Speech by Professor Rosalind Croucher AM, President Australian law Reform Commission, at ALRC Freedoms Symposium, Federal Court, Melbourne, 30 September 2015.

Introduction

Welcome to this evening’s symposium. On behalf of the Australian Law Reform Commission I would like to express my thanks to the Federal Court for allowing us to use this venue. I would also like to acknowledge especially, ALRC part-time Commissioners, the Hon Justice John Middleton of the Federal Court, our gracious Chair this evening, and Emeritus Professor Suri Ratnapala, of the University of Queensland. And of course many thanks to Professors Stone, Gans and Groves, who are our stars tonight.

I would like to begin my contribution by acknowledging the traditional custodians of this land, and to pay my respects to the elders, past and present, of the Kulin nation and I also acknowledge any Indigenous guests in the audience today.

2015 is the 800th anniversary of the sealing of the first iteration of what has become known as the Magna Carta, or ‘great charter’.[1] It is an appropriate year in which to reflect upon rights and freedoms—particularly as those freedoms have become embedded in our law.

This symposium is the fourth of a series of national symposia focusing on aspects of the inquiry the ALRC has been conducting over the past year or so. The first one, held in Brisbane on 5th September, focused on property rights. In Adelaide, on 21 September, the topic was ‘Accommodating rights? Religion, Speech and Equality in Australia’. In Perth, on 29 September, the focus was ‘Freedom’s Limits: Speech, Association and Movement in the Australian Legal System’. The final symposium will take place in Sydney on 5 October on ‘Proportionality and the Constitution’. Each one has a stellar cast—as evidenced, for example, by the magnificent line-up today.

My job is to provide context for the presentations to follow by describing the ALRC’s Freedom’s Inquiry.

The Freedoms Inquiry

The Attorney-General, Senator the Hon George Brandis QC, presented the ALRC with a challenging project, looking at encroachments in Commonwealth laws on ‘traditional rights, freedom and privileges’, and whether such encroachments are justified.[2] We have called it the ‘Freedoms inquiry’.

We have two main tasks. The first is to identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges, which are listed in nineteen dotpoints. Some of those are represented in the focus of our symposium tonight, principally those focused on the courts, trials and litigation.

The Interim Report, released at the beginning of August, sets out many of the Commonwealth laws that may be said to interfere with the common law rights and freedoms listed in the Terms of Reference. It provides an extensive survey of such laws.[3] But it is set out without making judgment about them.

The second task is to critically examine those laws to determine whether the encroachment is appropriately justified. We have been asked to focus on, but not limit our work to, three areas: commercial and corporate regulation; environmental regulation; and workplace relations.

This is an extremely broad reference and also very philosophical on many levels. The anchor word in the Terms of Reference is ‘encroachment’; and the central task is to determine when encroachments may be ‘appropriately justified’. The focus on encroachment means that, strictly speaking, we are not examining protections of rights. There is no bright line, of course, between ‘protections’ and ‘encroachments’, and, indeed, we point to the various protections offered in, for example, bills of rights and international instruments. But at times the distinction is important—and the Interim Report clearly reflects this approach.

What the ALRC has to do is to take the challenging questions of the Terms of Reference and to render these into sensible, principled recommendations for law reform. That is the art of the ALRC’s work; and our processes, honed over 40 years, enable us to do so respectfully, building stakeholder rapport, and deliver a report for government within the designated timeframe—in this case, by December this year.

The Interim Report is the second consultation document in the inquiry. It is a substantial document—and it needed to be, to achieve the coverage and the depth on all of the areas in the Terms of Reference, and to a similar extent. Even then, we had to ‘dance lightly’ across the range to achieve this. No-one has done this before—and certainly not since Enid Campbell and Harry Whitmore wrote Freedoms in Australia (1966 and 1973). We have received very positive feedback, both from our Advisory Committee and in consultations, as to this approach. Today we open this up for another kind of conversation, tackling three key themes: fair trial, procedural fairness and other traditional rights, each of which draws in aspects of litigation in one way or another, and sit well as a group.

The focus of the ALRC’s second task is to tackle the question of whether encroachments on rights are ‘appropriately justified’. We have been careful to unpick the word ‘justified’. This word, and our task, might be considered on two broad levels. The first involves asking, ‘justified by what measure’, testing the law according to a particular measure or standard, such as a proportionality standard. Laws that pass this standard might be said to have been substantively justified. This is the most commonly used meaning of the word justified, in this context, and it is the main focus of the Freedoms Inquiry. The second level concerns asking, ‘by what process’, focusing on the processes that lead to the making of the law—the procedural justification. We use both senses of the word.

