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Freedom of expression is protected by ss 16(1) and (2) of the HRA

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Freedom of expression is protected by ss 16(1) and (2) of the HRA Powered By Docstoc
					Freedom of expression is protected by ss 16(1) and (2) of the HRA.

The corresponding right in the ICCPR is article 19.




The first paragraph of s16(1) corresponds perfectly with article 19(1)

of the ICCPR, being the right of freedom of opinion. Under the

ICCPR, and therefore under HRA, freedom of opinion is an absolute

right




Which makes sense – it is a totally passive activity, and does not

directly impact on anybody. Even malevolent opinions, eg racist or

sexist opinions, do no harm to anybody until expressed. Of course,

one must wonder how one’s freedom of opinion could be realistically

curtailed. Well, it can happen – through practices like brainwashing

etc.




I will move on to the key provision of art 19, ie protection of freedom

of expression itself – ie not just passive holding of opinion, but active

expression of one’s opinion. Note here that s16 includes definition of

‘expression’ from art 19.




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‘Expression’ includes the imparting of information (expressing one’s

self), also access to information – the idea that one can seek and

receive information – obvious implications here re FoI, and secrecy

provisions etc.




Expression can be in writing or print, but is not just verbal – can also

be graphic or pictorial – or some other medium – banners, or perhaps

simple symbolic speech, like hand gestures, silent protests like Merlin

on Big Brother, all qualify as expression. A recent case before HRC

under ICCPR indicated that hunger strike as a form of protest is a

form of expression.




Enforced speaking – ie being forced to say something one does not

want to – also inhibits freedom of expression (eg perhaps the quasi-

compulsory display of a flag).




Expression under the ICCPR and the HRA extends far beyond

‘political speech’, which of course has constitutional protection in

Australia.




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Eg. HRC has confirmed that commercial speech is protected under art

19. The case of Ballantyne v Canada concerned bans in Quebec on

commercial signage in English language: those bans were found to

breach art 19




Limits to Freedom of Expression




One does not have an absolute right to freedom of expression; it is a

qualified right. Indeed, note the explicit mention of duties associated

with freedom of expression in Art 19 – a clear allusion to the dangers

of unbridled exercise of the right. This is unique in the list of rights in

ICCPR.




Now, s.16 is qualified by s.28 of the HRA. But article 19(3) ICCPR

will be used as a guide by judges in determining limits to freedom of

expression. Those limits are more clear than is currently expressed in

ACT legislation. Discussion and analysis of the limits will be the crux

of future case law on freedom of expression.




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First point to note is that HRC has consistently said that limits are to

be interpreted narrowly so as not to swallow up the relevant right.

Therefore, implicit that burden of proof is on the person, often a

government, attempting to establish that a limit applies. Those limits

are:




19(3)(a) = respect for rights of others, respect for reputations of others

and (b) = protection of national security, public order (ordre public),

public health, public morals.




And these limits to freedom of expression are subject to two

overriding principles. First, the limits must be ‘provided by law’.

This means that the limit must be clearly spelt out in a law – one must

know the extent of limits to one’s right to freedom of expression and

can only know that if the limit is imposed by law, rather than the

arbitrary whim of a decision-maker.




The limiting law must satisfy certain characteristics – it must be

accessible, sufficiently circumscribed and clear, predictable in

application, and prospective rather than retrospective.



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This requrement is also spelt out in s.28 of HRA.




The limit must also be ‘necessary’. That little word ‘necessary’

imports a notion of proportionality. The limiting measure must be

‘necessary’ to achieve one of the ends in 19(3)(a) and (b).

Proportionality is reflected in s.28 through the words ‘reasonable’ and

‘demonstrably justified in free and democratic society”.




So the limiting law can’t be counterproductive – it must actually go

some way towards achieving one of these legitimate ends.

Furthermore, it cannot go too far – old cliché: cannot use a

sledgehammer to crack a nut.




It is this key element of proportionality that will probably preoccupy

most judgments on freedom of expression in ACT in future. It is a

slippery concept – incorporates issues of reasonableness – is the law

appropriate and adapted to achieving a legitimate end?




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Judges are of course used to certain vague concepts – eg reasonable

person and reasonable foreseeability tests in tort. Proportionality itself

crops up often in federal constitutional law.




Proportionality will emerge on case-by-case basis, as it is a very fact-

bound test to apply.




I turn now to the ends that a proportionate limitation to freedom of

expression may seek to achieve.




