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RULE OF LAW INSTITUTE OF AUSTRALIA Freedom of Expression & the Rule of Law in Australia Contents The Rule of Law and Freedom of Speech 2 Express and Implied Rights 3 The Lange Test 4 Coleman v Power [2004] HCA 39 5 Offensive Language and Freedom of Speech 6 Monis v the Queen [2013] HCA 4 8 Adelaide Street Preachers 9 The Right to Assemble 10 When Assemblies Go Bad 11 Public Assemblies in NSW 12 Public Assemblies in QLD 14 Greenpeace Coal Loader Protests 16 Occupy Martin Place 17 NSW Police Powers: ‘Move on’ Directions 18 The Rule of Law Institute of Australia is an independent not-for-profit organisation which promotes discussion of rule of law issues in Australia. It seeks to uphold transparency and accountability in government and strongly supports the presumption of innocence, independence of the judiciary and procedural fairness in the Australian legal system. For further information visit our website: www.ruleoflaw.org.au Have a question about this resource or a rule of law issue? Ask us on Facebook or Twitter: ‘Rule of Law Institute of Australia’ / @RoLAustralia The Rule of Law and Freedom of Speech he rule of law provides the best in ensuring people can express their way for rights and freedoms to opinion about government, and the T be protected. All rights come way the country is governed. with responsibilities, which means following the law. There is the view in the community that we have a legal right to free International agreements such as speech in Australia. This is not true the Universal Declaration of Human from a legal point of view since Rights (UDHR) promote human rights the law controls different types of standards. The UDHR suggests that speech, and even defines threats of the rule of law and legal processes violence or offensive behaviour as are the best way to protect human criminal offences. rights. The High Court of Australia has found a narrow protection for “free “Whereas it is essential, if man is not to be compelled to have recourse, as a last speech” in the Australian Constitution resort, to rebellion against tyranny and in the form of an implied freedom oppression, that human rights should be of political communication. This is protected by the rule of law,” narrower than what people commonly understand as free speech. - UDHR (1948) This freedom is not a express right Human rights in Australia are in the Australian Constitution that is protected by formal legal processes given to people individually, but a which allow: freedom that acts as a break on the government making laws that restrict 1) a legal dispute should be resolved people’s ability to discuss political when the law is broken matters in public. 2) the law can be reformed through The Lange Test is a test the High democratic processes Court has created to decide What is Freedom of Expression whether a law is incompatible with Freedom of expression is a broad the Australian Constitution and the category of rights and freedoms freedom of political communication which relate to people being able to which it implies. express their ideas and opinions. The Right to Assemble Freedom of Speech The second section of this book deals Freedom of speech and the right with the right to assemble (see page to assemble are central aspects 10), which is an important aspect of of freedom of expression, and are people being able to exercise their particularly important in maintaining freedom of political communication. Freedom of Expression and te Rule of Law in Australia in Law of Expression and te Rule Freedom of the rule of law. These rights and freedoms are Freedom of speech means to be important in ensuring the rule of law free to speak or write your ideas or is maintained and that citizens can 2 opinions, and is often instrumental participate in democracy. Express and Implied Rights The law defines people’s rights Article 6.1 of the International and freedoms and allows them to Covenant on Civil and Political be protected. This involves courts Rights: enforcing rights and deciding to what extent a particular freedom Every human being has the should be protected. inherent right to life. This right shall be protected by law. No There are two ways in which rights one shall be arbitrarily deprived are written into law: of his [or her] life. Express rights Section 291 - Killing of a human Rights which are written into law being unlawful - Criminal Code and are clearly defined as ‘right to’ 1899 (QLD): or ‘freedom of’ something, or right not to be treated in a certain way. It is unlawful to kill any person unless such killing is authorised Implied rights or ju stified or excused by law. Rights which are not defined in Can we assume people have the law, but exist because they are an right to not be killed because assumption on which a law and the the law makes murder a criminal legal system are based. offence? Questions Label the following statements as express or implied rights. If implied, what right does it imply? a) Everyone has the right to recognition as a person before the law (Article 6 - UDHR) b) Whosoever commits The principles in the larceny, or any indictable What is pyramid are essential parts of the rule of law offence by this Act made the Rule in Australia. punishable like larceny, shall, All are important in promoting con dence except in the cases hereinafter in Government, and otherwise provided for, be of Law? protecting the rights of individuals. liable to imprisonment for five Operation of years.(s117 Crimes Act 1900 the rule of law promotes a (NSW)) stable economy and happy c) ‘The employee may citizens. refuse to work additional hours...if they are Australia in Law of Expression and the Rule Freedom of unreasonable.’ (Fair Work Act 2009 (Cth)) 3 The separation of powers in The rule of law is a legal concept Australia ensures that power is which requires the use of power to LAW balanced between the three arms be controlled by the law to ensure GOVERNMENT of government and that there are equality before the law. checks on their use of power. Maintaining the rule of law is often The Judiciary is especially noted as being the best way to important in ensuring the integrity preserve human rights. of the Australian Constitution and that the Legislature and Executive If people believe the law is unjust, act according to the law. they may not want to follow it. Ideally people should feel the law Executive is just and want to follow it. Judiciary LAW Legislature The process of changing the law through democratic processes LAW ensures that the law remains up to LAW LAW date with the needs of society. The Lange Test In Lange v Australian Broadcasting Q1. Does the law Commission [1997] HCA 25 the burden freedom High Court established a test for of political deciding if a law interferes with communication? the implied freedom of political communication in the Australian Constitution. The test asks the following: YES NO 1) Does the law effectively burden freedom of communication about go to second challenge government or political matters? question dismissed 2) If it does, with reference to the purpose of the given law, is it reasonably appropriate and compatible with the Australian Q2. Is the law reasonably Constitution’s ideas about appropriate and compatible responsible government? with the Australian In practice the Lange Test is Constitutions ideas about used to decide whether a law is responsible government? incompatible with the Australian Constitution. A law which is found to be incompatible in whole or part can be struck off or declared invalid. When this occurs the law is no longer a law. A law can also be read down to clarify its meaning so it is not incompatible with the Australian Constitution. NO YES If the court finds that the answer to court makes challenge Q1 is no, it will not consider Q2 and an order to... dismissed will dismiss the challenge. If the answer to Q2 is yes, the court will dismiss the challenge. The law is struck off The law is “read down” so because it is incompatible that it is not incompatible Freedom of Expression and te Rule of Law in Australia in Law of Expression and te Rule Freedom of with the with the Australian Australian Constitution Constitution 4 Coleman v Power [2004] HCA 39 Student Patrick Coleman was charged and Q1. Does the law burden freedom convicted under the Vagrants Gaming of political and Other Offences Act (Qld) for handing communication? out leaflets in Townsville Mall stating “Get to know your corrupt type coppers” and identifying local police officer Constable YES NO Brendan Power as one of the “slimy go to second challenge lying bastards”. He was also convicted of question dismissed assaulting and obstructing a police officer after a scuffle between him and Constable Power. Q2. Is the law reasonably appropriate and compatible with the Australian The High Court found that criticising Constitutions ideas about responsible government? police is a valid use of the freedom of political communication and dismissed the charge. Given the wide power of police over citizens, the High Court read down the Vagrants Act so that it did not apply to political communication. This meant NO YES that Section 7 remained law, and the case court makes challenge established a precedent which all lower an order to... dismissed courts in Queensland would be required to follow in cases similar to Coleman v Power. The law is struck off The law is “read down” so because it is incompatible that it is not incompatible with the with the Australian The High Court did not interfere with Mr Australian Constitution Constitution Coleman’s conviction for assault and obstructing police.
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