Human Rights Brief No. 4
Human Rights Brief No. 4
Lawful Limits on Fundamental Freedoms
Sources
1. Provided by law
2. A lawful objective
3. Necessary
4. Non-discriminatory
5. Exceptional
Limitations in Australian law
Select bibliography
Click here to view the Practioner Checklist
Many fundamental freedoms are guaranteed by international human rights law. They include the freedoms of expression, movement and choice of residence, peaceful assembly and association, and the freedom to manifest one's religion or belief.
All human rights and fundamental freedoms are subject to the general rule that no-one has the right to 'engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms' recognised elsewhere.(1)
Some freedoms cannot be restricted by governments in the interests of balancing other competing interests. These 'absolute freedoms' include freedom from torture, freedom from arbitrary arrest and detention, freedom of thought, conscience and religion and freedom to hold opinions without interference.
Other freedoms, 'limitable freedoms', can be restricted by governments within defined boundaries with the aim of protecting competing interests. These restrictions or limitations are themselves constrained by international human rights law. A lawful limitation is one that satisfies at least five criteria.
- It must be provided by law or, in the case of limits on peaceful assembly, imposed in conformity with the law.
- The objective must be one or more from the following exhaustive list: protection of national security and/or public safety, protection of public order (ordre public), protection of public health or morals, protection of the rights and freedoms of others.
- It must be necessary to achieve its objective.
- It must operate without discrimination.
- It must be exceptional and not impair the essence of the freedom itself.
Sources
Article 12.1 of the International Covenant on Civil and Political Rights (the Covenant) sets out the rights of those lawfully within a territory to liberty of movement and freedom of choice of residence. Paragraph 3 permits the limitation of those rights. Unlike other limitations, the limitation of article 12 freedoms must satisfy an additional criterion: it must be consistent with the other rights recognised in the Covenant.
Covenant article 18.1 contains both the absolute freedoms of thought, conscience and religion and the limitable freedom to manifest one's religion or belief "either individually or in community with others and in public or private . in worship, observance, practice and teaching'. Paragraph 3 sets out the grounds on which religious practice can be restricted.
Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
Covenant article 19 similarly permits the limitation of freedom of expression, adding protection of the reputations of others to the list of permissible objectives. This authorises defamation law as a limit on the freedom of expression, for example. Note, too, that article 20 requires States parties to limit freedom of expression by prohibiting 'propaganda for war' and 'advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence'. Article 20 does not bind Australia in full because of a reservation in the following terms.
... having legislated with respect to the subject matter of the article in matters of practical concern in the interests of public order (ordre public), the right is reserved not to introduce any further legislative provision on these matters.
Covenant article 21 permits the limitation of the right of peaceful assembly and article 22 permits the limitation of freedom of association. Both make reference to restrictions 'necessary in a democratic society' to emphasise the significance of these freedoms to a democratic system.(2) As Nowak notes,
The discourse of conflicting ideas is an essential feature of democracy. (3)
1. Provided by law
To be lawful, a limitation must be imposed by legislation or a comparable measure, for example, delegated legislation.(4) The legislation must disclose with sufficient certainty the extent of interference with the freedom which is authorised and the reasons for it. It 'should use precise criteria and may not confer unfettered discretion on those charged with their execution'.(5)
[M]ere administrative provisions are insufficient. A restriction on freedom of movement by way of an administrative act is only permissible when this follows from the enforcement of law that provides for such interference with adequate certainty.(6)
Canada's Parliamentary Press Gallery
In a communication (complaint) to the UN Human Rights Committee which monitors compliance with the Covenant, the author complained about restrictions on his freedom of expression. The Committee discussed the scope of article 19:
. the State party has restricted the right to enjoy the publicly funded media facilities of Parliament, including the right to take notes when observing meetings of Parliament, to those media representatives who are members of a private organization, the Canadian Press Gallery. The author has been denied [full] membership of the Press Gallery .
