Where does the right to freedom of opinion and expression come from?
Australia is a party to seven core international human rights treaties.
The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR).
What is the scope of the right to freedom of opinion and expression?
The right in article 19(1) to hold opinions without interference cannot be subject to any exception or restriction.
The right in article 19(2) protects freedom of expression in any medium, for example written and oral communications,
the media, public protest, broadcasting, artistic works and commercial advertising.
The right protects not only favourable information or ideas, but also unpopular ideas including those that may offend or shock (subject to limitations).
Freedom of expression carries with it special responsibilities, and may be restricted on several grounds, discussed further below. ♦ more... www.ag.gov.au
Victorian Charter of Human Rights and Responsibilities Act 2006
Human rights are protected under the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter Act), which came into full effect on 1 January 2008.
The Charter Act places specific legal obligations on public authorities regarding human rights. A definition of what constitutes a public authority is found in section 4 of the Charter Act.
What is a public official?
A public official is:
an entity established by statute that has functions of a public nature
an organisation that is not part of government, but perform functions of a public nature on behalf of government (these may be non-government or private sector organisations),Victoria Police, local councils and ministers.
The definition includes a list of factors that assist to determine whether a function is of a public nature.
The test looks to the nature of the services provided by an organisation.
The Charter Act intends that a broad definition of public authority be applied.
CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 - SECT 7
Human rights—what they are and when they may be limited
(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a
free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
(3) Nothing in this Charter gives a person, entity or public authority a right to limit
(to a greater extent than is provided for in this Charter) or destroy the human rights of any person.
Maria felt pressured to sign an NDA after being sexually harassed. Now she’s speaking out against the practice
comment:
The following article about NDA's highlights some of the problems also
encountered in Deeds of Settlement and Release.
Essentially the defendant (the catholic church etc.) use money to completely silence the plaintiff (the survivor of sex abuse).
Its interesting to see how this tool has grown over time because it is so useful for the defendant
to protect their reputation and prevent information reaching the public.
November 29, 2024
Hopes are rising that a push for change in Victoria means victims will no longer be ‘badgered into silence’
Maria* says she did everything right. She studied hard at school, got a degree and then looked to climb the corporate ladder.
She found a job at an internationally recognised manufacturer, in a role in which she says she excelled at and loved.
Then, Maria says, she was sexually harassed by a male colleague.
Within six months, Maria says she was forced out of her job and pressured into signing a non-disclosure agreement (NDA)
as she settled her complaint with the company, for which she received some compensation.
The strict terms of the NDA meant Maria couldn’t speak to anyone about the alleged harassment.
She couldn’t tell her former colleagues or prospective employers why she left the company,
or account for the gap in her resume caused by her needing time off to deal with her mental health struggles triggered by the alleged harassment.
“I couldn’t find another job in the industry, even when I’ve had very good interviews, because I know people talk.
I have heard people talk about me, my story – stories they shouldn’t even know – and I can’t say anything,” she tells Guardian Australia.
“I feel like I’m being punished for something that happened to me.”
The use of NDAs to cover up sexual harassment became widely known after the #MeToo movement in 2017,
particularly in cases involving the disgraced Hollywood producer Harvey Weinstein.
But less is known about their use in Australia.
Research by lawyers from the Human Rights Law Centre (HRLC) and the Redfern Legal Centre, published this year by the University of Sydney,
found NDAs were considered “standard practice” in sexual harassment cases.
It found 75% of legal practitioners have never resolved a sexual harassment settlement without including one.
“Every single solicitor said to us, ‘This is standard, this is what everyone does,
this is how you resolve a sexual harassment case’,” says Regina Featherstone, a co-author of the report.
“This acceptance means lawyers are essentially making decisions for their clients without even considering what they want or need.”
However, a shift is under way. Victoria has become the first Australian state to commit to restricting the use of NDAs in sexual harassment cases.
Others are expected to follow.
Maria, who has requested anonymity due to the legal risks of speaking out about her agreement, says she can no longer stay silent.
“I’m ashamed that we live in a society where this is commonplace,” Maria says.
“Victims are badgered into silence, pressured into signing these agreements because they have no other option.
“Once you’ve signed, you live in fear for the rest of your life.”
From trade secrets to sexual harassment
An NDA, or a confidentiality agreement, is a legal contract designed to protect confidential information. It may also include non-disparagement clauses.
Jeffrey Gordon, a lecturer at the University of Sydney Law School, said the agreements were initially used to
protect trade secrets and commercially sensitive information, such as Coca-Cola’s recipe, and became increasingly popular in Silicon Valley during the 1970s tech boom.
“NDAs are pernicious – if they work, we don’t know about it,” he says.
Gordon believes they fail victims of harassment by preventing the sharing of experiences, which makes it harder for them to process their trauma.
“The other thing that they do, which is really problematic, is they fail to protect future victims.
So folks who are unaware of the wrongdoing of a particular individual, are then heading into the lion’s den without any knowledge of their history,” he says.
Featherstone says the lack of transparency also makes it difficult to gauge the true prevalence of sexual harassment in workplaces.
She says the best estimate comes from a 2022 survey by the Australian Human Rights Commission (AHRC),
which found one in three people experienced sexual harassment at work over a five-year period. Only 18% of these incidents were reported.
When the AHRC was conducting its landmark Respect@Work inquiry, it called on employers to temporarily waive NDAs
so survivors could come forward anonymously. Only 39 companies agreed.