Section 15 - Freedom of expression

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive
and impart information and ideas of all kinds, whether within or outside Victoria and whether —

(a) orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by him or her.

(3) Special duties and responsibilities are attached to the right of freedom of expression and the
right may be subject to lawful restrictions reasonably necessary—

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

Section 15 establishes a number of rights relating to freedom of expression. It protects:

  • the right to hold an opinion without interference; and
  • the right to seek, receive and impart both information and ‘ideas of all kinds’ whether within or outside of Victoria, and whether orally, in writing, in print, by way of art or in another medium.


The right to seek, receive and impart information and ideas is subject to limitations that come within either s. 15(3) or s. 7 (or both). Limitations on the right to freedom of expression are discussed below.


Why free speech?


There are many rationales advanced for why free speech is worthy of protection. A lengthy examination of the various rationales is outside the scope of these Charter Guidelines. They largely centre around the promotion of self-fulfilment of individuals in society, notions that ‘truth’ will be revealed when there is vigorous debate and the functioning of the democratic process. For example, one view taken by the UK courts is that:


‘… freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.’ 122


In other words, freedom of expression is an essential foundation of a democratic society.


The Charter establishes the right to freedom of expression in qualified terms. The scope of the right is discussed in the following section.


The right to hold an opinion without interference


The right to hold an opinion without interference protects a person’s right to have an opinion free of interference by the state. It does not apply once a person manifests or communicates their opinion (in speech, writing or action). Manifesting or communicating one’s opinion is governed by s. 15(2), that is, the right to freedom of expression.


An example of an activity that interferes with the right to hold an opinion without interference would be ‘brainwashing’ by a public authority; that is, compelling or coercing a person to change his or her opinion or adopt a particular belief.

For this right to be interfered with, a person’s opinion must be somehow involuntarily influenced. It would not appear to be sufficient merely to seek to influence opinion, for example, by mass-media propaganda.123 By contrast, a legislative provision that penalises or disadvantages a person on the basis of his or her opinion may interfere with this right.


The right to freedom of expression


What expression?


Section 15 protects a right to freedom of political, artistic and commercial expression in any medium. Examples of expression covered by this section are:

  • written and oral communications;
  • television programs;
  • commercial advertising;
  • broadcasting, film and video;
  • pictures;
  • sign language;
  • dress; and
  • images.


You should note that the right to freedom of expression:

  • protects not only favourable information or ideas but also political protest or criticism124 and unpopular ideas, including those that ‘offend, shock or disturb’ because ‘such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society’;125
  • is not restricted to communicating one’s own views and ideas – it simply refers to the right to communicate information and opinions whether or not these are personally held; and
  • encompasses a freedom not to express (for example, to say nothing or not to say certain things).126 For example, the right protects a person from saying things that may be repugnant to their personal beliefs.


What is protected?


Section 15 establishes the freedom to seek, receive and impart both information and ideas of all kinds.


‘Impart’


An example of a case where freedom to impart information was breached involved the confiscation of leaflets and a subsequent fine pursuant to legislation which required all publishers of periodicals to include certain information in publications. The UN Human Rights Committee said (in a case against the Government of Belarus) that the applicant’s freedom to impart information had been breached.127

‘Seek and receive’


An important manner in which the right to seek and receive information is realised is through legislation providing for freedom of information. However, s. 15 does not create a right to freedom of information.


For example, s. 15 may be interfered with by restrictions on access to public libraries or public internet terminals in libraries. There is no obligation to provide either under the Charter, but if they are provided there must be no restriction in relation to access to public libraries or public internet terminals in libraries that cannot be justified either under the special limitations to be found in s. 15(3) or under the general limitation of s. 7.

 

Footnotes

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122 R v. Secretary of State for the Home Department, ex p Simms [1999] 3 All ER 400.


123 Sarah Joseph, Jenny Schultz, Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, (OUP, 2nd edn, 2000) 518.

124 Hopkinson v. Police [2004] 3 NZLR. 704.


125 Handyside v. UK (1976) 24 Eur Court HR (ser A); (1979–80) 1EHRR 737.


126 National Bank of Canada v. Retail Clerks’ Union [1984] 1 SCR 269.


127 Laptsevich v. Belarus, Human Rights Committee, Communication No. 780/1997, UN Doc. CCPR/C/68/D/780/1997 (13 April 2000).