Right to freedom of opinion and expression

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to freedom of opinion and expression?

The right to freedom of opinion is the right to hold opinions without interference, and cannot be subject to any exception or restriction.

The right to freedom of expression extends to any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. The right is not absolute. It carries with it special responsibilities, and may be restricted on several grounds. For example, restrictions could relate to filtering access to certain internet sites, the urging of violence or the classification of artistic material.

Where does the right to freedom of opinion and expression come from?

Australia is a party to seven core international human rights treaties. The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR).

See also articles 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , articles 12 and 13 of the Convention on the Rights of the Child (CRC) and article 21 of the Convention on the Rights of Persons with Disabilities (CRPD).

When do I need to consider the right to freedom of opinion and expression?

You will need to consider the right to freedom of opinion and expression if you are working on legislation, a policy or a program that:

  • regulates the content of any speech, publication, broadcast, display or promotion
  • regulates the format or manner of any form of expression (for example requires prior approval for public protest or places restrictions on the uses of places in which protest activity may take place)
  • restricts or censors media coverage, including in relation to political matters
  • requires material to be approved before it may be published
  • attaches criminal or civil liability to the publication of opinions or information
  • regulates or restricts access to information, including on the internet
  • imposes censorship or provides for classification of entertainment content, or
  • regulates commercial expression (such as advertising).

This list should not be regarded as exhaustive.

When working on a measure that restricts freedom of expression, you should ask yourself whether the measure can be justified under the permitted grounds for restriction, whether it will be effective to achieve the desired ends, whether it impinges on freedom of expression to a greater degree than is necessary and whether there are less restrictive means of achieving the desired ends.

The requirement to prohibit advocacy of hatred that constitutes incitement to discrimination contains mandatory limitations on freedom of expression. You will need to consider the requirement if you are working on legislation, a policy or a program that regulates offensive speech or the publication or broadcast of offensive material.

What is the scope of the right to freedom of opinion and expression?

The right in article 19(1) to hold opinions without interference cannot be subject to any exception or restriction. The right in article 19(2) protects freedom of expression in any medium, for example written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. The right protects not only favourable information or ideas, but also unpopular ideas including those that may offend or shock (subject to limitations). Freedom of expression carries with it special responsibilities, and may be restricted on several grounds, discussed further below.

The CRPD provides that for people with disability, the right to accessible formats and technologies is required to enable them to exercise their right to freedom of opinion and expression.

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What is the scope of the requirement to prohibit advocacy of hatred that constitutes incitement to discrimination?

Article 20 of the ICCPR contains mandatory limitations on freedom of expression, and requires countries, subject to reservation/declaration, to outlaw vilification of persons on national, racial or religious grounds. Australia has made a declaration in relation to article 20 to the effect that existing Commonwealth and state legislation is regarded as adequate, and that the right is reserved not to introduce any further legislation on these matters.

Article 4(a) of CERD requires countries to criminalise all dissemination of ideas based on racial superiority or hatred and incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any racial or ethnic groups. On becoming a party to CERD in 1975, Australia made a reservation in relation to Article 4(a) that it was not then in a position to criminalise all the matters covered in the article. The reservation has not been withdrawn. During Australia's Universal Periodic Review in 2011, the Australian Government committed to establishing a systematic process for the regular review of Australia's reservations to international human rights treaties.

Article 4(b) of CERD requires the criminalisation of participation in organisations which promote and incite racial discrimination.

Can the right to freedom of opinion and expression be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to freedom of opinion and expression 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.

Limitation

In addition, under article 19(3) freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by legislation necessary to achieve the desired purpose and proportionate to the need on which the limitation is predicated.

Rights of reputation of others

In a case which involved a complaint about a law prohibiting denial of the holocaust, the UN Human Rights Committee stated that the restriction of the complainant's freedom of expression was permissible as it was necessary for respect of the rights and reputations of others.

National security

The national security limitation would justify prohibitions on transmission of information, including 'official secrets', which would adversely affect the security of the nation, provided the prohibition is reasonable, is effective to protect national security, and restricts freedom of expression no more than is necessary to protect national security.

Public order

'Public order' is understood to mean the rules which ensure the peaceful and effective functioning of society. The limitation in article 19(3) would justify prohibitions on speech that may incite crime, violence or mass panic, provided the prohibition is reasonable, is effective to protect public order, and restricts freedom of expression no more than is necessary to protect public order.

Public health

The public health limitation has not been tested before the Human Rights Committee.

Public morals

The Human Rights Committee has stated that there is no universally applicable standard for what constitutes public morality. A restriction on certain pornographic material, for example pornographic material depicting minors, would be an example of a limitation on freedom of expression based on public morality. In Australia, the National Classification Scheme is designed to provide consumers with information about publications, films and computer games, to allow them to make informed decisions about appropriate entertainment material for themselves and their children. The Scheme is based on the following principles:

  • adults should be able to read, hear and see what they want
  • minors should be protected from material likely to harm or disturb them
  • everyone should be protected from exposure to unsolicited material that they find offensive
  • the need to take account of community concerns about depictions that condone or incite violence, particularly sexual violence, and the portrayal of persons in a demeaning manner.

Which domestic laws relate to freedom of opinion and expression?

There is no Commonwealth legislation enshrining a general right to freedom of expression.

The High Court has inferred a freedom of political communication primarily from sections 7 and 24 of the Constitution. These provisions require that members of the Parliament be 'directly chosen by the people'. The High Court found that for this to be an informed choice, there must be free access to relevant political information. However, the Court has recognised that the implied freedom can be limited, or burdened, but only by laws that are reasonably appropriate and adapted to serving a legitimate end in a manner which is compatible with Australia's system of representative and responsible government. The freedom has been inferred by the court in declaring invalid Commonwealth laws that prohibited the broadcasting of political material in the lead-up to elections and obliged broadcasters to provide free advertising time to political parties during an election period. The right has also been held to allow the distribution in a public place of pamphlets alleging corruption by named police officers.

Restrictions

Some restrictions on freedom of expression exist. For example, the Criminal Code Act 1995 contains offences relating to urging by force or violence the overthrow of the Constitution or the lawful authority of the Government. The Criminal Code also contains offences relating to the use of a telecommunications carriage service in a way which is intentionally menacing, harassing or offensive, and using a carriage service to communicate content which is menacing, harassing or offensive.

Existing laws on the prohibition of advocacy of hatred that constitutes incitement to discrimination

The Racial Discrimination Act 1975 makes it unlawful to do an act reasonably likely to offend, insult, humiliate or intimidate another person or group if the act is done because of the race, colour or national or ethnic origin of the person or group.

What other rights and freedoms relate to the right to freedom of opinion and expression?

The right to freedom of opinion and expression may also be relevant to:

  • the right to freedom of thought, conscience and religion in article 18 of the ICCPR
  • the right to peaceful assembly in article 21 of the ICCPR
  • the right to freedom of association in article 22 of the ICCPR
  • the requirement to provide information to persons with disability in accessible formats and technologies in article 21 of the CRPD.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 19

  • Everyone shall have the right to hold opinions without interference.
  • 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.
  • 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:
    1. For respect of the rights or reputations of others;
    2. For the protection of national security or of public order (ordre public), or of public health or morals.

Article 20

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

See also: CERD articles 4 and 5; CRC articles 12 and 13; CRPD article 21.

Where can I read more about the right to freedom of opinion and expression?

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