The State party argues that the restrictions are justified to achieve a balance between the right to freedom of expression and the need to ensure both the effective and dignified operation of Parliament and the safety and security of its members, and that the State party is in the best position to assess the risks and needs involved . the Committee agrees that the protection of Parliamentary procedure can be seen as a legitimate goal of public order and an accreditation system can thus be a justified means of achieving this goal. However, since the accreditation system operates as a restriction of article 19 rights, its operation and application must be shown as necessary and proportionate to the goal in question and not arbitrary. The Committee does not accept that this is a matter exclusively for the state to determine. The relevant criteria for the accreditation scheme should be specific, fair and reasonable, and their application should be transparent. In the instant case, the State party has allowed a private organization to control access to the Parliamentary press facilities, without intervention. The scheme does not ensure that there will be no arbitrary exclusion from access to the Parliamentary media facilities. In the circumstances, the Committee is of the opinion that the accreditation system has not been shown to be a necessary and proportionate restriction of rights.(7)
2. A lawful objective
The Covenant's articles differ slightly as to the lawful objectives which may be pursued by limitations or restrictions. In every case, the categories listed are exhaustive and not merely illustrative. Any restriction must be justifiable by reference to one or more of the objectives listed or it will be unlawful.
Meaning of 'national security'
This justification requires proof of a 'grave case . of political or military threat to the entire nation'. (8)The UN Human Rights Committee has approved limitations on the freedom to leave one's country which aim to ensure that liable citizens perform their national service obligations.(9) A compulsory residence order imposed on a terrorist who could not be expelled because of his refugee status was justified for reasons of national security.(10)
Meaning of 'public safety
Public safety 'refers to those threats to the security of persons or things that do not assume the proportions of a threat to the State'.(11)
Meaning of 'public order'
This term, or more precisely the French term 'ordre public' which appears beside it in brackets (except with respect to freedom of religion and belief )(12),
... not only describes the absence of disorder but also covers, in addition to public safety and the prevention of crime, all those universally accepted fundamental principles, consistent with respect for human rights, on which a democratic society is based.(13)
The types of concerns that may be covered by the public order limitation on freedom of internal movement and residency may include
- restrictions associated with the lawful deprivation of personal liberty, for example, for those convicted of or bailed on criminal charges
- common provisions for the regulation of traffic
- special measures to maintain public safety (such as blockades)
- regional planning policies and construction prohibitions in grasslands
- measures to protect nature, landscape and the environment
- measures to protect safety such as in earthquake, volcanic and landslide zones or in the event of internal unrest or threat of terrorist attack.(14)
A requirement to notify the police at least 6 hours in advance of an intended demonstration in a public place was approved by the Human Rights Committee in the interests of public order.(15) Similarly legislation regulating the registration of associations may be a justified 'limit' or control on their formation.(16) The Committee has found that 'the regulation of surnames and the change thereof was eminently a matter of public order' and approved a refusal to accept a change of surname from a Dutch name to a Hindu one.(17)
Meaning of 'public health or morals'
The objective of protecting public health would justify restrictions on freedom of movement by quarantine measures to prevent the spread of infectious diseases.(18) If a religious argument were to be made for the practise of female circumcision, this objective would justify its prohibition.(19) A Sikh construction worker could not resist an occupational safety regulation requiring him to wear a hard hat at work despite his religious obligation to wear a turban.(20) However,
... the concept of morals derives from many social, philosophical and religious traditions; consequently limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. (21)
The objective of protecting public morals was said, during drafting of the Covenant, to justify the creation of red light districts to restrict the freedom of movement of prostitutes practising in public.(22)
... public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities.(23)
In practice a reasonable claim that a limitation is imposed for the protection of public morals will usually be taken at face value by the UN Human Rights Committee.
Meaning of 'the rights and freedoms of others'
This requires an investigation of whose rights may be impaired, what those rights are and the status of those rights relative to the freedom at stake. The question is whether there is a recognised 'right' and/or 'freedom' which requires protection to the extent of denying the freedom to others. The sources for these 'rights and freedoms of others' are the Covenant itself, other relevant international human rights instruments and rights existing in Australian law. Protected rights include those of personality (eg reputation), security of the person (ie physical safety), private property and freedom from incitement to racial or religious hatred.(24)
In the interest of the protection of minorities pursuant to Art. 27, the State may create reserves and limit the freedom to reside in these areas to members of a certain group or to an indigenous people.(25)
3. Necessary
The third element of a justifiable restriction on a limitable freedom is the requirement that it be necessary to achieve the intended objective. The reference to necessity stems from the need to limit objectively the authority of a national legislature to interfere with a fundamental freedom(26). The concept of necessity imports the principle of proportionality.
