Report of an inquiry
into a complaint by Mr Daniel Clark against the Minister for Foreign Affairs
and Trade of a breach of his human right to freedom of expression
HREOC Report No. 34
The Hon Phillip Ruddock MP
House of Representatives
CANBERRA ACT 2600
Pursuant to section 11(1 )(f)(ii) of the Human Rights and Equal Opportunity Commission Act1986 ( Cth), I attach a report of my inquiry into a complaint by Mr Daniel Clark. I have found that the act or practice of the Minister for Foreign Affairs and Trade complained of the Minister for Foreign Affairs is inconsistent with or contrary to the human right of freedom of expression as provided for in article 19 of the International Covenant on Civil and Political Rights
John von Doussa QC
Table of Contents
- OUTLINE OF COMPLAINT
- FURTHER INFORMATION PROVIDED BY THE COMPLAINANT
- OUTLINE OF RESPONSE
- OTHER EVIDENCE
- REQUEST FOR DOCUMENTS
- RELEVANT LEGAL FRAMEWORK
- TENTATIVE VIEW
- 8.1 Tentative findings of fact
- 8.2 Was there an act or practice for the purposes of the HREOC Act?
- 8.3 Was the act or practice inconsistent with or contrary to Article 19(2) of the ICCPR?
- 8.4 Did the restriction come within the limitations contained in Article 19(3) of the ICCPR?
- 8.5 Article 21 of the ICCPR
- 8.6 Conclusion
- RESPONSE TO THE TENTATIVE VIEW
- ACTIONS TAKEN BY THE RESPONDENT AS A RESULT OF THE FINDINGS AND RECOMMENDATION
- APPENDIX A
This report concerns my inquiry into a complaint by Mr Daniel Clark that his human rights were breached by the decision of the Minister for Foreign Affairs, the Hon Alexander Downer MP to withdraw Mr Clark’s invitation to attend the Department of Foreign Affairs and Trade Non-Government Organisation (NGO) Consultations as a representative of Falun Dafa. For the purposes of the HREOC Act, the Minister’s acts or practices are acts or practices of the Commonwealth of Australia (‘the Commonwealth’).
The inquiry was conducted pursuant to ss 11(1 )(f) and 20(1) of the HREOC Act. As a result of my inquiry, I have found that the acts or practices of the Minister were inconsistent with or contrary to the human right of freedom of expression as provided for in article 19 of the International Covenant on Civil and Political Rights (‘ICCPR’).
On 21 March 2005 Mr Clark made a complaint to the Commission alleging a breach of human rights under the HREOC Act. Originally Mr Clark named the Department of Foreign Affairs and Trade (‘DFAT’) as a respondent to his complaint. Through the course of this inquiry it became clear that the relevant decision in question was a decision of the Minister and the complaint was, in reality, a complaint against the Minister. Accordingly, this complaint has been treated as a complaint against the Minister.
Mr Clark is the Coordinator for Falun Dafa in Canberra. He stated that on 15 February 2005 he was invited to attend the Consultations as a representative of Falun Dafa. The Consultations were to be held on 9 March 2005. Mr Clark stated that he had attended a similar event in 2004 as a Falun Dafa representative and that the Consultations provide feedback to NGOs from DFAT and allow NGOs to raise issues with DFAT.
Mr Clark claimed that he arrived at the foyer of DFAT on 9 March 2005 to attend the Consultations and was told that his invitation had been withdrawn and that no written or official verbal notice of this withdrawal would be provided.
Mr Clark stated that he was aware of a planned anti-torture display by Falun Dafa practitioners outside DFAT on that day. Mr Clark stated that DFAT had advised Mr John Deller (another Falun Dafa practitioner) that invitations to the consultations made to Mr Deller and Mr Clark would be withdrawn if the anti-torture display was held. Mr Clark alleged that the requirement that Falun Dafa could only participate in the Consultations if the anti-torture display did not go ahead breached his right to freedom of expression and his right of peaceful assembly under the ICCPR.
Mr Clark stated that the Falun Dafa anti-torture display started at around 7.30am to 8am and went until 5pm to 5.30pm on 9 March 2005 and that displays were set up on either side of the walkway into the DFAT building, on the northern side of the building and across the road from the main entrance to DFAT on the western side. Mr Clark claimed that there were around 40 to 60 participants and that at no time did the display inhibit access to and from the DFAT Buildings.
Mr Clark stated that the form of the display was:
- some static re-enactments of the human rights abuses occurring in China based on United Nation reports;
- some people sitting or standing silently;
- a 30 to 40 minute press conference where victims of abuse in China told their stories; and
- posters , boards and banners explaining the persecution of Falun Gong in China.
Mr Clark claimed that the protest was silent, apart from the music accompanying the Falun Dafa exercises or an audio program that accompanies the anti-torture displays. He also claimed that the volume was always kept at a reasonable level and there was no shouting or chanting of slogans or abuse. Mr Clark stated that banners and posters showed examples of torture and abuse occurring in China and none of the posters contained slanderous or abusive language.
Mr Clark claimed that he had no direct role in the display but did give media interviews and a five minute speech about the exclusion of Falun Dafa from the Consultations. He stated that he did not have any part in organising the display and as far as he knew the display was discussed with police beforehand and was conducted within the law.
Photos of the display were provided to the Commission by Mr Clark. The photos depict Falun Dafa practitioners standing across the road from the R G Casey building, opposite its main entrance. In the photos some practitioners are holding large banners which contain statements such as “Mr Downer please don’t allow the persecution of Falun Gong to extend to Australia” and “ Falun Dafa is Good”. Other practitioners are in cells or otherwise re-enacting the alleged persecution of Falun Dafa practitioners. The majority of the practitioners are standing with their hands clasped in front of them. At the front and in the middle of the display are a microphone stand and a small public address system.
