this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

The winds of change: The impact of the charter of rights

Cover Story

Cite as: (2007) 81(12) LIJ, p. 42

The Charter of Rights, due to come into effect on 1 January 2008, may have a wider impact on freedom of expression than most people believe.

By Michelle Harper

The Charter of Rights, due to come into effect on 1 January 2008, may have a wider impact on freedom of expression than most people believe.
By Michelle Harper

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) imposes human rights obligations on public authorities with effect from 1 January 2008. One of the rights provided for in s15 is freedom of expression by way of art.

The Charter confers a number of civil and political human rights “primarily derive[d] from the International Covenant on Civil and Political Rights 1966”,[1] including a right to freedom of expression by way of art. Section 15(2), contained in Part 2 of the Charter, provides that “[e]very 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 ... (d) by way of art; or (e) in another medium chosen by him or her”.

Consistent with the full title of the Charter, this right to freedom of expression carries with it a responsibility so that under s15(3) “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”. However, under s7(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, among others, any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Section 32(2) of the Charter provides that international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision. The Explanatory Memorandum states that “[i]t is intended that [s32](2) will operate as a guide ... in interpreting the meaning and scope of the human rights in Part 2 ...”[2]Of particular relevance will be “[d]ecisions of the International Court of Justice, European Court of Justice, Inter-American Court of Human Rights and United Nations treaty monitoring bodies including the Human Rights Committee”.[3]

Obligation on public authorities

Obligations on public authorities are imposed under Division 4 of Part 3 which, by virtue of s2(2), comes into operation on 1 January 2008. Section 38(1) provides that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right unless, under s38(2), by law the public authority could not reasonably have acted differently or made a different decision.

Of particular relevance to artists who wish to display their work in public, local councils are considered to be public authorities under s4(1)(e).

The Charter does not affect any other right that a person may have to seek any relief or remedy in respect of an act or decision of a public authority by virtue of s39(2), including the right to seek damages under s39(4). While s38(1) provides that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right, s39(3) provides that a person is not entitled to be awarded any damages because of a breach of the Charter.

How might a local council breach an artist’s human rights?

Essentially, it would seem that s15 may operate to enhance an artist’s right to display their art in public in the face of a local council’s opposition to the subject matter of the art. It may be unlawful for a local council to refuse to grant a planning permit or to fine an artist for failing to obtain a planning permit without having regard to the artist’s right to freedom of expression. It is interesting to look at such a decision made recently by a local council to examine how the application of the artist’s new right to freedom of expression by way of art may have altered the outcome.

Displaying The Finger to one’s neighbour

The dispute occurred in a green wedge shire on the north-east outskirts of Melbourne renowned for the retention of both its natural environment and its artistic community. In January 2007, the Nillumbik Shire Council (the Council) decided to fine an artist for failing to obtain a planning permit for a sculpture entitled The Finger (the Council’s decision).

In January 2005, the Council granted a planning permit to an artist for a new dwelling and swimming pool with related works and vegetation removal on the artist’s block of land in North Warrandyte. The artist’s back fence neighbour, in conjunction with other residents and community groups, made an application to the Victorian Civil and Administrative Tribunal (VCAT) to review the decision on the basis that the artist’s new home would “cause extensive removal of native vegetation and overdevelopment of the site”.[4]

The artist eventually succeeded in obtaining the planning permit, with minor additions, and built the new dwelling. In addition, the artist created a 4.2-metre high 1.5-tonne sculpture “of a clasped fist with the middle finger extended”[5] called The Finger,[6] which in mid 2006 was placed in his backyard in full view of the neighbour’s property. The external shape of The Finger could be lit up at night. According to the Diamond Valley Leader,[7] “[t]he artist denied his sculpture was aimed at his neighbours, saying: ‘It is a work of art – it is nothing else ... I would imagine people would say I have a bee in my bonnet over the fact that I lost $20,000 and 12 months to get a planning permit ... Every artist does their work – whether it is an artwork or a painting – to express themselves. I am expressing myself’”. The neighbour, however, viewed the sculpture as harassment, stating: “My motivation ... has been to ensure minimal impact of building on the environment”.[8]

The Council considered that The Finger was a “structure” and ordered the artist to remove it by 16 January 2007 on the basis that the artist did not have a planning permit. When the artist had not removed it by the due date, the Council issued an infringement notice of $537 and “... expected it to be paid within 28 days”.[9]

Legal issues raised by The Finger

Under current law, it is clear that the Council has power to deny a planning permit for the sculpture and to prosecute for failing to obtain a planning permit.[10]The artist’s land is in a low density residential zone under the Nillumbik Planning Scheme and under s2 of cl 32.03-1 of that scheme, a permit is required for “any other use not in Section 1 or 3”. Needless to say, a sculpture is not a use listed in either s1, for which no permit is required, or s3 which lists prohibited uses of the land.

If this matter arose after the start of the Charter with regard to public authorities, would the Council’s decision be contrary to s15? The human right provided for under s15(2) must be counterbalanced with lawful restrictions reasonably necessary to respect the rights and reputation of other persons under s15(3). The erection of The Finger in the artist’s backyard neatly highlights the tension between the operation of s15(2) and s15(3): the artist considered that he had a right to express himself by way of art while the neighbour claimed that “... we shouldn’t have to endure harassment of this kind”.[11]

If the Charter was effective in relation to public authorities at the time the Council’s decision was made, it is submitted that the Council’s decision would be unlawful under s38 as being incompatible with the right to freedom of expression by way of art under s15(2)(d).

This conclusion is supported by a recent decision of the European Court of Human Rights (ECHR) in relation to freedom of expression by way of art. As mentioned above, under s32(2) of the Charter “the judgments of ... foreign and international courts ... relevant to a human right may be considered in interpreting a statutory provision” and s32(2) is intended to “operate as a guide ... in interpreting the meaning and scope of the human rights in Part 2”[12]and therefore s15(2)(d).

