Encroachments on Freedoms— The ALRC Freedoms Inquiry

NSW Bar Association, 10 November 2016, Sydney, Professor Rosalind Croucher AM*

[Note: Professor Croucher spoke to this paper, so the text below is not an exact transcript of the recording of the presentation—some comments were added, especially at the beginning; and some parts of the text were somewhat condensed in presentation]

Acknowledgments

As the Head of an Australian Government agency, and in the spirit of our Reconciliation Action Plan, I begin my presentation by acknowledging the traditional custodians of this land, and pay my respect to the elders, past and present, and to acknowledge emerging community leaders of the Gadigal people of the Eora nation and acknowledge Indigenous guests attending today.

The Freedoms Inquiry

Trent Glover invited me to speak about the ALRC’s Report on traditional rights and freedoms, which was completed late last year.[1] I always like to speak about our work and so I was delighted when I received the invitation to speak to the NSW Bar Association’s Human Rights Committee tonight.

When the Attorney-General, the Hon Senator George Brandis QC, launched the report on 2 March 2016 he said that he gave us the inquiry because he considered ‘that the human rights debate in Australia, which is an extremely important debate, has in recent years been unbalanced by insufficient attention to the liberal rights, in particular by insufficient attention to freedom, the most fundamental of all the human rights’.[2]

As 2015 was the 800th anniversary of the sealing of the first iteration of what became known as the Magna Carta,[3] it was an appropriate year in which to reflect upon rights and freedoms—particularly as those rights and freedoms have become embedded in our law. The Freedoms inquiry (as we called it) was also an extraordinarily fitting way to mark the celebrations of the ALRC’s 40th anniversary.[4]

The Terms of Reference for the inquiry set out two main tasks. The first was to identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges; the second was to critically examine those laws to determine whether the encroachment was appropriately justified. It was like all of your legal essays rolled into one—and very philosophical on many levels.

What are ‘traditional rights, freedoms and privileges’? This broad, encompassing expression was explained in the Terms of Reference as covering nineteen things, including, for example laws that interfered with freedom of speech, freedom of religion and vested property rights; laws that reversed or shifted the onus of proof, abrogated client legal privilege, retrospectively changed legal rights, altered criminal law practices based on the principle of a fair trial, restricted access to the courts and denied procedural fairness—all in one inquiry. It was clearly a significant, and long, list.[5] 

The tasks in the Terms of Reference occupied the ALRC fully for 18 months.[6] It also provided a singular opportunity to explore rights and freedoms within the context of the common law—as many of the rights, freedoms and privileges listed in the Terms of Reference may be seen as creatures of the common law.[7]

But it was an enormous challenge. How do you craft a methodology to get around all of the rights, freedoms and privileges in the list? How do you tackle the problem of identifying laws that encroach unjustifiably on rights and freedoms?

The Freedoms Inquiry was so different from previous ALRC inquiries. Using inquiries since 2005 as examples, Terms of Reference have generally focused on:

• particular areas of Commonwealth law—such as Copyright, Classification, and Discovery in Federal Courts;
• harmonisation of laws—such as uniform evidence; interaction of laws across the federal-state legal systems—such as the 2010 Family Violence inquiry; and
• broad social justice issues involving Commonwealth laws—such as disability and barriers to older workers engaging in the workforce.

Such inquiries have not involved canvassing all Commonwealth laws. An inquiry that did do so was the secrecy inquiry in 2009, which involved a mapping exercise to identify and analyse the multitude of secrecy provisions in Commonwealth legislation. But for establishing the list of provisions that comprised Appendix 4 of the Secrecy Report, Secrecy Laws and Open Government in Australia (ALRC Report 112, 2009), the ALRC was able to identify provisions quite readily, although it did involve a painstaking trawling through the Commonwealth statute book, alphabetically, from ‘A New Tax System etc Act’.[8]

The Freedoms inquiry posed different challenges. The review of Commonwealth laws involved two questions: identifying those that ‘encroach’ on traditional rights, freedoms and privileges, and that do so unjustifiably. Both issues, encroachment and the inappropriateness of that encroachment, are not certain—and most unlike a provision to impose a criminal sanction for a breach of a secrecy obligation. Hence the methodology to undertake the tasks in the Terms of Reference required a different focus.

Our approach was to split it up. First of all we recognised that it was almost a ‘hiding to nothing’ to try and identify every law in the Commonwealth statute book that could amount to an ‘encroachment’ on a right. The landscape shifts so quickly—as McHugh J observed in Malika Holdings v Stretton, ‘nearly every session of Parliament produces laws which infringe the existing rights of individuals’.[9] And then what of a law that encroaches on a right, viewed at large, but which might be considered a natural limit to the right itself: things like freedom of speech, freedom of movement and freedom of property are not totally open canvasses in and of themselves. In terms of characterisation, is a law one that encroaches on a right, or is it rather a natural limit of it?