Mr Clark has also provided to the Commission material from a publication entitled Human Rights Manual 2004 , 1 which is published by the Commonwealth. Amongst other things, that material included the following comments regarding NGOs and the Consultations:
The Australian Government recognises the vital role that civil society and NGOs play in the promotion and protection of human rights. A strong and active NGO community is essential to the communication of advice about human rights issues, in facilitating human rights education, in working directly at a grassroots level in solving problems and maximising development assistance, and helping register concerns with government, the United Nations and other international bodies. Submissions to parliamentary inquiries, briefings for human rights dialogues and briefings for UN meetings are only some of the human rights-related material that NGOs provide to government. It is in acknowledgment of this role that the Department of Foreign Affairs and Trade schedules regular biannual consultations with NGOs (which whenever possible are attended by the Minister for Foreign Affairs). Other government departments hold regular consultations with NGOs with an interest in particular portfolios (emphasis added).
A response was received from DFAT (on behalf of the Minister) on 12 May 2005. In the response, DFAT stated that it is of the firm view that no breach of the right of freedom of expression or the right to peaceful assembly has occurred.
DFAT stated that Mr Daniel Clark and Mr John Deller were invited to attend the DFAT Non-Government Organisation Consultations held on 9 March 2005 as representatives of Falun Dafa Australia.
DFAT claimed that it hosts the Consultations biannually, usually in March and September and that they are a forum in which the Department meets a wide range of human rights NGOs to discuss international human rights issues of mutual concern in a constructive and cooperative manner. DFAT asserted that NGOs participate in the Consultations by invitation of DFAT and there is no general right of access by NGOs to a private, invitation-only event. DFAT stated that the right of assembly and freedom of expression do not provide a basis at law to compel such an invitation and the Department retains the discretion to decide which NGOs may participate. DFAT stated that it invites individuals to attend as representatives of those human rights NGOs it judges, inter alia, to have an interest in the subjects discussed, possess a capacity to contribute to discussions and a willingness to observe the constructive cooperative spirit of the Consultations. DFAT advised that discussions at the Consultations are conducted under the Chatham House Rule to enable topics to be discussed in a full and frank way and the agenda is set following discussions between DFAT and the Australian Forum of Human Rights Organisations.
DFAT stated that the Minister decided to withdraw the invitations to Mr Clark and Mr Deller on 8 March 2005 following advice from members of Falun Dafa that it planned to proceed with a demonstration outside the R G Casey building to coincide with the Consultations. DFAT stated that the Minister took this decision on the grounds that Falun Dafa’s actions in holding the demonstration expressly to coincide with the Consultations were inconsistent with the cooperative spirit of the Consultations, making the attendance of Falun Dafa representatives inappropriate. DFAT advised that the Falun Dafa representatives were told that they could attend the Consultations if they held their protest on another day.
DFAT stated that Falun Dafa representatives nevertheless took a decision to exercise their rights to freedom of assembly and opinion in public by holding a demonstration outside DFAT on the day of the Consultations and that prior to the Consultations on 9 March 2005, Falun Dafa had already staged a number of demonstrations outside DFAT.
DFAT stated that an officer officially notified Mr Deller of the withdrawal of Falun Dafa’s invitation, and the reasons for it, by telephone on 8 March 2005 and that another officer officially notified Mr Clark on 9 March 2005 when he arrived at the R G Casey building. DFAT asserted that the reasons for the withdrawal of the invitations did not relate to the content of the demonstrations as alleged by Mr Clark in the press article attached to his complaint.
DFAT stated that the Falun Dafa demonstration took place as planned on 9 March 2005, that the Government placed no restriction on the demonstration and Falun Dafa practitioners were able to fully exercise their rights to peaceful assembly and freedom of expression. DFAT stated that Mr Clark was shown on television that evening participating in the demonstration.
DFAT claimed that the rights of freedom of expression and assembly enjoyed by Falun Dafa practitioners were not compromised or limited in any way through the withdrawal of an invitation to a private, invitation-only event. DFAT stated that were this to be the case, any NGO which did not receive an invitation to the Consultations could claim its rights had been violated and this would clearly be an untenable situation which could threaten the existence of the Consultations. DFAT stated that the action of Falun Dafa in holding the protest on the same day as the Consultations was, in the opinion of the Department and Minister, discourteous.
DFAT claimed that in this instance, no issues relating to the lawful circumstances where states may derogate from the exercise of the rights contained in articles 19 and 21 of the International Covenant on Civil and Political Rights apply.
On 5 August 2005 Mr John Deller provided a statement to the Commission.
Mr Deller stated that in February 2005, Lyn Hayes of the Human Rights and Indigenous Issues Section of DFAT extended an invitation to Falun Dafa to attend the March 2005 Consultations at the R G Casey building in Canberra. Mr Deller stated that Mr Clark confirmed to Ms Hayes that both he and Mr Deller would attend on behalf of Falun Dafa.
Mr Deller stated that on 4 March 2005 he received a telephone call from Ms Kathy Richards in her role as the Convenor of the Australian Forum for NGOs in this Consultation. He claimed that Ms Richards advised him that she had heard that Falun Dafa would be holding a protest/gathering outside DFAT during the Consultations and if that was the case, DFAT may put a memo to the Minister to deny the two Falun Dafa representatives access to the meeting. Mr Deller states that he confirmed that Falun Dafa would hold an appeal and an anti-torture exhibition to highlight the torture that practitioners are suffering in China and that they hoped DFAT officials, Mr Downer and other NGOs would see it and be informed.
Mr Deller stated that on 8 March 2005 he received a call from Mr Richard Sadleir, Assistant Secretary, International Organisations Branch who asked if Falun Dafa still proposed to hold a protest outside of DFAT on the 9 March 2005. Mr Deller stated that he confirmed that they would hold an appeal and an anti-torture exhibition and Mr Sadleir then said that if that was the case, it saddened him to advise that their invitation to attend the Consultations would be withdrawn because DFAT considered that a protest was inconsistent with the spirit of the Consultations. Mr Deller stated that he asked Mr Sadleir if this was the Minister’s decision and Mr Sadleir replied that it was the position of the government. He claimed that Mr Sadleir also said that the ban would apply to future DFAT-NGO Consultations as well.