The European experience

The case of Vereinigung Bildender Künstler v Austria[13] involved a painting entitled Apocalypse by artist Otto Mühl, which was described by the ECHR (at para 8) as follows:

“The painting, measuring 450cm by 360cm, showed a collage of various public figures, such as Mother Teresa, the Austrian cardinal Herman Goer and the former head of the Austrian Freedom Party (FPÖ) Mr Jörg Haider, in sexual positions. While the naked bodies of these figures were painted, the heads and faces were depicted using blown-up photos taken from newspapers. The eyes of some of the people portrayed were hidden under black bars. Among them was Mr Meischberger, a former general secretary of the FPÖ ...”.

The painting was part of an exhibition entitled “The century of artistic freedom” held in 1998 by an association of artists. Soon after pictures of the painting had been published in Austrian newspapers, Mr Meischberger sought an injunction against the association to prohibit the exhibition and publication of the painting based on s78(1) of the Austrian Copyright Act, which provides that “[i]mages of persons shall [not] be exhibited publicly ... where injury would be caused to the legitimate interests of the portrayed persons ...”.[14]

While Mr Meischberger succeeded in the Austrian courts, the association appealed to the ECHR on the basis that “the Austrian courts’ decision forbidding it to exhibit any further the painting at issue had violated its right to freedom of expression”[15] under Article 10 of the European Convention on Human Rights, which is worded in substantially the same terms as s15 of the Charter.

After considering the parties’ submissions, the ECHR made clear its views in relation to the importance of the right to freedom of expression by stating (at para 26):

“The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society, indeed one of the basic conditions for its progress and for the self-fulfilment of the individual. Subject to paragraph 2, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population”.

The ECHR then approached the balancing act between the right to freedom of expression and the responsibilities owed to others. Charlotte Kilroy succinctly says the following “standard test of the ... lawfulness of any interference with the right to ... freedom of expression”:[16]

“1. Any restriction on civil and political rights must be prescribed by law.

2. The restriction must be justified by one of the aims recognised under the European Convention.

3. The restriction must be shown to be ‘necessary in a democratic society’.

4. Any qualification to rights cannot be applied in a discriminatory fashion”.[17]

The ECHR held (at para 28) that the Austrian law was an interference with the right to freedom of expression which was “prescribed by law”, thereby satisfying the first element of the test. With regard to the second element, the ECHR held (at para 29) that the Austrian law pursued the “legitimate aim of ‘protecting the rights of others’” provided for in para 2 of Article 10. However, the Austrian law failed to satisfy the third element with the ECHR finding that “the Austrian courts’ injunction was disproportionate to the aim that it pursued and therefore not necessary in a democratic society within the meaning of Article 10 [paragraph] 2 ...”. This was because Mr Meischberger’s portrayal in the painting “amounted to a caricature of the persons concerned using satirical elements” with the ECHR noting (at para 33) that “satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate”.

Local application of European human rights law

Applying the ECHR’s approach to the display of The Finger, the restriction on the artist’s human rights arising from the Council’s decision satisfies the first element as it is prescribed by the Planning and Environment Act 1987 (Vic). The second element is satisfied as the Council’s decision appears to have the legitimate aim of “respect[ing] the rights and reputation of other persons” provided for in s15(3)(a) of the Charter. However, it can be argued that the Council’s decision fails to satisfy the third element, which approximates to s7(2) of the Charter, as it is disproportionate to the aim that it pursued and therefore was not necessary in a democratic society.

The Council’s decision resulted in the artist’s complete inability to display the sculpture on the basis that it appeared to offend a neighbour whereas s7(2) will require the Council to take into account any less restrictive means reasonably available to achieve the legitimate purpose. A less restrictive means of achieving the Council’s purpose in a democratic society may have been to require tree planting on the artist’s land to screen the neighbour’s view of the sculpture. Lending weight to the view that the artist’s right to freedom of expression overrides the neighbour’s right not to be harassed or offended, The Finger could be seen as a work of satire in the same way as the painting Apocalypse – “... a form of artistic expression and social commentary ... [which] ... aims to provoke and agitate”.[18]


MICHELLE HARPER, a former practising solicitor, is a lecturer in intellectual property law and marketing law at the School of Law, La Trobe University.


[1] Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, p1.

[2] Note 1 above, p22.

[3] Note 2 above.

[4] The Green Wedge Protection Group v Nillumbik SS [2005] VCAT 1365 (4 July 2005), [2]

[5] Hanna Mills, “Bird’s eye view for next door”, Diamond Valley Leader (Nillumbik edition), (Melbourne), 17 January 2007, p1.

[6] Hanna Mills, “Famous finger faces fickle fate”, Diamond Valley Leader (Nillumbik edition), (Melbourne), 24 January 2007, p7.

[7] Note 5 above.

[8] Note 5 above.

[9] “Point made, the finger storm stills”, Diamond Valley Leader (Nillumbik edition), (Melbourne), 31 January 2007, p7.

[10] Planning and Environment Act 1987 (Vic), ss61(1), 130.

[11] Note 5 above.

[12] Note 1 above, p22.

[13] Application No 68354/01, ECHR, Strasbourg, 25 January 2007.

[14] Note 13 above, at [19].

[15] Note 13 above, at [21].

[16] Kilroy, Charlotte, “Protecting freedom of expression: Article 10, European Convention on Human Rights”, p6, accessed at http://www.abgm.adalet.gov.tr/Kilroy.pdf on 17 October 2007.

[17] Note 16 above.

[18] Note 13 above, at [33].

Comments




Leave message



 
 Security code
 
LIV Social
Footer