Limitations may be applied only for those purposes for which they are prescribed and must be directly related and proportionate to the specific need on which they are predicated.(27)
The principle of proportionality requires a precise balancing of the intensity of a measure with the specific reason for interference. (28)
The test is whether the regime is the only one, or the least restrictive one, which will achieve the lawful objectives pursued. It must involve the least possible interference.
[I]t is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.(29)
France's Gayssot Act(30)
This 1990 amendment to the law on the freedom of the press makes it an offence to contest the existence of certain crimes against humanity on the basis of which Nazi leaders were tried and convicted by the International Military Tribunal at Nuremberg. No element of incitement as stipulated in Covenant article 20 needs to be established. The Act can only be justified, therefore, as a lawful limit on freedom of expression under article 19.3. Human Rights Committee members Ms Evatt, Mr Kretzmer and Mr Klein commented:
The power given to States parties under article 19, paragraph 3, to place restrictions on freedom of expression, must not be interpreted as license to prohibit unpopular speech, or speech which some sections of the population find offensive . The Covenant therefore stipulates that the purpose of protecting one of those values is not, of itself, sufficient reason to restrict expression. The restriction must be necessary to protect the given value .
The Gayssot Act is phrased in the widest language and would seem to prohibit publication of bona fide research connected with matters decided by the Nuremburg Tribunal. Even if the purpose of this prohibition is to protect the right to be free from incitement to anti-semitism, the restrictions imposed do not meet the proportionality test. They do not link liability to the intent of the author, nor to the tendency of the publication to incite to anti-semitism. Furthermore, the legitimate object of the law could certainly have been achieved by a less drastic provision that would not imply that the State party had attempted to turn historical truths and experiences into legislative dogma that may not be challenged, no matter what the object behind that challenge, nor its likely consequences.
In a separate concurring opinion, Mr Lallah commented:
What is significant in the Gayssot Act is that it appears to criminalize, in substance, any challenge to the conclusions and the verdict of the Nuremberg Tribunal. In its effects, the Act criminalizes the bare denial of historical facts.
The Committee noted, however, that its task was not to consider the Act in abstracto, but rather its application in the instant case. The Committee was united in holding that, in the conviction of the complainant, the requirements of article 19 were satisfied. For example, Mr Bhagwati stated:
. according to the State party, the necessary consequence of denial of extermination of Jews by asphyxiation in the gas chamber [by the complainant] was fuelling of anti-Semitic sentiment by the clearest suggestion that the myth of the gas chamber was a dishonest fabrication by the Jews and it was in fact so articulated by the author in his offending statement.
4. Non-discriminatory
Limitations must not operate without justification to restrict the enjoyment of the freedom in a discriminatory fashion. Covenant article 2.1 applies to all freedoms and their limitations, stipulating that the rights and freedoms in the Covenant are to be ensured to all 'without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status'.
Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.(31)
Not every differentiation of treatment will constitute discrimination. Different treatment will be acceptable in international law 'if the criteria for differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant'.(32)
5. Exceptional
A lawful limitation is one that applies in exceptional circumstances and does not impair the essence of the right or freedom being restricted.(33) The Human Rights Committee construes the freedom guarantees broadly and the limitations clauses strictly.
The right to freedom of expression is of paramount importance in any democratic society, and any restrictions to the exercise of this right must meet a strict test of justification.(34)
Limitations in Australian law
The Covenant is not directly implemented in Australia. It does not form part of Australian law. However, having been ratified by Australia, it is legally binding on Australia in international law.
Australian common law, however, does mirror the international law on freedoms and their limitations to some extent.
The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.(35)
For a thorough overview of Australian legislation, practice and case law through to the late 1980s on all fundamental freedoms refer to Law, Liberty and Australian Democracy by Beth Gaze and Melinda Jones. The following offers only a selective sample.