Mr Deller claimed that on the morning of 9 March 2005 he and Mr Clark attended the reception for the Consultations at the R G Casey building but were informed that they could not enter. He stated that they requested an explanation or reason for the refusal in writing but were ignored.
In a letter dated 14 April 2005, my delegate requested copies of all documents relevant to the decision to withdraw Mr Clark’s invitation. DFAT did not provide those documents. Rather, it stated (in a letter dated 12 May 2005):
The Department is examining options with respect to production of documents relevant to the Commission’s inquiry. In particular the Department may seek a certificate from the Attorney-General under section 24 of the [HREOC Act] to the effect that disclosure of the content of the documents is contrary to the public interest. In any event, we note that the reasons for Mr Downer’s decision have been fully recorded above.
In referring to section 24, DFAT apparently understood that my delegate had exercised the power under s21 of the HREOC Act to require the production of those documents. To avoid any doubt, my delegate did not purport to exercise that power as she had hoped that those documents would be provided on a cooperative basis without the need to formally require their production. Nor have I sought to exercise that power in this inquiry. I have not done so because the parties largely seem to be in agreement as to the reasons underlying the Minister’s decision.
Section 11(1)(f) of the HREOC Act provides that the Commission has the function of inquiring into any act or practice that may be inconsistent with or contrary to any human right. Section 20(1 )(b) requires the Commission to perform that function when a complaint in writing is made to it alleging such an act or practice. Section 3 of the HREOC Act defines “act” thus:
act means an act done:
- by or on behalf of the Commonwealth or an authority of the Commonwealth;
- under an enactment;
- wholly within a Territory; or
- partly within a Territory, to the extent to which the act was done within a Territory.
The word “practice” is given a corresponding meaning by s 3.
The expression “human rights” is also defined in s 3, and includes the rights and freedoms recognised in the ICCPR which is set out in Schedule 2 to the HREOC Act.
I consider that a decision by the Minister to invite or withdraw an invitation to representatives of NGOs to attend the Consultations is an act done by or on behalf of the Commonwealth and therefore comes within the Commission’s jurisdiction under s.11(1)(f) of the HREOC Act.
Article 19(2) of the ICCPR provides:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
Although Article 19(2) of the ICCPR broadly states that everyone has the right to freedom of expression, this right is not unfettered and party States may enact laws that place limits on this civil and political right. Article 19(3) of the ICCPR states that the exercise of this right may be subject to certain restrictions and sets out how these restrictions operate. Article 19(3) provides:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
- for the respect of the rights or reputation of others;
- for the protection of national security or of public order ( ordre public), or of public health or morals.
Article 21 of the ICCPR provides:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order ( ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
In accordance with the usual practice in reporting on an inquiry into a complaint made under the HREOC Act that an act or practice is inconsistent with or contrary to any human right, I made a preliminary assessment of the available information. I formed a tentative view that the act or practice of the Minister was inconsistent with or contrary to Mr Clark’s human rights.
My preliminary assessment and tentative view was as follows.
I made the following tentative findings of fact:
- The Minister and DFAT host the Consultations biannually (on behalf of the Commonwealth), usually in March and September and this is a forum where the Minister and DFAT meet a range of human rights NGOs to discuss international human rights issues of mutual concern.
- The Consultations are held in recognition of the vital role that civil society and NGOs play in the promotion and protection of human rights. The Commonwealth recognises that that role includes the communication of advice about human rights issues, facilitating human rights education, working directly at a grassroots level in solving problems and maximising development assistance and helping register concerns with government, the United Nations and other international bodies.
- On 15 February 2005 Daniel Clark received a written invitation from DFAT to attend the Consultations as a representative of Falun Dafa. The Consultations were to be held on 9 March 2005 at DFAT in the R G Casey building. Mr Clark accepted this invitation.
- In early March 2005 DFAT officers became aware that Falun Dafa practitioners would be holding a demonstration outside DFAT during the Consultations.
- On 8 March 2005 the Minister made a decision to withdraw Mr Clark’s invitation to the Consultations following advice that Falun Dafa planned to proceed with a demonstration outside the R G Casey building to coincide with the Consultations. The Minister made this decision on the grounds that Falun Dafa’s action in holding the demonstration expressly to coincide with the Consultations was inconsistent with the cooperative spirit of the Consultations and made the attendance of Falun Dafa representatives inappropriate.
- On 8 March 2005 a DFAT officer rang Mr Deller, a Falan Dafa practitioner who was also invited to the Consultations, and advised him of the Minister’s decision to withdraw his and Mr Clark’s invitations because the holding of a demonstration to coincide with the Consultations was considered to be inconsistent with the spirit of the meeting.
- The Consultations went ahead on 9 March 2005 and when Mr Clark arrived at the Consultations, another DFAT officer verbally informed him of the decision to withdraw his invitation to the Consultations.
- Mr Clark did not participate in the Consultations.
- The demonstration by Falun Dafa practitioners was held on 9 March 2005. It commenced at approximately 7.30am and continued until approximately 5.30pm. It was located across the road from the R G Casey building with the main part of the demonstration being opposite the main entrance to the building. The demonstration was peaceful and did not obstruct the ability of participants to enter or take part in the Consultations. The demonstration included the re-enactment of alleged human rights abuses in China, the holding of banners which did not obtain any abusive or inflammatory language, the playing of audio recordings, the holding of press conferences and practitioners sitting or standing quietly.
- While Mr Clark had no direct role in the demonstration, he participated in it after he was refused admission to the Consultations. His participation took the form of media interviews and a speech about his exclusion from the Consultations.
The act complained of was the withdrawal of Mr Clark’s invitation to participate in the Consultations on the basis that Falun Dafa were going to hold a protest outside the R G Casey building on the same date as the Consultations. This decision was made by the Minister on 8 March 2005.
