Permissible limitations

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.

Very few human rights are absolute and most rights can be subjected to permissible limits. For more information on absolute rights, see information sheet on Absolute rights. Broadly, there are two ways in which the enjoyment of non-absolute rights may be limited.

Express limitations

Some rights contain express limitation clauses which set out the specific parameters by which these rights may be limited. These clauses include prescribed purposes that may justify the limitation of the right, such as national security, public order, public health, public safety, public morals, and the protection of the rights and freedoms of others. A full list of these permitted purposes and the rights to which they apply are set out in the table at the end of this information sheet. An example is the right to freedom of expression in Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Among other things, Article 19 ICCPR can be limited to protect the rights and freedoms of others, such as the right to privacy and reputation.

Some treaties contain a general limitation clause. For example, the rights guaranteed by the International Covenant on Economic, Social and Cultural Rights (ICESCR) may be subject to limitations in accordance with the general limitations clause in article 4 ICESCR.

Implied limitations

Implied limitations can arise as a result of interpreting terms such as 'fair' (e.g., Article 14 ICCPR); 'arbitrary' (e.g., Article 17 ICCPR); or 'reasonable' (e.g., Article 25 ICCPR).

There are other rights where there is no limitation mentioned in the text of the article, but where limitations have been read in through the interpretation of the right. For example, the Human Rights Committee has read in limitations to the right to culture in article 27 ICCPR even though the text of the article contains no limitation.

Key criteria

Any measure seeking to limit rights needs to conform to the following criteria to be permissible.

Prescription by law

The limitation must have a clear legal basis. This means that the law authorising the limit of the right must be:

  • publicly accessible so that people have an adequate indication of how the law limits their rights
  • sufficiently precise to enable people to regulate their behaviour accordingly.

Additionally, a law authorising a limitation of rights must not confer unfettered discretions on those charged with its execution. Discretionary powers must be appropriately circumscribed and include adequate safeguards to prevent the risk of abuse or arbitrary exercise of the discretion.

Pursue a legitimate objective and be reasonable, necessary and proportionate

In addition to being prescribed by law, the limitation must be aimed at achieving a legitimate objective and also be reasonable, necessary and proportionate. This means the limitation:

  • must be necessary to achieve a legitimate objective
  • adopt a means that is rationally connected to that objective
  • those means must be no more restrictive than required to achieve the purpose of the limitation.

Useful questions to ask when assessing whether a measure limiting a right is reasonable, necessary and proportionate

  • Will the limitation in fact lead to a reduction of that problem?
  • Does a less restrictive alternative exist, and has it been tried?
  • Is it a blanket limitation or is there sufficient flexibility to treat different cases differently?
  • Has sufficient regard been paid to the rights and interests of those affected?
  • Do safeguards exist against error or abuse?
  • Does the limitation destroy the very essence of the right at issue?

Useful questions to ask when assessing whether a measure limiting a right is aimed at a legitimate objective

  • What is the problem that is being addressed by the limitation?
  • Is it sufficiently important to justify limiting the right in a free and democratic society?
 Bear in mind that:
  • Legitimate objectives involve more than merely preventing outcomes that are undesirable, offensive or inconvenient.
  • Something is not a legitimate objective simply because most people would agree with it.
  • Limitations that are considered legitimate in a free and democratic society will be consistent with values of tolerance, pluralism and broadmindedness.

Rights which may be limited for certain prescribed purpose only

Right Limitation in ICCPR/ICESCR article Purpose of limitation
i.e., where necessary for the protection of:
Freedom of movement 12(3) ICCPR National security
Public order
Public health
Public morals
Rights and freedoms of others
Procedural protections relating to decision to expel a lawful alien 13 ICCPR National security
Exclusion of press and public from criminal or civil proceedings 14(1) ICCPR National security
Public order
Public morals
Parties' private lives
Interests of justice
Freedom to manifest one's religion or beliefs 18(3) ICCPR Public safety
Public order
Public health
Public morals
Rights and freedoms of others
Freedom of expression 19(3) ICCPR National security
Public order
Public health
Public morals
Rights or reputation of others
Right to peaceful assembly 21 ICCPR National security
Public safety
Public order
Public health
Public morals
Rights and freedoms of others
Freedom of association 22(2) ICCPR National security
Public safety
Public order
Public health
Public morals
Rights and freedoms of others
Right to form and join trade unions; and
Right of trade unions to function freely		 8(1)(a) & 8(1)(c) ICESCR National security
Public order
Rights and freedoms of others

Where can I find assistance?

If you have specific questions about this Information Sheet, please contact the International Human Rights and Anti-Discrimination Branch at humanrights@ag.gov.au or 02 6141 6666.

NB: During a time of armed conflict, international human rights law remains generally applicable. However, during armed conflict, international humanitarian law is the body of law that applies specially to the circumstances of armed conflict.