Important rights often clash with each other, so that some must necessarily give way, at least partly, to others. Freedom of movement, for example, does not give a person unlimited access to another person’s private property; and convicted murderers must generally lose their liberty, in part to protect the lives and liberties of others. Individual rights and freedoms will also sometimes clash with a broader public interest—such as public health or safety, or, indeed, national security.

So, what we did was to undertake an extensive survey of laws that may be seen to interfere with the common law rights and freedoms in the Terms of Reference, but without making concluded judgments as to whether the laws might be considered to be ‘appropriately justified’. It is a somewhat ‘flat’ list, but indicative of the first point: that there are many laws that may be said to ‘encroach’ on rights. The final Report includes 13 pages listing them. Many come up in multiple places, particularly those that are captured under the broad banner of ‘counter-terror’ laws.

The harder question was about the issue of justification and how you decide whether an encroachment is ‘justified’ appropriately or not. This took us into some methodologically difficult territory, but also the enormous practical problem: how could we achieve a law reform result with an appropriate evidence base that stretched across such a wide canvas? The principal difference in the outcomes of the Freedoms Report from others that have considered particular areas of law, was to identify laws that may be unjustified and meriting further review in many areas. Given the breadth of the Inquiry, we considered that more detailed recommendations for reform—other than the reviews suggested—would require dedicated projects and further evidence, consultation and analysis. In a number of specific areas the ALRC has already undertaken inquiries, and the recommendations in the final reports of those inquiries provide a foundation upon which Government may act.[10] The highlighting of laws that warrant further consideration or review provides a road map for future work to ensure that encroachments on rights, freedoms and privileges are avoided or appropriately justified.

The most significant achievement of the Freedoms Report, in my view, is the contribution to the broader discussion and debate about protecting rights in democratic societies. We achieved this through providing a discussion of the source and rationale of each of the traditional rights and freedoms listed in the Terms of Reference; an analysis of the ways that protection from statutory encroachment is given to traditional rights and freedoms by the Constitution, principles of statutory interpretation and international law—complementing work that considers other ways to protect rights; and the ways that issues of encroachment on rights need to be interrogated and, ultimately, assessed, to ensure that laws that limit traditional rights and freedoms are thoroughly scrutinised and encroachments justified.

I found the process a most enlightening journey—particularly in relation to the deeply embedded nature of rights protection in our common law and also the extent of ‘rights-mindedness’ that is built into our scrutiny and monitoring processes of laws: before, during and after passage through parliament. In the next part of my presentation this evening I would like to share with you some of that journey.

Contextual Landscape for the Protection of Rights

The common law

The rights, freedoms and privileges that the ALRC considered under the Terms of Reference have a long and distinguished heritage, embodying key moments in constitutional history: after Magna Carta, the landmark event was the settlement of parliamentary supremacy against the King following the ‘Glorious Revolution’ of 1688 with the enactment of the Bill of Rights Act 1688.[11] The rights and freedoms were recognised and developed by the courts and through legislation — through the common law.

But such rights now also overlap with rights collectively called ‘human rights’, arising principally from the wave of international conventions in the aftermath of the Second World War, such as the Universal Declaration of Human Rights in 1948,[12] and, more recently, the International Covenant on Civil and Political Rights (ICCPR) in 1976.[13] Common law rights and human rights have also influenced each other in their history and development.[14] The common law, it has been said, is ‘a vibrant and rich source of human rights’.[15] Indeed, Murphy J even referred to ‘the common law of human rights’.[16]

In the Freedoms inquiry we began the exploration of the common law’s protection of rights and freedoms in Australia by identifying the relevant provisions of the Australian Constitution and by considering rules of statutory construction, such as the principle of legality.

The Australian Constitution

The Constitution expressly protects a handful of rights: the right to trial by jury on indictment for an offence against any law of the Commonwealth;[17] freedom of trade, commerce and intercourse within the Commonwealth;[18] freedom of religion;[19] and the right not to be subject to discrimination on the basis of the state in which one lives.[20] There is also the requirement that if the Commonwealth compulsorily acquires property, it must do so on ‘just terms’,[21] which may also be conceived of as a right.[22]

The High Court has also found certain rights or freedoms to be implied in the Constitution—notably, freedom of political communication.[23] This freedom is not absolute, but any law that interferes with political communication must be ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’.[24] This is essentially a ‘proportionality’ test—a matter to which I will return later.

The Australian Constitution reflects a different approach to rights from, for example, the United States, with its codification of rights through a series of amendments to its constitution.[25] The first and the second of these amendments are regularly in the news: the first including the freedom of speech and freedom of the press; the second protecting ‘the right to bear arms’.