I formed the tentative view that the decision by the Minister on 8 March 2005 to withdraw Mr Clark’s invitation to the Consultations was an act done on behalf of the Commonwealth and accordingly fell within the definition of ‘act’ in s 3(1) of the HREOC Act.
The main issues that I then considered were as follows:
- Did the decision of the Minister to withdraw Mr Clark’s invitation to the Consultations restrict his right to freedom of expression for the purposes of article 19(2) of the ICCPR?
- If so, did that restriction come within the limitations contained in Article 19(3) of the ICCPR?
- Did the decision of the Minister restrict Mr Clark’s right to peaceful assembly?
Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression including the right, inter alia, to seek, receive and impart information and ideas of all kinds, either orally, in writing or in print.
Those rights assume particular importance when the information in question relates to the democratic process and the activities of elected government. This was discussed in Gauthier v Canada , 2 where the author, a journalist, was denied access to the media facilities of the Canadian Parliament. Access to those facilities was restricted to members of the Canadian Press Gallery. The Press Gallery was a private organisation, which regulated its own membership. The author was not a member of that organisation. In finding a violation of article 19(3), the Committee considered that it was also relevant to have regard to article 25 of the ICCPR, which provides in part:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions …[t]o take part in the conduct of public affairs, directly or through freely chosen representatives
The Committee explained the relationship between articles 19(3) and 25 in the following terms:
…the Committee also refers to the right to take part in the conduct of public affairs, as laid down in article 25 of the Covenant, and in particular to General Comment No. 25 (57) which reads in part: “In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion.” … Read together with article 19, this implies that citizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members. The Committee recognizes, however, that such access should not interfere with or obstruct the carrying out of the functions of elected bodies, and that a State party is thus entitled to limit access. However, any restrictions imposed by the State party must be compatible with the provisions of the Covenant. 3
The current matter does not involve media access to Parliamentary proceedings or precincts. However, like Gauthier, it concerns the free communication of information and ideas about public and political issues between citizens and government, which the Human Rights Committee has described as ‘essential’. The importance of the Consultations as a forum for such communications appears to be accepted by the Commonwealth in the Human Rights Manual 2004. As noted above, the Commonwealth states in that publication that the Consultations are held in ‘acknowledgement’ of the ‘vital’ role played by NGOs in promoting and protecting human rights. Indeed the Consultations appear to be a forum in which that role is facilitated. Amongst other things, the Consultations allow ‘communication [by NGOs to government and government to NGOs] of advice about human rights issues’ and allow NGOs to ‘register concerns with government’. These are both matters the Commonwealth identifies as being aspects of the ‘vital role’ of NGOs.
In the submissions put forward on his behalf by DFAT, the Minister contended that the Consultations are an invitation only event and that NGOs can only participate if they are invited by DFAT. In arriving at my tentative view, I accepted that this was correct. The Minister further contended that this fact is decisive of the matters I have to consider in this inquiry. The Minister said that, given the invitation only nature of the Consultations, article 19 does not provide a basis for compelling the inviting of a particular NGO. He also said that, were it to do so, the existence of the Consultations would be threatened because ‘any NGO which did not receive an invitation to the forum could claim its rights had been violated’.
The submissions advanced on behalf of the Minister focus upon the invitation process. That is, the process of determining which NGO representatives should be able to attend the Consultations, being a non-public forum where people can seek, receive and impart information. It will be apparent from what I have said above that Gauthier is authority for the proposition that, in at least some situations, such a process will be subject to article 19 of the ICCPR.
However, I did not need to determine those issues for the purposes of forming my tentative views on this complaint.
This case is unusual. It does not concern how the Minister’s or DFAT’s discretion to invite participants to the Consultations is to be exercised. In this case, Mr Clark had been invited. The invitation to him necessarily implies that the Minister and DFAT had determined that he was a person whose presence at the Consultations would meet the objects of the Consultations. In forming my tentative views, I determined that the issue raised in these circumstances concerned not the making of the invitation, but its withdrawal, and the effect of that withdrawal on Mr Clark’s human rights.
The withdrawal of Mr Clark’s invitation meant that Mr Clark was not able to seek and receive information about international human rights issues of interest to him from the Minister, DFAT officers or from other NGO representatives participating in the Consultations. It also meant that Mr Clark was not able to impart information relating to international human rights issues that are of concern to him and other Falun Dafa practitioners to the other NGO participants, DFAT or the Minister.
I formed the tentative view that this amounted to a restriction on the rights conferred upon Mr Clark by article 19(2) of the ICCPR.
In light of the tentative view referred to in section 8.3 above, I then considered whether the restrictions upon Mr Clark’s right to freedom of expression fell within any of the permissible limitations under paragraph 3 of article 19. For a restriction to fall within that paragraph, I needed to be satisfied that:
- the relevant restriction was provided by law;
- the relevant restriction was for one or more of the purposes specified in sub-paragraphs (a) or (b) (respect for the rights or reputations of others; protection of national security or public order or protection of public health or morals);
- the relevant restriction was limited to what is necessary and proportionate to achieve that purpose or purposes and is not arbitrary. 4
Regrettably, the submissions advanced by DFAT on behalf of the Minister were of very little assistance in relation to these issues. The Minister appeared to take the view the right to freedom of expression simply has no application to the present matter and therefore paragraph 3 of article 19 does not arise. As I have stated above, I tentatively disagreed with that view.
The Human Rights Committee has indicated that the onus is on the relevant State party to demonstrate that a particular restriction falls within paragraph 3 of article 19. 5 I observed in my tentative view that, subject to anything further from the Minister, it was therefore open to me to determine this matter on the basis that the Minister had not discharged that onus.
