructed so as not to infringe upon free speech and freedom of expression then that interpretation should be preferred.[39] In Minister of State for Immigration and Ethnic Affairs v Teoh the High Court stated that even where international treaties have not been incorporated into Australian law, they nevertheless can impact the development of the Common Law in Australia.[40] Courts must also construe legislative provisions, wherever possible, to be in conformity with international law.[41] Nevertheless, because the Common Law can be overridden by legislation, it is insufficient to protect freedom of expression.

 

 

The principle of legality also applies to decision making power under delegated legislation. In Attorney-General (SA) v City of Adelaide and others, the High Court considered the validity of a Council by-law which prohibited preaching on roads, including malls and footpaths, without a permit.[42] In that case, the majority upheld the validity of the by-law as proportionate to the legitimate end of preventing obstructions on roads.[43] French CJ stated that principle of legality applied to the discretionary powers of decision makers when considering applications to preach under the by-law.[44] The majority agreed that since the decision to grant or deny a permit must be based on the purpose of the by-law in question, namely road safety, the content of the preaching could not be a consideration.[45] This concept was applied in Corneloup v Launceston City Council where the federal court quashed a council decision rejecting an application to preach under a similar by-law.[46] In that case, the court stated that the Council guidelines prohibiting the grant of permits to political and religious spruikers was to be interpreted narrowly and did not apply to political and religious preaching generally.[47] The court went on to say that if they did apply, they would be invalid as the by-law was not to be understood as prohibiting preaching per se, rather, it only prohibited preaching without a permit.[48] These principles could be applied to by-laws regulating a range of activities, including public addresses, literature distribution, public processions and the holding of banners and placards in public spaces.

 

 

THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION

 

There are no express guarantees of freedom of expression in the Australian Constitution. There is, however, an implied freedom of political communication imposed by sections 7, 24, 64 and 128 of the Australian Constitution.[49] The freedom is not a personal right, it is a freedom from laws which impermissibly burden the implied freedom.[50] A two-limbed test, known as the Lange test, is used to determine whether a law impermissibly burdens political communication.[51] First, does the law burden the implied freedom? Second, if the answer to the first question no, then the law is valid, if it is yes, then is the law reasonably appropriate and adapted to a legitimate end, in a manner which is compatible with the implied freedom of political communication?[52] If the answer to the second question is no then the law is invalid, if it is yes then the law is valid.

 

  1. The First Limb of the Lange Test

The first limb of the Lange test is not difficult to satisfy. In Levy v Victoria it was said that the implied freedom “protects false, unreasoned and emotional communications as well as true, reasoned and detached communications”.[53] It includes religious doctrine and public preaching and in mankind’s early history it was not easy to distinguish between government and religion.[54] Interestingly, in Australian Capital Television Pty Ltd v The Commonwealth, Gaudron J stated that political communication may apply to freedom of speech generally.[55]

 

  1. The Second Limb of the Lange Test

The second limb of the Lange test where most of the case law is focused. In Coleman v Power McHugh J formulated the test as follows,

‘is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?[56]

This requires that the end be legitimate, the means used to achieve the end be proportionate to the end sought, and both the end and the means be compatible with the prescribed system of representative and responsible government.[57] It is not sufficient that the end is legitimate, and the means be proportionate, both the end and the means need be compatible with the maintenance of representative government.[58] Unlike Article 19(3) of the ICCPR, the Australian Constitution does not provide a list of compatible ends.[59] The range of legitimate ends available to lawmakers is broad and wide-ranging. Numerous examples were provided by Hayne J in Monis v The Queen, namely,

 

“the protection of reputation, the prevention of physical injury, the prevention of violence in public places, the maintenance of a system for the continuing supervision of some sexual offenders who have served their sentences, “community safety and crime prevention through humane containment, supervision and rehabilitation of offenders”, and “the imposition of conditions [a parole board] considers reasonably necessary to ensure good conduct and to stop [a] parolee committing an offence”.