In the 1992 High Court case, Australian Capital Television v Commonwealth, Dawson J suggested that those who drafted the Australian Constitution

preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers. Their model in this respect was, not the United States Constitution, but the British Parliament, the supremacy of which was by then settled constitutional doctrine.[26]

That Australia did not go down that road, Professor Helen Irving argues, was due to the ‘general reserve about directly including policy in the Constitution, instead of powers subsequently to enact policy’. ‘Specifically’, Irving said,

the British legal tradition (in which in fact the ideas of freedom and ‘fair play’, far from being overlooked, were thought central) largely relied on the common law, rather than statute or constitutional provision to define and protect individual rights and liberties. This approach was adopted for the most part by the Australians in constitution-making. It explains in large degree the shortage (as it is now perceived) of explicit statements of ideals and guarantees of rights, and descriptions of essential human and national attributes.[27]

It is not that the constitutional tradition Australia inherited from Britain was ‘opposed to rights’ but, as Professor Jeffrey Goldsworthy observed, it was ‘opposed to judges having power to protect them from interference by legislation’.[28]

However while Parliament was supreme, laws it passed were not immune from judicial consideration, through the principle of statutory construction known as the ‘principle of legality’. Lord Robin Cooke described this as the ‘classic theory of English “public law”’: that Parliament ‘is sovereign, supreme, omnicompetent’.[29] But, as he quoted, ‘[e]ven under the British system of undiluted sovereignty, the last word on any question of law rests with the courts’.[30] And this takes us to the ‘principle of legality’.

The principle of legality

The Hon Robert French AC, Chief Justice of the High Court, has said that

many of the things we think of as basic rights and freedoms come from the common law and how the common law is used to interpret Acts of Parliament and regulations made under them so as to minimise intrusion into those rights and freedoms.[31]

By reading down laws to minimise possible encroachments on rights and freedoms, the common law—through statutory interpretation—plays a role in protecting them. Indeed, as the Hon James Spigelman AC QC has said, the ‘protection which the common law affords to the preservation of fundamental rights is, to a very substantial degree, secreted within the law of statutory interpretation’.[32]

This has become known as the principle of legality;[33] and it may be found at least as far back as Sir William Blackstone and Jeremy Bentham.[34] In 1987, in the High Court case of in Re Bolton; Ex parte Beane, Brennan J stated the principle in these terms: ‘[u]nless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation’.[35]

The principle does not, however, ‘constrain legislative power’.[36] Subject to the Constitution, Parliament has the power to modify or extinguish common law rights. As Chief Justice Robert French said, the principle does not ‘authorise the courts to rewrite statutes’.[37] It will therefore have a very limited application where encroaching on a right is the clear object of a statute,[38] — where it is made ‘unmistakably clear’. This is particularly relevant in the context of counter-terror laws, the very point of which, in many respects, is to encroach upon rights for a specific security objective directed against the gross violation of fundamental rights to life and safety through terrorist acts. And, indeed, ‘national security’ is recognised as a legitimate objective of limitations on rights, both at common law and in international human rights law.[39]

But, as Lord (later Baron, also known as ‘Lennie’) Hoffmann said in 2002, the principle of legality means ‘that Parliament must squarely confront what it is doing and accept the political cost’.^[40] The ‘political cost’ of the decision was also something referred to by French CJ: the interpretation of legislation takes place ‘against the backdrop of the supremacy of Parliament’, which can qualify or extinguish rights and freedoms by ‘clear words’—but words ‘for which it can be held politically accountable’.[41] Political accountability means that you can get voted out.

In 1994, in the case of Coco v The Queen, the High Court suggested that, what this requirement in the principle of legality of unmistakable clarity achieves, is to enhance the parliamentary process of rights scrutiny by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.[42]

Rigorous processes for scrutinising laws are especially crucial where it is Parliament, not the courts, that is the primary guardian of rights and freedoms and has the ultimate responsibility to balance rights with the public interest. The Freedoms inquiry provided an opportunity to bring these scrutiny processes to the fore; and to interrogate their role in protecting rights and freedoms as part of the processes of justification engaged in to secure the passage of laws through parliament—a lens of procedural justification.[43]

This takes us to the question of justification.

Justification

We looked at justification through two lenses: procedural and substantive.

Procedural justification

In Australia, for example, several parliamentary committees consider whether proposed laws are compatible with rights. The Senate Standing Committee on Regulations and Ordinances, established in 1932, considers whether disallowable instruments ‘unduly trespass on rights and liberties’.[44] The Senate Standing Committee for the Scrutiny of Bills, established in 1981, also considers bills from this perspective.[45] The newest of the scrutiny committees, the Parliamentary Joint Committee on Human Rights, established in 2011, has a more specific brief, focused on compatibility with international human rights instruments.[46] Then, at the same time, the Parliamentary Joint Committee on Intelligence and Security, established in 2001, while not expressly required to consider the impact on rights as part of its review of Bills, in practice the Committee does look at matters that are relevant to whether encroachments on rights are justified, in considering whether a Bill provides adequate safeguards and accountability mechanisms.[47]

Scrutiny of laws for compatibility with rights may be seen as part of the ‘democratic culture of justification’;[48] or what I have called ‘rights-mindedness’.