Nevertheless, one view of the submissions advanced on behalf of the Minister was that they raise the question of whether the ‘public order’ element of paragraph 3 applies in the circumstances of this matter. ‘Public order’ is the sum of rules which ensure the peaceful and effective functioning of society. 6 It includes prevention of disorder and crime and the protection of the ‘universally fundamentally accepted principles, consistent with respect for human rights, on which a democratic society is based’. 7
In Gauthier, the Human Rights Committee appeared to accept that this head of paragraph 3 could be relied upon to justify proportionate restrictions required to ensure the effective and dignified operation of Parliament and the safety and security of its members.
In my tentative view I noted that it might be similarly said that paragraph 3 would support restrictions which were necessary to protect the effective operation of the Consultations. For example, if Mr Clark had attended the Consultations and disrupted the proceedings with some form of protest, then in my view DFAT or the Minister could have cautioned him or ejected him from the meeting without violating paragraph 2 of article 19. The Minister’s response to this complaint offered no reason why Mr Clark’s presence at the Consultations would have disrupted the proceedings, or in any way have detracted from the open exchange of information on human rights issues.
I was not convinced that the fact that an organisation was staging a peaceful demonstration would mean that their representative could not participate in a consultative forum in a cooperative manner. I considered that demonstrations and consultations are not mutually exclusive means of raising issues that are of concern to Australian citizens. Additionally, allowing Mr Clark to participate in the Consultations would not have been contrary to the Chatham House Rule under which the discussions were conducted.
I therefore formed the tentative view that the withdrawal of Mr Clark’s invitation was not a necessary and proportionate restriction for the purpose of protecting public order within the meaning of paragraph 3 of article 19.
I also observed that there may have been some question as to whether the restriction was ‘provided by law’. It was unnecessary to consider that question further in light of the tentative view referred to above. However, it seemed to me at least arguable that it was ‘provided by law’ on the basis that the Minister was exercising executive power under s61 of the Constitution. 8
As I understood it, Mr Clark’s complaint regarding article 21 was that DFAT and/or the Minister issued an ultimatum to the effect that he was only welcome at the Consultations if DFAT could ‘dictate the time, place and form’ of any exercise of his right to freedom of assembly.
However, somewhat ironically, the Minister’s decision facilitated rather than restricted Mr Clark’s ability to exercise his article 21 rights outside the R G Casey building. Had his invitation not been withdrawn, he would have been participating in the Consultations rather than the demonstration. In those circumstances, I formed the tentative view that those matters fell outside the scope of this inquiry.
For the reasons set out above, I formed the tentative view that the decision by the Minister to withdraw Mr Clark’s invitation to participate in the DFAT-NGO Consultations on 9 March 2005 was a restriction on Mr Clark’s right to freedom of expression under Article 19(2) of the ICCPR. I also formed the tentative view that this restriction did not fall within one of the permissible restrictions under Article 19(3) of the ICCPR.
On 26 October 2005, in accordance with s 27 of the HREOC Act, notice of my tentative view was given to the Department, which was invited to make further submissions orally or in writing or both on the Minister’s behalf. A copy was also provided to Mr Clark.
By letter dated 14 December 2005, the Department provided a response which I have reproduced in its entirety below:
I write in response to the letter dated 26 October 2005 from the Hon John von Doussa, President, Human Rights and Equal Opportunity Commission, to the Secretary of the Department of Foreign Affairs and Trade, outlining the President’s Tentative Finding on the complaint received from Falun Dafa practitioner Mr Daniel Clark (the “Tentative Finding”). The Secretary has asked me to respond on his behalf.
In his Tentative Finding, the President concludes that the withdrawal by the Minister for Foreign Affairs of Mr Clark’s invitation to attend the Department’s biannual NGO consultations on 9 March 2005 constituted a restriction on Mr Clark’s right to freedom of expression under Article 19(2) of the International Covenant on Civil and Political Rights (the ICCPR). The President further concludes that this restriction did not fall within one of the permissible restrictions under Article 19(3) of the ICCPR.
The Minister and Department strongly reject the view that any breach of Mr Clark’s freedom of expression has occurred. Further, we consider that the Tentative Finding draws inappropriate conclusions from the facts giving rise to this complaint. In our view, some of these conclusions are neither sufficiently based at law, nor do they appear to recognise the Department’s basic right to determine which persons should have access to its premises and to events conducted by it, and under what circumstances that access should be given.
The Minister and Department remain of the view that the actions of the Falun Dafa in holding a protest on the same day, and outside the same venue, as the NGO consultations was deliberately provocative and inconsistent with the cooperative spirit of the consultations.
Matters of Fact
The Tentative Finding focuses on the withdrawal of the invitation to Mr Clark as the relevant “act” constituting the breach of Mr Clark’s human rights for the purposes of the Human Rights and Equal Opportunity Commission Act 1986. The President, however, acknowledges as correct the fact that NGOs can only participate in the consultations if they are invited by the Department. This acknowledgement confirms that the President accepts that the Department has the discretion to select invitees to the consultations. The necessary corollary of this, however, is that if the Department has the discretion to invite a person to visit its premises, or to participate at a particular event, it must also have the discretion to withdraw that invitation in circumstances it deems appropriate. The Tentative Finding, however, fails to follow through to this conclusion, and moreover suggests that once an invitation is issued by the Department, that invitation cannot be withdrawn without a breach of Article 19 of the ICCPR occurring. Such a conclusion would, both in this instance and across the board more generally, impede the effective operations of the Department and as a matter of common sense cannot be supported.
Matters of Law
Article 19(2) of the ICCPR
The Minister and Department further disagree with the Tentative Finding’s interpretation of international human rights law applicable to this complaint. In particular, we disagree with the conclusion that because Mr Clark was “not able to seek and receive information about international human rights issues of interest to him from the Minister, DFAT officers, or from other NGO representatives participating in the consultations”, this represented a restriction on his right to freedom of expression in breach of Article 19(2) of the ICCPR.