Freedom of movement
The High Court has declared laws restricting the free movement of people throughout Australia to be unconstitutional.(36) In Cole v Whitfield the Court said:
A constitutional guarantee of freedom of interstate intercourse, if it is to have substantial content, extends to a guarantee of personal freedom 'to pass to and fro among the States without burden, hindrance or restriction'.(37)
However, the High Court has also emphasised that the constitutional right to freedom of movement between the States is not absolute. Restrictions on movement are permissible if necessary for the promotion of public order, safety or morals.(38)
In several cases - 'relocation cases' - Australian courts have considered the extent to which the freedom of movement of a custodial (or 'residence') parent can be restricted to enable his or her children to maintain regular contact with the non-custodial parent. The Family Law Act 1975 (Cth) makes the welfare of the child paramount, but the Family Court and the High Court have stated that the 'paramount' consideration is not the 'sole' consideration.(39) Summarising the state of the authorities, Kirby J stated in 1999:
One of the objects of modern family law statutes . is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents.(40)
Freedom of religion
In 1943 the High Court considered the Constitution Section 116 prohibition on Commonwealth laws preventing the free exercise of religion.(41) The case involved a declaration made by the Governor-General under the National Security (Subversive Associations) Regulations during World War II that certain organisations including the Jehovah's Witnesses were prejudicing the defence of the Commonwealth by propagating doctrines which undermined the efficient prosecution of Australia's war effort. The Jehovah's Witnesses worship hall in Adelaide was seized.
The High Court held that the laws authorising the making of the declaration and the seizure of the premises did not breach Section 116 because Section 116 did not preclude laws prohibiting actions which, although undertaken in pursuit of religious convictions, were prejudicial to the war effort. Central to this decision was the view that an individual's freedom to act upon his or her religious beliefs is constrained by the right of other members of society to protection against 'unsocial actions or actions subversive of the community itself'. (42)
Freedom of expression
The High Court has recognised an implied constitutional right to freedom of political speech and discussion.(43) That freedom does not confer private rights; rather it confines legislative power.(44) It has successfully been used as a defence to defamation actions brought by politicians.(45) It will not invalidate a law enacted to satisfy some legitimate end if that law is compatible with the maintenance of representative and responsible government under the Constitution and is reasonably appropriate and adapted to achieving the legitimate end.(46)
Beyond the implied constitutional freedom of political speech, it is open to any legislature to enact legislation 'restricting or inhibiting' the broader freedom of expression.(47)
Racial vilification is unlawful nationally and in several States.(48)
Freedom of association
A NSW Supreme Court judge recently relied on the principle of freedom of association as one reason for refusing to restrain a local football competition from conducting an inquiry into allegations of misconduct by a team of Aboriginal players which could recommend its suspension from the competition. Justice Young said:
Bodies such as Group 19, which exist to promote sport in a locality, must generally be free to conduct their affairs informally, and the court will only become involved as, more or less, a last resort, otherwise the right of freedom of association held so dear by Australians would be thwarted.
As a general rule people who want to hold meetings should be allowed to hold them, otherwise the right of freedom of speech and association would be impinged.(49)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
The Covenant is scheduled to the Human Rights and Equal Opportunity Commission Act. This gives the Human Rights and Equal Opportunity Commission power to investigate complaints that rights and freedoms recognised in the Covenant have been violated by or on behalf of the Commonwealth or an authority of the Commonwealth but only in the exercise of a discretion or an abuse of power. Human rights complaints which cannot be resolved by conciliation do not proceed to a hearing and determination but may, after appropriate inquiry, be made the subject of a report to the Attorney-General for tabling in Parliament.
Where federal legislation requires Covenant rights to be set aside, the Commission can only advise the Parliament that the legislation should be amended. The Commission can also advise Parliament on action that should be taken to promote or improve compliance with the Covenant.(50) The Commission has no authority over the courts but is empowered to seek leave to intervene in proceedings which involve human rights issues.(51)
Endnotes
1. International Covenant on Civil and Political Rights (Covenant) article 5.1. (http://www1.umn.edu/humanrts/instree/b3ccpr.htm)
2. Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, N P Engel, 1993, page 379.
4. Contrast restrictions on the freedom of assembly which 'must not necessarily be set forth in law in the formal sense but may instead be undertaken independently by administrative authorities on the basis of general statutory authorization': Nowak, note 2, page 378.
5. UN Human Rights Committee, General Comment No. 27 (1999), paragraph 13 (http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/6c76e1b8ee1710e380256824005a10a9?Opendocument).
6. Nowak, note 2, page 209. Interpretations of equivalent provisions of the European Convention of Human Rights elaborate that any restriction on a person's rights must have a legal basis and a law which imposes such a limitation must be a law that is adequately accessible, so that the citizen has an indication of the circumstances of the legal rules applicable to a given case. Further, any law must be formulated with sufficient precision to enable the citizen to regulate his or her conduct. He or she must be able to foresee, to a degree that is reasonable in the circumstances, the consequences that a given action may entail: Sunday Times Case (1979-1980) 2 EHRR 245, paragraph 4.