Moreover, the procedural justificatory processes are not just expressed in the work of the parliamentary committees, extending both before and after Parliament. Policy development and legislative drafting in Australia do not take place in a rights vacuum. In developing policies, for example, government departments are encouraged to think about the effect a proposed law will have on fundamental rights. Bills and disallowable legislative instruments presented to Parliament must now have a ‘statement of compatibility’ that assesses the legislation’s compatibility with the rights and freedoms in seven international human rights instruments (which include most of the traditional rights and freedoms in the ALRC’s Terms of Reference). There is considerable guidance material available.[49] Some of it is being updated; other material needs it, particularly in light of the relatively new role of the Joint Committee on Human Rights.

Other bodies have ongoing monitoring briefs. The Independent National Security Legislation Monitor (INSLM), in particular, plays a key role in the vigilance concerning rights in considering the operation, effectiveness and implications of Australia’s counter-terrorism and national security laws.[50] As part of its review, the INSLM must consider whether these laws contain appropriate safeguards to protect the rights of the individual, and are proportionate and necessary.[51] The ALRC and Australian Human Rights Commission (AHRC) also have similar rights-minded lenses.[52]

In a lecture delivered in 2006, the Mayo Lecture, under the theme of ‘Reconciling Human Rights and Counter-Terrorism—A Crucial Challenge’, the Hon Justice John von Doussa AO, then President of the predecessor to the AHRC, reflected on the importance of parliamentary scrutiny and procedures for ensuring compatibility of laws with human rights.[53] He did so in comparing some of the positive aspects of justificatory processes in the UK, reflective of the influence of the Human Rights Act 1998 (UK), noting in particular how the pre-legislative requirements for parliamentary scrutiny could ‘integrate effectively human rights principles into the law and policy making process’.[54] While noting the importance of the scrutiny processes in Australia, he pointed to the then weakness of the absence of a requirement for a human rights compatibility statement—and especially in the context of counter-terrorism laws.[55] He concluded that a good way of achieving the balance between national security and human rights ‘would be for Parliamentarians to follow a process that requires the consideration of human rights principles in the formulation of new laws and policies’.[56] Precisely this requirement was introduced in 2011 with the introduction of the Parliamentary Joint Committee on Human Rights.

So there is a lot of scrutiny going on: questions being asked, challenges put. But this does not mean that Parliament always gets it ‘right’. This is where political accountability comes in. Institutional review mechanisms are also important in providing mid- to long-term checks to balance out possible short-term overreach. But there is also room for improvement. The ALRC identified a number of possibilities, about the level of overlap in the work of the three main scrutiny committees, the time constraints, the range of rights covered by each and the differences in the scrutiny applied.[57] Rights-mindedness has improved in our parliamentary scrutiny processes—but there is scope for reform.

Substantive justification

When it comes to the question of evaluating laws, the question of substantive justification, we explored the emergence of the standard of ‘proportionality’ as a way of assessing the appropriateness of limitations on rights. Laws that interfere with traditional rights and freedoms may be necessary for many reasons: there are reasonable limits, after all, even to fundamental rights.

Only a handful of rights—such as the right not to be tortured, the right to life and the right not to be held in slavery—are considered to be ‘absolute’ in international human rights law.[58] A common way of determining whether a law that limits rights is justified is by asking whether the law is proportionate.[59] This concept is commonly used by courts to test the validity of laws that limit rights protected by constitutions and statutory bills of rights.[60] For example, limits on rights in the ICCPR are recognised in the text itself; and are elaborated upon in the so-called ‘Siracusa Principles’.[61] In the Freedoms Report we discussed what a structured proportionality analysis involves, namely: the consideration of whether a given law that limits important rights has a legitimate objective and is suitable and necessary to meet that objective, and whether—on balance—the public interest pursued by the law outweighs the harm done to the individual right.[62]

Proportionality has been called the ‘most important doctrinal tool in constitutional rights law around the world for decades’[63] and ‘the orienting idea in contemporary human rights law and scholarship’.[64] Proportionality may now also be said to have been received to some extent into the constitutional doctrine of courts in Australia—as, for example, in the context of the constitutional implied right to political communication.[65] However, in Roach v Electoral Commissioner, Gleeson CJ expressed reservations about an ‘uncritical translation’ of proportionality into Australia from jurisdictions with human rights instruments and wider powers of judicial review.[66] In Momcilovic, Heydon J suggested that the proportionality test in the Victorian Charter created ‘difficult tasks’ that should be for legislatures, not judges.[67]