Article 19(2) of the ICCPR elaborates the general right to freedom of expression, including the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally in writing or in print, in the form of art, or through any other media of his choice. In facilitating the exercise of the right, Article 19(2) does not in any way attempt to specify that particular individuals, forums or other entities are compelled to listen to a person exercising his right of freedom of expression. Nor does Article 19(2) grant individuals the right to insist upon access to private premises, or to invitation-only events or forums, for the purpose of free expression. The President’s tentative conclusions suggest that having issued an invitation to Mr Clark, the Department and Minister were therefore compelled to listen to his views or to impart information to him on the day of the consultations. This is an inference which, in our view, is not supported by law, and is one which would be untenable in practice.
The Minister and Department would note further that Falun Dafa (of which Mr Clark is a member) has a long history of interaction with the Department generally, during which it has exercised its right to free expression. Departmental officers have met Falun Dafa practitioners and supporters on several occasions. The Foreign Minister and the Department have also received and responded to written correspondence (numbering in the hundreds) from Falun Dafa practitioners and supporters. Such correspondence is given due consideration in the formulation of Australia’s foreign and trade policy, including in our representations to the Chinese Government on human rights issues. Further, the Department provides information on human rights related issues on its website, enabling Falun Dafa members (and indeed, any members of the public) to pursue those issues of interest to them with the Department (including by emailing the relevant area directly). Finally, Falun Dafa members are able to freely interact at any time with other NGOs as they wish, irrespective of their attendance at the Department’s human rights consultations.
The President appears to rely almost exclusively on the opinion of the United Nations Human Rights Committee in Gauthier v Canada as the basis for his conclusion that a breach of Mr Clark’s rights has occurred. The facts of Gauthier, however, can be distinguished from this complaint. Gauthier concerned an issue of the right of a person to have ongoing access to controlled premises, namely, the Parliamentary Press Gallery. The decision rightly confirmed the necessity for the right of access to information on the democratic process, but the facts at hand related solely to such access to a Parliamentary press room by a representative of the media in order to cover a public process. This complaint, in contrast, relates to access to Departmental premises for the purpose of attending an invitation-only event.
Moreover, the Minister and Department question the President’s linkage between the Human Rights Manual and the Gauthier decision. While the Manual indeed recognises that the Consultations are held in acknowledgement of the vital role that civil society and NGOs play in the promotion and protection of human rights, nothing in it would suggest that the Department does not have the discretion to determine which NGO representatives would participate in those consultations. It should further be noted that the importance of the free communication of information and ideas about public and political issues, including human rights, is not in question and is not the subject matter of this complaint. Rather, the issue arising from this complaint is whether Article 19 of the ICCPR grants an individual unlimited rights of access to Government premises and to attend events conducted by Government to express his or her views, or to listen to the views of others. The Minister and Department would emphasise that it does not.
It is the Minister’s and Department’s view that the more recent and persuasive opinion of relevance to this complaint is the Human Rights Committee’s decision in Ernst Zundel v Canada(953/2000). In Zundel, the complainant had obtained a booking with the Canadian Press Gallery for access to a Parliamentary conference room. The Parliament then passed a motion excluding the complainant’s access to Parliamentary precincts on the basis that he was the author of an anti-Semitic website. The Committee held that while the right to freedom of expression extended to the choice of medium, it did not amount to an unfettered right of any individual or group to hold press conferences within the Parliamentary precincts. The Committee further held that while the complainant had obtained a booking from the Press Gallery, which was made inapplicable when the Parliament issued its motion banning him from its precincts, “the complainant remained at liberty to hold a press conference elsewhere”. The Committee therefore found that the claim fell outside the scope of the right to freedom of expression and was therefore inadmissible.
Zundel , while admittedly dealing with access to Parliament, is nevertheless direct authority for the proposition that Article 19 does not require States to ensure that individuals have access to any place where they may choose to exercise their right of freedom of expression. The Committee in Zundel was satisfied that the fact the complainant was able to exercise his right to freedom of expression elsewhere was sufficient protection of his rights. This is of direct relevance to Mr Clark, who not only remained free to exercise his right to freedom of expression in any number of ways or in any number of locations on the day of the consultations, but who actually did so through his participation in the Falun Dafa demonstration.
Article 19(3) ICCPR
As noted in the Department’s previous response to the President concerning this matter dated 12 May 2005, the Minister and Department dispute that any restriction has been placed on the exercise of Mr Clark’s right to freedom of expression and would submit that as such article 19(3) has no application to this complaint.
Article 21 of the ICCPR
The Minister and Department agree with the conclusion in the Tentative Finding that no breach of Mr Clark’s right to peaceful assembly under Article 21 of the ICCPR occurred.
Access to Governmental Premises
The Minister and Department would further emphasise that the Department has a right to give, refuse to give, or withdraw, permission to a person to enter its premises. This principle is based in the tort of trespass and in relation to Commonwealth Government buildings is supported by section 89 of the Crimes Act 1914. Further, Government security policy also applies to Commonwealth Government buildings, as set out the Protective Security Manual (PSM). It is implicit in the Department’s Security Instructions, which are based on the PSM, that the Department can decide, at any given time, who is permitted access as a visitor to the non-public (restricted) areas of the building. The NGO consultations were held in a restricted area of the building.
The Minister and Department are therefore of the firm view that no breach of Mr Clark’s right of freedom of expression has occurred. Article 19(2) of the ICCPR does not grant individuals a blanket right to have access to any place or participate in any event where they may wish to exercise their right of freedom of expression. Moreover, the withdrawal of Mr Clark’s invitation was consistent with the Department’s right to regulate the entry of persons to its premises.
The Minister and Department consider that this complaint is misconceived and is lacking in substance. Therefore, in accordance with section 20(2) of the Human Rights and Equal Opportunity Act, the Minister and Department consider that it would be appropriate for the Commission to decide not to continue to inquire further into the complaint.