In terms of substantive justification, we explore the place and role of ‘proportionality’. Although it is commonly used by courts to test the validity of laws that limit constitutional rights, proportionality tests can also be a valuable tool for law makers and others to test the justification of laws that limit important, even if not constitutional, rights and principles—like the common law rights and freedoms we are looking at in our inquiry.

Proportionality also comes into play in procedural justifications, perhaps better described as the various scrutiny processes surrounding the making of laws. Although the standard is not prescribed in its enabling Act, proportionality is used by the Parliamentary Joint Committee on Human Rights as part of the parliamentary scrutiny processes for proposed legislation since it was established in 2011.

Processes of legislative scrutiny are especially important as an aspect of rights review, where it is the processes of parliament that provide the testing ground for rights encroachment. Rigorous processes for scrutinising laws may be more important in jurisdictions in which Parliament, rather than the courts, is the primary guardian of rights and freedoms and has the ultimate responsibility to balance rights with the public interest.

And in terms of the ‘ex post facto’ review processes, law reform bodies such as the ALRC also routinely consider rights and freedoms in their work. Because of the close relationship between many traditional common law rights and many human rights protected by international covenants and instruments, an important role is also played by the Australian Human Rights Commission. This may be conducted under a reference from the Attorney-General, or because it appears to the AHRC desirable to do so, to determine whether it is compatible with Australia’s international human rights obligations.[4]

In the Interim Report, and in the final report, rather than making specific judgments on particular areas of law, we are signalling where further work may be undertaken—some of this indeed could be undertaken by the ALRC, but there are a number of other bodies, or standing agencies that could also do so.

Other significant monitoring roles are performed by the Independent National Security Legislation Monitor (INSLM), currently Roger Gyles QC, who must review, on his or her own initiative, or arising from a reference from the Prime Minister or the Committee on Intelligence and Security, the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation, and any other laws which relate to counter-terrorism or national security.[5] As part of its review, the INSLM must consider whether these provisions contain appropriate safeguards to protect the rights of the individual, and are proportionate and necessary.[6]

And the list goes on …

One aspect of what we are doing is to map how all of these scrutiny processes fit together. The context of parliamentary supremacy means, essentially, that the fact that laws encroach on rights, freedoms and privileges must be confronted squarely, stated unambiguously (if tested in courts against the principle of legality), and owned politically (ie, suffer the political consequences at election time).

This doesn’t mean that Parliament’s answers are always ‘right’.—Rights-minded people may well differ on their answers to rights encroachment. Parliament’s answers—including bi-partisan ones—are not necessarily ‘right’. The ‘pragmatic’, in political terms, is not necessarily ‘pure’. Bi-partisanship, for example, is a political answer to confronting rights encroachment and taking it on nonetheless. That is why institutional review mechanisms are so important, in providing mid- to long-term checks to balance out possible short-term overreach.

To finish my introductory comments, I would like to refer to something that the Hon Michael Kirby AC CMG, the foundation Chairman of the ALRC, said in 2008, about the role of permanent law reform bodies in keeping ‘the flame of ideas’ alight.[7] Through our wide conversation this evening, we will help to fan those flames.


*              BA (Hons) LLB PhD AMusA FRSA FACLM (Hon) FAAL TEP, President, Australian Law Reform Commission (ALRC); Professor of Law, Macquarie University, on leave for the term of the appointment to the ALRC.

[1]             The various iterations of the document are described by James Spigelman, ‘Magna Carta in its Medieval Context’, Banco Court, Supreme Court of NSW, 22 April 2015: <http://www.supremeco urt.justice.nsw.gov.au/Documents/spigelman_22042015.pdf>. See also, Paul Brand, ‘Magna Carta and the Development of the Common Law’, Academy of Law Patron’s Address, Sydney, 18 May 2015: <http://www.academyoflaw.org.au/publication?id=17>.

[2]             The Terms of Reference are included on the ALRC’s website: <http://www.alrc.gov.au/inquiries/freedoms>.

[3]             A list of all the statutory provisions cited in the Interim Report is included at Appendix A. Lists of certain laws that limit rights are also set out in G Williams, Submission 76; Institute of Public Affairs, Submission 49.

[4]             Australian Human Rights Commission Act 1986 (Cth) s 11(1)(e).

[5]             Independent National Security Legislation Monitor Act 2010 (Cth) s 6(1).

[6]             Ibid s 6(1)(b).

[7]             Michael Kirby, ‘Law Reform—Past, Present and Future’, Address to the Alberta Law Reform Institute, Monday 2 June 2008, 30.

Published on 2 October 2015.