Some of these concerns may not arise when the proportionality analysis is being applied by law makers, parliamentary committees and others to test the merits of laws, rather than by courts. A good example is the application of a proportionality test by the Parliamentary Joint Committee on Human Rights. The Committee’s Guide to Human Rights states:

A key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. Even if the objective is of sufficient importance and the measures in question are rationally connected to the objective, the limitation may still not be justified because of the severity of its impact on individuals or groups.[68]

Then in a guidance sheet about permissible limits on rights, the Attorney-General’s Department includes a list of ‘useful questions to ask when assessing whether a measure limiting a right is reasonable, necessary and proportionate’:

Will the limitation in fact lead to a reduction of that problem? Does a less restrictive alternative exist, and has it been tried? Is it a blanket limitation or is there sufficient flexibility to treat different cases differently? Has sufficient regard been paid to the rights and interests of those affected? Do safeguards exist against error or abuse? Does the limitation destroy the very essence of the right in issue?[69]

While the ALRC Report did not propose that one particular method must always be used to test the justification for laws that limit traditional rights and freedoms, we concluded that proportionality tests offered a valuable way of structuring critical analysis, particularly as part of that rights-mindedness that should become the normal way of thinking. They call for a considerable degree of rigour, and are clearly more thorough than unsupported statements that ‘a law is justified because it is in the public interest’. Asking questions about limitations on rights should, moreover, become part of the standard vocabulary of lawyers.

Roadmap for reform

What of our roadmap for future reform? Having undertaken the extensive survey of current Commonwealth laws that may limit each right and freedom, and considered the issue of ‘justification’, we identified some laws that may be unjustified and therefore warrant further review. These were selected following consideration of a number of factors, including whether the law has been criticised for limiting rights in submissions, parliamentary committee reports or other commentary. The fact that a law limits multiple rights also sometimes suggested the need for further review. Where a law was identified as being amenable to further review, the conclusion may be that the appropriate action is:

• a review of specific statutes or provisions;
• a review in a coordinated fashion across Commonwealth, state and territory laws;
• consideration as part of existing regular review and monitoring processes; and/or
• a new periodic review.

The fact that a law was identified as meriting further review did not imply that we concluded that the law was unjustified. Further evidence and analysis would be necessary to support such specific conclusions and any reforms in response. Here we made suggestions across a wide range of areas.

I have chosen some examples to illustrate some conclusions reached.

Examples of areas signalled for review

Freedom of speech

Freedom of speech should be in the headlines every day—and, lately, it has been. Sometimes it becomes politicised around certain issues, but it is part of our deeply embedded respect for rights in the common law. It has been described as ‘the freedom par excellence; for without it, no other freedom could survive’;[70] and it is closely linked to other fundamental freedoms, such as freedom of religion, thought, and conscience.

In Australia, legislation prohibits, or renders unlawful, speech or expression in many different contexts—including in relation to various terrorism offences and terrorism-related secrecy offences, other secrecy laws and, of course, the Racial Discrimination Act 1975 (Cth). At the same time, many limitations on speech have long been recognised by the common law itself, such as in relation to incitement to crime, obscenity and sedition. But one provision that the ALRC identified as amenable to further review was s 18C of the Racial Discrimination Act.

The enactment of the Racial Discrimination Act brings into domestic law the International Convention on the Elimination of all Forms of Racial Discrimination.[71] While recognising the need for racial vilification laws, pursuant to this Convention, the ALRC concluded that s 18C may be too broad, because it can capture conduct that ‘offends’ people on the basis of their race. ‘Offence’ may be too low a threshold for vilification. While we did not seek to establish whether the provision has, in practice, caused any particular unjustifiable interference with freedom of speech, we concluded that this part of the Racial Discrimination Act may unjustifiably interfere with freedom of speech by extending to speech that is reasonably likely to ‘offend’ people because of their race. We also suggested that it would be a mistake to review s 18C in isolation. While the provision may go too far in some respects, there are also serious questions about whether current laws provide adequate protection against more serious hate speech. Moreover, all Australian states have racial discrimination legislation in many ways similar to the Racial Discrimination Act, but the approaches to vilification and other conduct based on racial hatred are not uniform.[72] Hence we suggested that a review of s 18C would also provide the opportunity to consider harmonising Commonwealth, state and territory laws in this area.

The main arguments in favour of s 18C relate to the need to prohibit racial vilification—public acts that encourage or incite others to hate people because of their race, nationality, country of origin, colour or ethnic origin. But the concept of vilification carries with it a sense of extreme abuse or hatred of its object, provoking hostile and even violent responses. This requires something going beyond simply giving offence. Arguably, the words of s 18C are not limited to racial vilification.

