UN Human Rights Committee Finds Australia in Breach of Right to Freedom of Expression; Comments on Obligations of States and Territories

Coleman v Australia, HRC, Communication No 1157/2003, UN Doc CCPR/C/87/D/1157/2003 (10 August 2006)

In a decision with important ramifications for the human rights obligations of federal, state and local governments and officials, the UN Human Rights Committee (‘Committee’) has concluded that the application of a Queensland law and a Townsville bylaw impermissibly restricted the complainant’s right to freedom of expression, placing Australian breach of its obligations under the ICCPR.

The complainant, Patrick Coleman, was charged, convicted and fined under Townsville City Council Local Law No 39 for ‘taking part in a public address in a pedestrian mall without a permit’ and s 120(1) of the Police Powers and Responsibilities Act 1997 (Qld) for obstructing police.  The charges related to two public addresses delivered by Mr Coleman in 1998 and 1999 in a pedestrian mall on issues such as bills of rights, land rights and freedom of speech.  The content and delivery of the addresses was not threatening or unduly disruptive.  Mr Coleman did not, however, obtain a permit for either address and refused to voluntarily accompany police when he was charged with this offence.  Mr Coleman was initially convicted in the Magistrates’ Court and this conviction was subsequently upheld by the Supreme Court of Queensland and the Queensland Court of Appeal.  Leave to appeal to the High Court was denied.  In late 1999, Mr Coleman was imprisoned for five days for non-payment of the fine.

Mr Coleman’s complaint to the Committee contended, among other things, that the arresting police officer, Townsville City Council and the State of Queenslandhad violated the following ICCPR rights:

  • his right to freedom of expression under art 19;
  • his right to freedom of assembly under art 21; and
  • his right to freedom from arbitrary detention under art 9.

In response, the Australian Government submitted that the complaint was inadmissible on a number of grounds, including that it was directed against persons and entities that are not States parties to the ICCPR.  The Committee rejected this submission, stating that pursuant to ‘ordinary rules of State responsibility’ and ‘in light of art 50’ of the ICCPR (which provides that ‘the Covenant extends to all parts of federal states without limitations or exceptions’), the ‘acts and omissions of constituent political units and their officers are imputable to Australia’.  This jurisprudence is consistent with art 27 of the Vienna Convention on the Law of Treaties and the Committee’s own General Comment 31, which provide, in effect, that all branches of government (legislative, executive and judicial) and other public or governmental authorities, at whatever level (national, state or local) must act to respect, protect and fulfill human rights.

On the merits, the Australian Government contended that:

  • in respect of art 19, the restrictions on freedom of speech imposed by the requirement for a permit were reasonable, proportionate and necessary for public order and amenity;
  • in respect of art 21, an ‘assembly’ requires more than one person and the complainant was not thereby protected; and
  • in respect of art 9, the detention of Mr Coleman was the result of a court order and was not unreasonable, disproportionate or capricious.

After considering all the material and submissions, the Committee made the following conclusions.

First, the right to freedom of assembly under art 21 extends only to gatherings of people, and does not afford protection to a person ‘acting alone’.  Mr Coleman’s claim on this ground was therefore dismissed.

Second, Mr Coleman’s arrest, conviction, sentence and detention for delivering a public address amounted to a clear violation of his right to freedom of expression under art 19.  This having been established, the onus then shifted to Australia to demonstrate that the violation was necessary for a permissible purpose under art 19(3), including protecting the rights or reputations of others or maintaining public order.  The Committee found that while a permit system such as that which was operating is not, prima facie, impermissible, it must strike an appropriate balance between the individual’s freedom of speech and the general interest in public order.  In the present case, there was no evidence that Mr Coleman’s speech or conduct was threatening, unduly disruptive or in any way detrimental to public order.  In this context, the fine and imprisonment was disproportionate, not a permissible limitation under art 19(3), and therefore a violation of the right to freedom of expression.

Having found a violation of art 19, the Committee did not consider it necessary to address the merits of Mr Coleman’s claim in respect of arbitrary detention pursuant to art 9.

The Committee concluded that, consistent with the obligation to provide an effective remedy for human rights violations under art 2(3) of the ICCPR, Australia is obliged to quash the convictions against Mr Coleman, reimburse the fine and any court costs, and pay compensation for the detention associated with the violation.

The Australian Government is required to advise the Committee, within 90 days, of the measures taken to give effect to the Committee’s views.

The decision is available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb31fe728f09bc5dc12571cd0048757c?Opendocument

MichelleBennettDemocratic Freedoms