 

Essentially, any end will be legitimate provided it is compatible with representative government.[60] There have been few ends which the High Court has stated are incompatible with representative government. However, the High Court has stated that maintenance of the civility of discourse and the prevention of insulting words are not ends compatible with the maintenance of representative government.[61]

 

If a law is found to be made in pursuit of a legitimate end, then the court will examine the means adopted to fulfill that end. This involves a test of proportionality.[62] This test, for the purposes of the implied freedom, has three stages.[63] First, is the law suitable, that is, does it have a logical connection to the purpose of the law?[64] Second, is the law necessary, in the sense that there are no less drastic alternatives?[65] Third, does the purpose of the law justify the effect it has upon the implied freedom? If the answer to these question is yes then the law is valid, if it is no then the law is invalid.[66]

 

 

 

CONCLUSION

 

We have seen that freedom of opinion and expression are fundamental rights under the ICCPR. The right to freedom of opinion protects not only the right to hold an opinion but the right not to be discriminated against based on that opinion, not to be forced to change one’s opinion, and the right no to be forced to disclose one’s opinion. Freedom of expression, although broad and wide-ranging, is not absolute, and there are exceptions may be made in pursuit of the ends specified in article 19(3). Nation states also have the obligation to criminalize conduct which incites violence against others based on their race or religion. We have also seen that Australian law does have measures which protect freedom of expression, however, the protections are limited. The Common Law is a strong source of law protecting freedom of expression, but it can be overruled by legislation. The implied freedom is a strong development in Australia which protects freedom of expression and although the content it protects is quite broad, it nevertheless only protects political communication. Furthermore, the range of legitimate ends which legislators can seek to achieve in curtailment of political communication is much broader under the implied freedom than under Article 19(3) of the ICCPR.

 

Written by Caleb Corneloup

 

BIBLIOGRAPHY

 

A/HRC/22/17/Add.4.

Adelaide Company of Jehovah’s Witness Inc v The Commonwealth (1943) 67 CLR 116.

Amy Shepherd, Extremism, Free Speech and the Rule of Law: Evaluating the Compliance of Legislation Restricting Extremist Expressions within Article 19 ICCPR, 33 Utrecht J. Int’l & Eur. L. 62 (2017), 62-83.

Aoife O’Reilly, (2016) “In Defence of Offence: Freedom of Expression, Offensive Speech, and the Approach of the European Court of Human Rights,” Trinity College Law Review 19, 234-260.

Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.

Attorney-General (SA) v City of Adelaide and others (2013) 249 CLR 1.

Bomhoff, Jacco, ‘The Rights and Freedoms of Others’: The ECHR and its Peculiar Category of Conflicts between Individual Fundamental Rights, 5. Available at SSRN: https://ssrn.com/abstract=1031682

Catriona Cook et al, Laying down the law (LexisNexis Butterworths, 8th ed, 2012.

CCPR/C/GC/34.

Coleman v Power (2004) 220 CLR 1.

Corneloup v Launceston City Council (2016) FCA 974.

Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (eds), International Human Rights Law, Oxford Press 2nd ed, 2014.

Dominika Chawska-Siniarska, Protecting the right to freedom of expression under the European Convention on Human Rights, A handbook for legal practitioners, Council of Europe (2017).

Evans v NSW (2008) 168 FCR 576.

 

Lange v ABC (1997) 189 CLR 520.

Levy v Victoria (1997) 189 CLR 579.

Melbourne v Barry (1922) 31 CLR 174.

McCloy v New South Wales (2015) 257 CLR 178.

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

Monis v The Queen (2013) 249 CLR 92 .

Otto-Preminger-Institut v. Austria App No 13470/87 (ECtHR, 20 September 1994).

Public Order Act [1986] (UK).

United Nations, Treaty Series, vol. 999, p. 171.

 

 

 

 

[1] Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (eds), International Human Rights Law, Oxford Press 2nd ed, 2014, 225; CCPR/C/GC/34, 1.

[2] CCPR/C/GC/34, 1.

[3] CCPR/C/GC/34, 2-3; Dominika Chawska-Siniarska, Protecting the right to freedom of expression under the European Convention on Human Rights, A handbook for legal practitioners, Council of Europe 2017, 13.

[4] Daniel Moeckli, above n 1, 226.

[5] Dominika Chawska-Siniarska, above n 3, 13.

[6] Levy v Victoria (1997) 189 CLR 579, 638.

[7] Aoife O’Reilly, (2016) “In Defence of Offence: Freedom of Expression, Offensive Speech, and the Approach of the European Court of Human Rights,” Trinity College Law Review 19, 234, 236

[8] Boos v Barry 48 US 312 (1988), at 322; Handyside v the UK (1979-80) 1 EHRR 737; Soli K. Sorabjee, “Freedom of Expression,” Commonwealth Law Bulletin 19, no. 4 (October 1993): 1712-1721

[9] CCPR/C/GC/34, 1.