Section 18C is broader than is required under art 20 of the International Covenant on Civil and Political Rights; and it is broader than equivalent New Zealand and UK provisions which do not cover mere offensiveness, and require that the person provoke hostility or hatred against a group of persons.[73] In 2013, a broader provision in the Canadian Human Rights Act was repealed, including because the provision conflicted with the ‘freedom of thought, belief, opinion and expression’ protected by the Canadian Charter of Human Rights and Freedoms.[74]

In Australia, there are also questions about constitutional validity, which have not yet been tested before the High Court, although they may, in due course, very soon.[75] Section 18C may be vulnerable to challenge on two fronts: that the provision extends beyond Australia’s international obligations supported by the external affairs power; and the implied freedom of political communication. In this context, the High Court has observed that ‘insult and invective’ are a legitimate part of political discussion and debate.[76] The inclusion of the words ‘offend’ and ‘insult’ in the provision raises a possibility that the High Court, in an appropriate case, might read down the scope of s 18C, or find it invalid.[77]

Section 18C is not the only Commonwealth law that encroaches on free speech. While it is widely recognised that freedom of speech is not absolute, the ALRC report identifies other laws that may unjustifiably limit free speech. In addition to s 18C, the report highlights: counter-terrorism laws, in particular, the offence of advocating terrorism; and various terrorism-related secrecy offences, in particular those relating to ‘special intelligence operations’.

On Tuesday morning 8 November, just as I was writing this paper for tonight’s presentation, the Attorney-General announced an inquiry by the Parliamentary Joint Committee on Human Rights that expressly picks up the discussion in our report in Chapter 4. The first point in the Terms of Reference for the inquiry is:

1. Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss 18C and 18D should be reformed.

Counter-terror laws

Our report also made some observations about counter-terrorism and national security laws. Given that the Government has both a right and a duty to take action to protect its citizens from acts of terrorism,^[78] legislation that places limits on traditional rights and freedoms may be required.

In his Mayo Lecture, John von Doussa commented that the

idea that human rights are antithetical to national security fails to recognise the fact that international human rights law was forged in the wake of a devastating period of global conflict and already strikes a balance between security interests and the rights which are considered fundamental to being human.[79]

Counter-terrorism and national security laws that encroach on rights and freedoms should nevertheless be justified, to ensure the laws are suitable, necessary and represent a proper balance between the public interest and individual rights: that is, satisfy a test of proportionality.

In the Freedoms Report, a range of counter-terrorism and national security laws were identified that interfere with traditional rights and freedoms. In addition to the laws that limit freedom of speech (for example, laws about advocating terrorism and disclosing intelligence operations); there are laws that limit freedom of association and assembly (for example, control orders, preventative detention orders, and laws about foreign incursions and recruitment); laws that impose strict or absolute liability (for example, in relation to offences for disclosing certain classified operational information); and laws that change fair trial procedures (for example, to protect sensitive information about national security). And some counter-terrorism laws engage multiple rights.[80]

Counter-terrorism and national security laws should clearly be subject to ongoing and careful review, given the extent to which they may interfere with individual rights. John von Doussa also emphasised this in 2006:

Regular and independent review of counter-terrorism laws is vital given the potential of some laws to disproportionately curtail fundamental human rights like the right to liberty and the right to a fair trial.[81]

One of the key ideas identified by von Doussa was the establishment of a permanent independent reviewer. Four years after his Mayo Lecture, such an initiative was implemented with the establishment of the Independent National Security Legislation Monitor (INSLM) in 2010, to which I referred above.

While some of the laws identified in the Freedoms Report have been subject to significant scrutiny, including by parliamentary committees and the INSLM, it has been suggested that many are not proportionate, and would benefit from further consideration and analysis, using a structured proportionality approach. Vigilance; monitoring; and an appropriate standard of review are the keys.

This very week some further amendments were before Parliament: the Counter-Terrorism Legislation Amendment Bill (No 1) 2016. As the Explanatory Memorandum notes, the Bill includes provisions ‘implementing recommendations contained in the February 2016 advisory report of the Parliamentary Joint Committee on Intelligence and Security (the Committee) on the 2015 Bill (the Committee advisory report), and recommendations made by the Independent National Security Legislation Monitor (INSLM) in his February 2016 Report on the impact on journalists of section 35P of the ASIO Act (INSLM report)’.[82] On 9 November the Bill passed its Second Reading stage in the Senate. While clearly limiting rights and freedoms, this demonstrates the scrutiny and vigilance processes in action.

Freedom of religion

Another of the freedoms we were expressly asked to consider was freedom of religion.[83] Religious freedom involves positive and negative aspects. The positive involves the ‘freedom to actively manifest one’s religion or beliefs in various spheres (public or private) and in myriad ways (worship, teaching and so on)’,^[84] the negative is freedom from coercion or discrimination on the grounds of religious or non-religious belief.^[85] The positive exercise of religion—according to certain ‘canons’, ‘standards’ or ‘codes’ of conduct—is a source of potential conflict between freedom in the exercise of religious beliefs and the exercise by others of other rights and freedoms.