7. R W Gauthier v Canada, Communication No. 633/1995, 5 May 1999, paragraphs 13.5 and 13.6. (http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/65d8b4f465596f1b80256782004b16f8?Opendocument)
9. L Peltonen v Finland, Communication No. 492/1992, 29 July 1994.
10. Karker v France, Communication No. 833/1998, 30 October 2000.
12. Nowak, note 2, page 327, indicates that the omission of the term 'ordre public' from article 18.3 'means that freedom of religion and belief may not be restricted for all of the reasons stemming from [this] concept . under French civil law but rather only to avoid disturbances to the order in the narrow sense'.
15. A Kivenmaa v Finland, Communication No. 412/1990, 10 June 1994.
17. Coeriel and Aurik v The Netherlands, Communication No. 453/1991, 9 December 1994.
19. Also justifying the prohibition of female genital mutilation would be the protection of the rights of girls to gender equality, privacy and physical integrity: Nowak, note 2, page 329.
20. Singh Bhinder v Canada, Communication No. 208/1986, 9 November 1989.
21. Human Rights Committee, General Comment No. 22 (1993), paragraph 8 (http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/9a30112c27d1167cc12563ed004d8f15?Opendocument).
23. L Hertzberg et al v Finland, Communication No. 61/1979, 2 April 1982, paragraph 10.3.
25. Nowak, note 2, page 217; confirmed in Sandra Lovelace v Canada, Communication No. 24/1977, 30 July 1981.
27. Human Rights Committee, General Comment No. 22 (1993), (see note 21), paragraph 8.
29. Human Rights Committee, General Comment No. 27 (1999), (see note 5), paragraph 14.
30. R Faurisson v France, Communication No. 550/1993, 16 December 1996. (http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/4c47b59ea48f7343802566f200352fea?Opendocument)
31. Human Rights Committee, General Comment No. 22 (1993), (see note 21), paragraph 8.
32. Human Rights Committee, General Comment No. 18 (1989) re non-discrimination, paragraph 13 (http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/3888b0541f8501c9c12563ed004b8d0e?Opendocument).
33. UN Human Rights Committee, General Comment No. 10 (1983) re article 19 on freedom of expression, paragraph 4 (http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/2bb2f14bf558182ac12563ed0048df17?Opendocument); General Comment No. 22 (1993) re article 18 on religious freedom, (see note 21), paragraph 8; General Comment No. 27 (1999) re article 12 on freedom of movement, (see note 5), paragraphs 2 and 13.
34. V P Laptsevich v Belarus, Communication No. 780/1997, 13 April 2000, paragraph 8.2. See also General Comment No. 22 (1993), (see note 21), paragraph 8.
35. Coco v R (1994) 179 CLR 427 at 437.
36. For example, in R v Smithers; ex parte Benson (1912) 16 CLR 99, the High Court was asked to rule on the constitutional validity of the Influx of Criminals Prevention Act 1903 (NSW). Benson had been convicted and imprisoned in Victoria for the offence of having insufficient lawful means of support. When he was released he travelled to Sydney in New South Wales to secure employment only to be arrested, charged and imprisoned there for the same 'vagrancy' offence. He argued that the NSW Act was invalid because it breached Sections 92 and 117 of the Commonwealth Constitution. The Court held that the Act impaired his right to move between States.
37. (1988) 165 CLR 360, at page 393.
38. See Justice Mason in Gerhardy v Brown (1985) 57 ALR 472, at pages 495-496. The test for the lawfulness of restrictions on freedom of interstate commerce was stated in various ways in Cunliffe v The Commonwealth (1994) 182 CLR 272.
39. In the Matter of B and B (Family Court of Australia, Full Court, 1996); AIF v AMS [1999] HCA 26 (17 June 1999, see note 40); P Easteal, J Behrens and L Young, "Relocation Decisions in Canberra and Perth: A Blurry Snapshot" (2000) 14(3) Australian Journal of Family Law 234.
40. AIF v AMS [1999] HCA 26 (17 June 1999) (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/1999/26.html?query=title+%28+%22aif+v+am%22+%29).
41. Adelaide Company of Jehovah's Witnesses v The Commonwealth (1943) 67 CLR 116.
42. See Justice Starke at page 155. Tasmania is the only State to provide for religious freedom in its Constitution. Section 46 of the Constitution Act 1934 (Tas), which has never been judicially considered, provides (1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. (2) No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office.
43. Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 (http://www.austlii.edu.au/au/cases/cth/high_ct/177clr106.html); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (http://www.austlii.edu.au/au/cases/cth/high_ct/177clr1.html).
44. Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/unrep324.html?query=title+%28+%22lange%22+%29).
45. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v WA Newspapers (1994) 182 CLR 211.
46. Lange, note 44, at page 108.
47. Justice French in Michael Brown & Ors v Members of the Classification Review Board of the Office of Film and Literature [1998] 319 FCA (24 March 1998) (http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/319.html). In this case the Chief Censor banned a 1995 edition of the La Trobe University student newspaper Rabelais because it instructed readers 'in matters of crime and violence' in an article on shoplifting. The Federal Court upheld the ban in 1998 and the High Court refused leave to appeal.
48. The Racial Hatred Act 1995 (Cth) amended the Racial Discrimination Act 1975 (Cth), www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/ inserting a new Part IIA (sections 18B-F inclusive). Anti-Discrimination Act 1977 (NSW), Division 3A 'Racial Vilification' (enacted in 1989). Criminal Code 1913 (WA), Chapter XI 'Racist Harassment and Incitement to Racial Hatred' (sections 76-80 inclusive) (enacted in 1990). Racial Vilification Act 1996 (SA); also section 37 of the Wrongs Act 1936 (SA) which creates the tort of racial victimisation. Discrimination Act 1991 (ACT), sections 65-67 inclusive.
49. Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 Rugby League General Committee [1999] NSWSC 293. http://www.austlii.edu.au/au/cases/nsw/supreme_ct/1999/293.html
50. Reports relating to fundamental freedoms include Article 18: Freedom of religion and belief (1998) (http://www.humanrights.gov.au/human_rights/religion/index.html) and Territorial Limits: Norfolk Island's Immigration Act and human rights (1999) (http://www.humanrights.gov.au/human_rights/norfolk/index.html).
51. Human Rights and Equal Opportunity Commission Act 1986 (Cth), section 11(1)(o).
Select bibliography
Beth Gaze and Melinda Jones, Law, Liberty and Australian Democracy, Law Book Co., 1990.
Jeremy Jones, 'Holocaust Denial - "Clear and Present" Racial Vilification' (http://www.austlii.edu.au/au/journals/AJHR/1994/10.html), Kathleen Mahoney, 'Hate Vilification Legislation And Freedom Of Expression - Where Is The Balance?' (http://www.austlii.edu.au/au/journals/AJHR/1994/1.html) and other articles in (1994) Volume 1 Number 1 Australian Journal of Human Rights.
Joint Standing Committee on the National Capital and External Territories, A Right to Protest, Commonwealth Parliament, May 1997.
Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, N P Engel, 1993.
Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, Oxford University Press, 2000.
Cases
For cases challenging restrictions on freedom of expression from other jurisdictions including the European Convention on Human Rights, the Canadian Charter of Rights and Freedoms and the US Bill of Rights, including hate propaganda cases, see http://www.hrcr.org/safrica/expression/
For cases challenging restrictions on freedom of association from other jurisdictions including the European Convention on Human Rights and the Canadian Charter of Rights and Freedoms see http://www.hrcr.org/safrica/freedom_assoc/
For cases challenging restrictions on freedom of movement and residence from other jurisdictions including the European Convention on Human Rights and the Canadian Charter of Rights and Freedoms see http:
For cases challenging restrictions on freedom of religion and belief under the European Convention on Human Rights see http://www.hrcr.org/safrica/religion/index.html
Websites
UN Human Rights Committee - http://www.unhchr.ch/html/menu2/6/hrc.htm
International Labour Organization - www.ilo.org/index.htm
Disclaimer: This document provides general information only on the subject matter covered. The Human Rights and Equal Opportunity Commission does not assume a duty of care with respect to this information. It is not intended, nor should it be relied on, as a substitute for legal or other professional advice. If required, it is recommended that the reader obtain independent legal advice. The information contained in this document may be amended from time to time. Copyright: Copyright in this document is owned by the Human Rights and Equal Opportunity Commission, 2001. The contents may be reproduced freely with acknowledgment. Date of last amendment: April 2001. Contributing authors: Meredith Wilkie, Kate Eastman. ISSN Number: 1442-0813.
Last updated 08 March 2006.