I have given careful consideration to each of the matters raised by the respondent. For the reasons set out below, those matters have not led me to alter my tentative view that the act or practice of the Minister was inconsistent with or contrary to Mr Clark’s human rights under article 19 of the ICCPR.
Issues raised under the heading ‘Matters of fact’
Under this heading, the respondent appears to suggest that my finding that the Minister possesses a discretionary power to invite people to the Consultations requires the conclusion that an invitation may be withdrawn without violating article 19.
Although not entirely clear, the respondent may be suggesting that the exercise of a discretionary power is not capable of violating Australia’s obligations under the ICCPR. To the extent that suggestion is made, it is misconceived and must be rejected. The exercise of discretionary powers provided for by Australian law may contravene Australia’s obligations under international human rights instruments. Minister for Immigration and Ethnic Affairs v Teoh 9 is an example of a case where the High Court held that such a contravention had taken place.
The question is: did the Minister’s exercise of the discretionary power under consideration in this case violate any of the limitations arising from article 19 of the ICCPR.
The respondent’s submissions on this issue seem to reflect a concern that the Minister should be able to exercise the powers of invitation and withdrawal however she or he sees fit. It appears to be suggested that to hold otherwise would make the Consultations unworkable.
I have observed, without needing to decide the issue, that article 19 may impose certain limitations on the discretionary power of invitation.
To the extent that it does, this would not, in my view, ‘impede the effective operations of the Department’. That is because paragraph 3 of article 19 allows for certain restrictions on the rights guaranteed by paragraph 2, including restrictions for the purpose of ‘public order’. So, for example, in Gauthier it was not suggested that there could be no criteria applied in determining admission to the Parliamentary press gallery, such that access was available to all members of the public. Similarly, to the extent article 19 applies to the invitation process, the Minister would not contravene any relevant obligations if she or he were to impose non-arbitrary and transparent criteria to determine which NGOs should be invited to the Consultations.
It is, however, unnecessary to consider that matter further because I am here concerned with the more unusual case of the exercise of the discretionary power to withdraw an invitation to the Consultations. As I have observed above, such a case involves special considerations because it is implicit in the issuing of an invitation that the Minister has already determined that the invitee’s presence will meet the objects of the Consultations.
I note that the respondent appears to suggest that my tentative view requires that an ‘invitation cannot be withdrawn without a breach of article 19 of the ICCPR occurring’. This is plainly a misreading of my reasons. It will be apparent, from the summary of my tentative view above, that I indicated that Mr Clark’s invitation might have been withdrawn without infringing article 19 if the decision fell within the exceptions set out in paragraph 3. I will return to that issue below.
Issues raised under the heading ‘Matters of law’
In my view, the respondent has misunderstood the Human Rights Committee decisions referred to under this heading.
I will not repeat what I have said regarding Gauthier in the summary of my tentative view which appears above. It is true, as I acknowledged in my tentative view, that the facts of Gauthier differ from those in issue in the current matter. However, Gauthier sets out broader principles, which apply beyond the facts there considered. Those principles recognise the importance of the free communication of information and ideas about public and political issues between citizens and government. In short, Gauthier indicates that article 19 may require access to certain fora where such communication takes place.
This also provides the short answer to the respondent’s reliance on Zundel v Canada. 10 Zundel did not deal with access to a forum where communication between government and citizens was to take place. Mr Zundel, a private citizen, wished to use a Parliamentary meeting room to hold a press conference. The Press Conference was to be held to discuss an interim ruling made by the Canadian Human Rights Commission. The interim ruling related to a complaint made against Mr Zundel concerning a website upon which Mr Zundel disputed that six million Jewish people died during the Holocaust. The Committee rejected the complaint stating:
Although the right to freedom of expression, as enshrined in article 19, paragraph 2, of the Covenant, extends to the choice of medium, it does not amount to an unfettered right of any individual or group to hold press conferences within the Parliamentary precincts, or to have such press conferences broadcast by others. While it is true that the author had obtained a booking with the Press Gallery for the Charles Lynch Press Conference Room and that this booking was made inapplicable through the motion passed unanimously by Parliament to exclude the author’s access to the Parliamentary precincts, the Committee notes that the author remained at liberty to hold a press conference elsewhere. The Committee therefore takes the position, after a careful examination of the material before it, that the author’s claim, based on the inability to hold a press conference in the Charles Lynch press Conference Room, falls outside the scope of the right to freedom of expression, as protected under article 19, paragraph 2, of the Covenant. 11
The facts of the present matter are distinguishable from the facts of Zundel. Unlike Zundel, I am not considering issues regarding access to a particular place. As was the case in Gauthier, the present matter involves issues regarding access to a particular forum, where an exchange of ideas between government and citizens takes place. The importance of that process is what led the Human Rights Committee in Gauthier to find that article 19 (when read in the context of article 25) will impose limits on the power to restrict access to certain fora in particular circumstances. I have found that the respondent’s decision to withdraw Mr Clark’s invitation violated that protection for the reasons outlined above.
The respondent also contends that Falun Dafa (of which Mr Clark is a member) is free to communicate with the Government and with other NGOs. It seems to be said that Mr Clark therefore has adequate alternative means of seeking and imparting information and suffers no real disadvantage. A similar argument was rejected by the Human Rights Committee in Gauthier, where it was said:
The Committee notes that the State party has claimed that the author does not suffer any significant disadvantage because of technological advances which make information about Parliamentary proceedings readily available to the public. The State party argues that he can report on proceedings by relying on broadcasting services, or by observing the proceedings. In view of the importance of access to information about the democratic process, however, the Committee does not accept the State party’s argument and is of the opinion that the author’s exclusion constitutes a restriction of his right guaranteed under paragraph 2 of article 19 to have access to information. 12
For similar reasons, I reject the respondent’s contention in this matter.
Article 19(3) ICCPR
The respondent has not commented on the matters discussed in my tentative view regarding paragraph 3. In those circumstances, I affirm my tentative finding that paragraph 3 does not apply on the facts of this case.