While it has been said that ‘the struggle for most of the principal civil liberties we have today originated in the struggle for various aspects of religious liberty’,^[86] the common law itself has provided little protection for freedom of religion.^[87] Indeed, legal protection of religious freedom is a relatively modern phenomenon: British history is punctuated by acts of Parliament that discriminated against some groups on the basis of religion;[88] and European history in general is peppered with religious persecution as more the norm, driving many groups to flee. Puritans and Catholics alike fled to the American colonies in the early 17^th century; and some Huguenots fled to London and other places after Louis XIV’s Edict of Fontainebleau 1685, which banned Protestantism in France. In England, the Act of Toleration of 1689—a reform Act of its day—allowed freedom of worship to Protestants who dissented from the Church of England (known as Nonconformists), but not to Catholics, atheists or believers of other faiths such as Judaism.[89] An example which continued until March last year was the Royal Marriages Act 1772, which provided the conditions of a valid royal marriage including that, to succeed to the throne, an heir must marry from within the Church of England.[90]

In Australia we enjoy the freedom to worship and observe religion, and the freedom not to be coerced into engaging in religious practices. Australian courts have stated that freedom of religion is the ‘paradigm freedom of conscience’ and ‘of the essence of a free society’.[91] There are very few, if any, provisions in Commonwealth laws that interfere with religious freedom. But there are areas of tension, where religious freedom intersects with anti-discrimination laws, which have the potential to limit the exercise of freedom of conscience outside settings of worship.

Commonwealth anti-discrimination law makes it unlawful to discriminate against a person on the basis of a person’s personal attributes, such as their sex or sexual orientation, in areas of public life including employment, education and the provision of goods, services and facilities. These laws, such as the Sex Discrimination Act 1984 (Cth), are intended to give effect to Australia’s international treaty obligations, and other relevant international instruments, and to eliminate various forms of discrimination that have negative social, health, and financial effects for individuals and society. But there are exemptions for religious organisations and religious educational institutions. These exemptions apply where the discriminatory act or conduct conforms to the doctrines, tenets or beliefs of a religion, or is necessary to avoid injury to the religious sensitivities of adherents of that religion. For example the Sex Discrimination Act includes exemptions in relation to:

• provision of accommodation by religious bodies—s 23(3)(b);
• the ordination or appointment of priests, ministers of religion or members of any religious order, the training or education of persons seeking ordination or appointment, the appointment of persons to perform religious duties or functions, and any other act or practice of a body established for religious purposes that ‘conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’— s 37; and
• to the employment of staff and the provision of education and training by educational institutions established for religious purposes, provided that the discrimination is in ‘good faith in order to avoid injury to the religious susceptibilities of adherents of that religion’—s 38.

The effect of these exemptions is that a religious school, for instance, may lawfully choose not to employ a pregnant, unmarried teacher, in circumstances where this would be discriminatory conduct for a non-religious organisation (unless it would breach state or territory law). Where the exemptions do not apply, or are too narrow, anti-discrimination law may be considered as encroaching on religious freedom.

Not surprisingly, we received submissions that were in stark contrast: some arguing that freedom of religion needs to be protected more fully. Others, by contrast, suggested that the existing exemptions for religious organisations should be narrowed or removed, not widened.

A broader concern of stakeholders is that freedom of religion may be vulnerable to erosion by anti-discrimination law if religious practice or observance is respected only through exemptions to general prohibitions on discrimination. An alternative approach would involve the enactment of general limitations clauses, under which legislative definitions of discrimination would recognise religious practice or observance as lawful discrimination, where the conduct is a proportionate means of achieving legitimate religious objectives.

We concluded that, while there is no obvious evidence that Commonwealth anti-discrimination laws significantly encroach on freedom of religion in Australia, there is nevertheless a degree of community concern, as evidenced by the 2015 religious freedom roundtables convened by the AHRC.[92] We suggested that any concerns about freedom of religion should be considered in future initiatives directed towards the consolidation of Commonwealth anti-discrimination laws: in particular, that further consideration should be given to whether freedom of religion should be protected through a general limitations clause rather than exemptions. Other opportunities to review concerns about freedom of religion and anti-discrimination law may arise in future initiatives directed towards the harmonisation of Commonwealth, state and territory anti-discrimination laws.

A number of stakeholders also raised concerns about possible implications for freedom of religion, if the Commonwealth were to legislate to permit same-sex marriage.[93] These include that celebrants may face legal consequences under anti-discrimination law for refusing to solemnise or register marriages; and, more broadly, that wedding service providers should be able to conscientiously object to providing associated services.

