Last updated 1 December 2020
Section 21 of the Human Rights Act 2019 (Qld) (Human Rights Act) protects two distinct rights:
- the right of individuals to hold opinions without interference
- the right of every person to seek, receive and impart information and ideas regardless of the means of communication.
Subsection 21(1) protects the right to hold an opinion without interference, which is considered a fundamental component of a person’s right to privacy. An ‘opinion’ is likely to be interpreted broadly and include political, academic, personal, moral, religious and other opinions.
Subsection 21(2) protects the freedom of expression including the rights to express or transmit information, opinion or belief. A person may exercise this right by seeking, receiving and imparting information and ideas within or outside Queensland. A broad range of mediums of expression are explicitly protected including oral, written, print and artistic mediums.
The right to hold and express an opinion under s 21 are integral to the exercise of other rights under the Human Rights Act, such as cultural rights (ss 27, 28 Human Rights Act) and the freedom of thought, conscience and religion (s 20 Human Rights Act).
The right in s 21 does not contain any express internal limitation. However, the right is likely to be limited in similar ways to the implied constitutional right of freedom of political communication.
In Australia, there is an implied constitutional right to freedom of political communication, which operates in relation to political communications only. The right to freedom of expression in s 21 is a broader right. It extends to the expression of, or access to, others’ beliefs or opinions, regardless of any political connection. However, as with the constitutional right, the right to freedom of expression may be limited. Relevantly, it has been accepted that the constitutional right may be limited to the right to be free from racial vilification and abuse. Similarly, it is likely the right in s 21 will be limited to expressions that do not impinge on the rights of others.
The right to freedom of expression will also be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits, which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The right to freedom of expression may be engaged:
- during a review of public entity decision making (e.g. the review of a decision by a local council to ban a rate payer from accessing council facilities after they made thousands of written complaints)
- in discrimination complaints, where it is argued that the Anti-Discrimination Act 1991 (Qld) should be interpreted as giving the right to freedom of expression
- during a review of how a professional regulatory authority has responded to a registered practitioner making controversial statements in public (e.g. where a Queensland Civil and Administrative Tribunal review is lodged against a disciplinary decision against a solicitor or psychologist for comments made in their private life)
- in the decision of a warrant of possession application to permit an eviction from public housing (e.g. where the grounds for eviction include objectionable behaviour by the tenant through words and opinions directed at neighbours).
These examples have been adapted from Australian cases. They are provided by way of example only, and are not a substitute for legal advice.