[10] Dominika Chawska-Siniarska, above n 3,

[11] Aoife O’Reilly, above n 7, 236.

[12] Daniel Moeckli, above n 1, 225.

[13] Amy Shepherd, Extremism, Free Speech and the Rule of Law: Evaluating the Compliance of Legislation Restricting Extremist Expressions within Article 19 ICCPR, 33 Utrecht J. Int’l & Eur. L. 62 (2017), 65.

[14] Ibid, 64.

[15] Dominika Chawska-Siniarska, above n 3, 33.

[16] Ibid, 39; CCPR/C/GC/34; Amy Shepherd, above n, 66.

[17] Dominika Chawska-Siniarska, above n 3, 39; Amy Shepherd, Extremism, Free Speech and the Rule of Law: Evaluating the Compliance of Legislation Restricting Extremist Expressions within Article 19 ICCPR, 33 Utrecht J. Int’l & Eur. L. 62 (2017), 66.

[18] Dominika Chawska-Siniarska, above n 3, 39.

[19] Ibid, 35.

[20] CCPR/C/GC/34; Otto-Preminger-Institut v. Austria App No 13470/87 (ECtHR, 20 September 1994).

[21] Otto-Preminger-Institut v. Austria App No 13470/87 (ECtHR, 20 September 1994).

[22] Bomhoff, Jacco, ‘The Rights and Freedoms of Others’: The ECHR and its Peculiar Category of Conflicts between Individual Fundamental Rights, 5. Available at SSRN: https://ssrn.com/abstract=1031682

[23] CCPR/C/GC/34

[24] Amy Shepherd, Extremism, Free Speech and the Rule of Law: Evaluating the Compliance of Legislation Restricting Extremist Expressions within Article 19 ICCPR, 33 Utrecht J. Int’l & Eur. L. 62 (2017), 73-74.

[25] Public Order Act [1986] (UK) s29A – 29JA.

[26] Dominika Chawska-Siniarska, above n 5, 41

[27] Ibid, 41

[28] Ibid, 35.

[29] A/HRC/22/17/Add.4, 2.

[30] A/HRC/22/17/Add.4, 11.

[31] Ibid.

[32] Ibid.

[33] Catriona Cook et al, Laying down the law (LexisNexis Butterworths, 8th ed, 2012) 38.

[34] Lange v ABC (1997) 189 CLR 520, 564.

[35] Evans v NSW (2008) 168 FCR 576, 594.

[36] Ibid.

[37] Ibid

[38] Ibid

[39] Melbourne v Barry (1922) 31 CLR 174, 187.

[40] Minister of State for Immigration and Ethnic Affairs v Teoh 183 CLR 273,288.

[41] Ibid, 287.

[42] Attorney-General (SA) v City of Adelaide and others (2013) 249 CLR 1.

[43] Ibid, 64, 89.

[44] Ibid, 33.

[45] Ibid, 33, 64, 89.

[46] Corneloup v Launceston City Council (2016) FCA 974.

[47] Ibid.

[48] Ibid.

[49] Lange v ABC (1997) 189 CLR 520, 567.

[50] McCloy v New South Wales (2015) 257 CLR 178, 202-203.

[51] Ibid, 194.

[52] Ibid, 194.

[53] Levy v Victoria (1997) 189 CLR 579, 623.

[54] Evans v NSW (2008) 168 FCR 576; Attorney-General (SA) v City of Adelaide and others (2013) 249 CLR 1, 32; Adelaide Company of Jehovah’s Witness Inc v The Commonwealth (1943) 67 CLR 116, 125.

[55] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, 212.

[56] Coleman v Power (2004) 220 CLR 1, 50.

[57] Coleman v Power (2004) 220 CLR 1, 50.

[58] McCloy v New South Wales (2015) 257 CLR 178, 194; Monis v The Queen (2013) 249 CLR 92, 151.

[59] Monis v The Queen (2013) 249 CLR 92, 148.

[60] McCloy v New South Wales (2015) 257 CLR 178, 203.

[61] Coleman v Power (2004) 220 CLR 1, 79, 87.

[62] McCloy v New South Wales (2015) 257 CLR 178, 195.

[63] Ibid.

[64] Ibid.

[65] Ibid.

[66] Ibid.