These rights are closely related as they both provide for a person’s personal liberty of thought, speech and movement which is essential in realising other fundamental rights such as:

  • the right to self-determination
  • the right to freedom of thought, conscience and religion or belief
  • the right to a fair hearing
  • the right to take part in public life
  • the right to liberty

They are relevant to the liability of a defendant, as well as their rights during proceedings and once sentenced.


Freedom of Expression

Section 21 of the Act provides for the right to freedom of expression, stating every person has the right to hold an opinion without interference. This is considered a fundamental component of an individual’s privacy, requiring absolute protection without external interference. Section 21 also upholds the right to seek, receive and impart information and ideas orally, in writing, in print, by way of art, or in another medium, within or outside of Queensland.

Victorian precedents hold that this right is subordinate to the right to a fair trial. That is, freedom of media expression may be temporarily curtailed if this is necessary to ensure a fair trial.

In other jurisdictions defendants have sought to invoke their right to freedom of expression as a defence to criminal charges against them. For example, in the Victorian case Magee v Delaney (2012) 39 VR 50 a defendant charged with willful damage for painting over an advertisement claimed he did so under his right to freedom of expression to express his disagreement with commercial advertising. However, the court rejected this line of argument, stating the right does not extend to criminal acts.  Another Victorian case, Fraser v Walker [2015] VCC 1911, also found the right is not a defence to charges such as obscene, indecent or threatening language.

The right to freedom of expression has been relied on in other jurisdictions to ensure prisoners’ rights are upheld in custody. For example, in Haigh v Ryan [2018] VSC 474 a refusal to allow a prisoner access to tarot cards was found to breach this right, and such the court overturned the prison administration’s decision. Freedom of expression can only be restricted for protection of national security, public order, public health or public morality, none of which were at risk in this case.


Freedom of Association

Section 22 provides for the right of peaceful assembly and freedom of association. This provision protects the right of citizen’s to meet, join and form groups. It covers both the preparing for and conducting of the assembly by the organisers and the participation in the assembly. While it is important for political purposes and trade unions, it extends to all forms of association with others. It includes the freedom to choose between existing organisations and form new ones.

Not every assembly of individuals is protected by this right. For example, consorting laws limit the freedom of association of offender’s involved in organised crime by making it an offence for them to associate or communicate with certain people, or attend at a certain place. This predominantly occurs under control orders issued pursuant to the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) with the aim of protecting the public by disrupting individual’s involvement in criminal activity. The explanatory notes of the Act say curtailing the freedom of association for this reason is a justified breach of the right, and that there are exceptions which appropriately allow members to participate in ordinary civic life.

This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!