However, I will reiterate that paragraph 3 provides the answer to the respondent’s submissions regarding the supposed difficulties raised by my tentative findings. It provides the respondent with ample means of controlling proceedings at the Consultations and, where necessary, withdrawing an invitation of an NGO. It does, however, require that this process be non-arbitrary, fair and reasonable and transparent. 13 Such an approach should be uncontroversial in a modern democracy concerned to uphold the rule of law.
Issues raised under the heading ‘Access to Governmental Premises’
I have dealt with the submissions made under this heading above. Again, the respondent has misunderstood my reasons as suggesting that there is a right to access to premises. In fact, article 19(2) as explained in Gauthier, deals with access to certain fora where political communication takes place.
On 23 March 2006 I notified the parties of findings confirming my tentative view that the act or practice complained of, namely the decision by the Minister to withdraw Mr Clark’s invitation to participate in the Consultations on 9 March 2005, was inconsistent with or contrary to Mr Clark’s human rights.
I recommend that the respondent provide a written apology to the complainant.
Under section 29(2)(e) of the HREOC Act, I am required to report on whether the Minister has taken or is taking any action as a result of my findings and recommendation. Accordingly, the Minister was invited to make further submissions on whether he would take any action as a result of my findings and recommendation.
By letter dated 5 April 2006, the Department’s Secretary provided the following response, which I have reproduced in its entirety below:
I am writing in regard to the letter of 23 March 2006 sent to me by your Associate, Ms Frances Simmons, concerning the complaint made by Mr Daniel Clark under the Human Rights and Equal Opportunity Commission Act (1986) Cth and enclosing the notice of the finding made by the Commission concerning that complaint.
I have consulted the Minister for Foreign Affairs, Mr Downer, on the notice of the finding. I wish to advise the Commission that, while the President’s view has been considered, the Minister declines to provide an apology to the complainant. The Minister does not intend to take any other action as a result of the finding.
I note you have asked that my response be confined to the above issue. However, I would like to emphasise that the NGO consultations to which the complainant had been invited are a private, invitation-only event. The Department of Foreign Affairs and Trade has the basic right to determine which persons should have access to its premises and under what circumstances that access should be given.
The decision by Falun Dafa to protest outside the Department’s premises (the venue of the consultations) on the same day as they were scheduled to take place was, in the Department’s view, inappropriate and inconsistent with the cooperative spirit of the dialogue process.
I note that the complainant was able to exercise his rights to freedom of expression and assembly through his participation in the Falun Dafa protest held outside the Department’s premises on the day of the consultations.
I would ask that this letter be incorporated in its entirety in the Commission’s report to the Attorney-General concerning this matter.
I report accordingly to the Attorney-General.
John von Doussa QC
Functions of the Human Rights and Equal Opportunity Commission in relation to human rights
The Commission has specific legislative functions and responsibilities for the protection and promotion of human rights under the HREOC Act. Part II Divisions 2 and 3 of the HREOC Act confer functions on the Commission in relation to human rights. In particular, s 11(1)(f) of the HREOC Act empowers the Commission to inquire into acts or practices of the Commonwealth that may be inconsistent with or contrary to the rights set out in the human rights instruments scheduled to or declared under the HREOC Act.
Section 11(1 )(f) of the HREOC Act states:
1. The functions of the Commission are:
(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:
- where the Commission considers it appropriate to do so - to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
- where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement - to report to the Minister in relation to the inquiry.
Section 3 of the HREOC Act defines an ‘act’ or ‘practice’ as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.
The Commission performs the functions referred to in s 11(1 )(f) of the HREOC Act upon the Attorney-General’s request, when a complaint is made in writing or when the Commission regards it desirable to do so (s 20(1) of the HREOC Act).
In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in s l0A of the HREOC Act, namely with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.
The Commission attempts to resolve complaints under the provisions of the HREOC Act through the process of conciliation. Where conciliation is not successful or not appropriate and the Commission is of the opinion that an act or practice constitutes a breach of human rights, the Commission shall not furnish a report to the Attorney-General until it has given the respondent to the complaint an opportunity to make written or oral submissions in relation to the complaint (s 27 of the HREOC Act).
If, after the inquiry, the Commission finds a breach of human rights, it must serve a notice on the person doing the act or engaging in the practice setting out the findings and the reasons for those findings (s 29(2)(a) of the HREOC Act). The Commission may make recommendations for preventing a repetition of the act or a continuation of the practice, the payment of compensation or any other action to remedy or reduce the loss or damage suffered as a result of the breach of a person’s human rights (s 29(2)(b) and (c) of the HREOC Act).
If the Commission finds a breach of human rights and it furnishes a report on the matter to the Attorney-General, the Commission is to include in the report particulars of any recommendations made in the notice (s 29(2 )(d)) of the HREOC Act) and details of any actions that the person is taking as a result of the findings and recommendations of the Commission (s 29(2)(e) of the HREOC Act). The Attorney-General must table the report in both Houses of Federal Parliament within 15 sitting days in accordance with s 46 of the HREOC Act.
- Available on DFAT’s website at http://www.dfat.gov.au/hr/hr_manual_2004/index.html
- See paragraph 13.4.
-  Gauthier v Canada633/95 para 13.6.
-  Kim v Republic of Korea (574/94), paragraph 12.5.
-  S Joseph et al The International Covenant on Civil and Political Rights, 2 nd edition OUP 2004 at 530.
-  M Nowak UN Covenant on Civil and Political Rights: CCPR Commentary NP Engel 1993 at 355-6.
-  See similarly Gauthier, where the relevant restriction was said to be ‘arguably’ provided by law in that it was a decision made under the authority of the speaker and thus supported by the law of Parliamentary privilege ( para 13.5).
-  (1995) 183 CLR 273.
-  953/2000.
-  See at para [8.5].
-  See at para [13.5].
-  See Gauthier at para [13.6].
updated 26 April 2006.