Reputations of Others – clearly this issue is relevant to laws re

defamation. Defamation laws are undoubtedly a restriction on freedom

of expression, but may of course be saved under this heading.




Public order (ordre public)

Public order refers to those rules which ensure the peaceful and

effective functioning of society, or even within a part of society. Eg

public order can relate to the maintenance of order in a limited

context, such as within a prison, or within military ranks, rather than

broader society.


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Common reasons to limit speech for reasons of public order may be to

limit expression that causes panics or riots or violence. Classic eg –

calling “fire’ in crowded area. Another eg may be ban on racial

vilification. I note here that the mandatory ban on racial vilification

that is contained in ICCPR at art 20 has been omitted from the HRA.

Perhaps it is implicitly included as a limit to freedom of expression,

especially given the directive that freedom of expression be

interpreted in accordance with the ICCPR.




Ordre public = French translation. It is the only French translation

contained in entire English version of ICCPR because there is no

perfect French translation of public order. Ordre public is the nearest

thing.




However, ordre public in French law, indeed in European civil law

countries generally, is a broader concept than public order in English

law or common law generally. P.o. in common law is a public law

concept – relates to public law areas like administrative law or

criminal law. Whereas in Europe, it extends further into private law.

Eg in Europe a contract can be struck down for reasons for


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incompatibility with ordre public. Whereas that does not make sense

in common law context.




A closer translation of ordre public is ‘public policy’ rather than

public order. Of course public policy is a much broader concept than

public order, and appears to be a dangerously broad potential limit to

freedom of expression.




I am only aware of one case, in Hong Kong, where the difference

between ordre public and public order has been decisive, where a HK

court upheld a prohibition on desecration of the Chinese flag.




It is to be hoped that the ACT does not follow HK’s lead in this

respect.




National Security




Now, public order and national security are commonly pleaded to

justify limits to freedom of expression. But national security is a

much narrower concept than public order. Public order preserves


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order in society, or in a section of society. National security preserves

security and territorial integrity of the State




Typical law in this regard would be official secrets acts or, perhaps

chillingly, forcing a journalist to reveal a source.




I believe national security and public order are probably the most

abused limits to freedom of expression. They are often pleaded by

governments before HRC in most general terms, where it is apparent

that the purpose of a limit on freedom of expression is simply to

protect the people in power, rather than society or the State.




Public health speaks for itself. It is important to occasionally limit

freedom of expression as a proportionate measure to protect public

health. Examples may be enforced labelling on cigarette packets,

enforced revelation of information to consumers, perhaps restrictions

on the advertising of junk food.




Public morals could relate to restrictions on pornography, obscene

language.



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Rights of others

Now, the previous limits seem to balance rights of individual to

freedom of expression vs broader societal interests. They seem to

serve some sort of utilitarian function.




I am not saying that human rights are utilitarian. I am saying that

utilitarian considerations can be relevant in determining limit to a

right.




Here, with this last limit, we are balancing the right of one vs rights of

others, or even an other.




Eg copyright - I can’t copy out Andrew’s talk and put my name on it

and peddle it to the world at large. That protects his right to

intellectual property as an author – protected under ICESCR




Contempt of court limits reporting of court proceedings. It helps to

ensure the accused’s right to a fair trial.




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There are arguments that certain forms of pornography amount to

gendered hate speech, or gender vilification. Therefore, restrictions on

porn may protect the rights of others along with public morality.




Balancing can generally only be done on a case-by-case basis as there

is generally no hierarchy of rights.




Sometimes the balance is obvious. In Venables in the UK –

newspapers were prohibited from revealing the whereabouts and new

identities of two juvenile offenders who were released from prison.

The offenders were guilty of the murder of the toddler Jamie Bulger,

a horrific incident that traumatised UK in early 90s. There was

evidence of likely vigilante attacks on the boys if their

whereabouts/ID became known. Thus, freedom of expression was

limited, and rightly so, by the implications for the right to life, and

freedom from inhuman treatment.

The balance can be more difficult in other contexts. For example, note

the recent case where Naomi Campbell sued Daily Mirror in UK for

publishing a story about her time in rehab, including surreptitious

photos. She won 3:2 in House of Lords. There was a clear split

between those that believed her privacy outweighed freedom of


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expression, and the minority who came to the opposite conclusion. A

similar split arose in the Court of Appeal, though in that lower court

Naomi Campbell lost.




My final point – it is important that the rights of others is interpreted

so as to mean the “human rights” of at least one other. A human right

should not be outweighed by anything less than another human right.




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