It has been suggested that, in the event that the Marriage Act is amended to provide for same-sex marriage, consideration should be given to whether celebrants who have a genuine religious or conscientious objection to solemnising a marriage of persons of the same sex should be able to refuse to solemnise a marriage of persons of the same sex. Provision could be made, for example, for authorised celebrants to register a genuine religious or conscientious objection with registrars of marriage celebrants. Such provisions, protecting a right to ‘conscientiously object’, have been advocated by the then Australian Human Rights Commissioner, Tim Wilson.[94]

And what about the ‘wedding cake’ problem? There have been suggestions that the law should permit individuals to conscientiously object to providing goods, services and facilities in relation to the solemnisation of a same-sex marriage—such as the supply of a wedding cake.[95]

Parliament has made it unlawful to discriminate in the provision of goods, services and facilities on the grounds of sexual orientation (with some limited exemptions for religious organisations, but not otherwise for individuals). It is not clear that freedom to manifest religion or belief should extend to refusing to provide, for example, a wedding cake for a same-sex couple.[96] Protecting individuals from discrimination in ordinary trade and commerce, as distinct from acts of worship, seems a proportionate limitation on freedom of religion. As Lady Hale, the Deputy President of the Supreme Court of the United Kingdom has observed:

Denying some people a service which you are prepared to offer others is deeply harmful to them. It is reminiscent of the days when women were not allowed to order their own drinks at the bar in certain establishments and landlords were allowed to say ‘no blacks here’. It is a denial of their equal dignity as human beings.[97]

Property rights

Another area considered in the Freedoms Report concerned interference with property rights. To grapple with what amounted to an ‘interference’ in this context the ALRC analysed the idea of ‘property rights’, what protections there are from statutory encroachments and justifications for interferences with those rights. Interferences with personal property rights and real property rights were separately considered. The main focus of concern of stakeholders was interferences with land and water; and many issues here traversed areas of Commonwealth and state responsibilities.

The common law has long regarded a person’s property rights as fundamental.[98] ‘The Englishman’s home is his castle’—an adage that was picked up in the movie, ‘The Castle’, concerning a man’s defence of his home against the proposed expansion of the adjoining airport. However, property rights could be encroached upon by legislative action, ‘by the law of the land’,[99] so long as any deprivation was not arbitrary and reasonable compensation was given.[100] Property rights could be affected by law, controlled or diminished by laws, but an ‘alienation’ or ‘divesting’ had to be exercised ‘with caution’, and in return for a ‘reasonable price’.[101] In the Australian context, such questions are framed by s 51(xxxi) of the Constitution—the ‘just terms’ provision.[102]

Most attention her concerned environmental laws and their ability to reduce the commercial uses to which property can be applied.[103] Justifications from an environmental perspective include that: environmental laws are necessary to implement international agreements; they are in the public interest; and that safeguards exist.

State and territory governments are primarily responsible for the management of native vegetation and biodiversity; and states have legislative power in relation to internal waters. State environmental laws were not the concern of the Freedoms inquiry, but from the landholder’s perspective the complexity of the ‘interference’ with property rights can only be understood in the light of both state and Commonwealth laws. Concerns were expressed, for example, about potential Commonwealth involvement in state ‘interferences’ with property rights because the Commonwealth may financially assist states with respect to natural resources management.[104] Further, the Commonwealth has significant policy responsibility for water management in the Murray-Darling Basin.[105] At the Commonwealth level, the ALRC heard complaints about both the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the Water Act 2007 (Cth).[106]

The EPBC Act is the central piece of Commonwealth environmental legislation.[107] It does interfere with the right to use land—but only to a limited extent. Existing uses of the land are left intact, although approval is required to change the existing use of the land where the proposed action has, or is likely to have, a ‘significant’ impact on a matter of national environmental significance. In most cases development proposals are approved, subject to conditions. Very few proposals have been refused. An independent review of the EPBC Act was completed in late 2009 and the next scheduled review is to be completed by 2019.

In the European context, a proportionality test has been used to determine whether interferences with real property rights caused by environmental laws are justified.[108] The ALRC suggested that the next scheduled review of the EPBC Act could apply such an approach and reassess whether the interferences are proportionate as well as exploring a range of compensatory mechanisms. This review may also afford an opportunity for consideration of the interrelationship of Commonwealth and state law.[109]

The way that water is treated by law proved an interesting illustration of property rights, and tensions arising between private and public interests. Water is an example of something that is regarded as common (publici juris),[110] or a ‘public asset’,[111] like air or light. It is not itself the subject of ownership,[112] but certain rights may exist in relation to it. The nature of those rights has changed over time: from common law to statutory rights.

The common law of water provided quite limited rights to individual landholders although people have an enlarged view in terms of what they think in terms of their ‘castle’ when it comes to rights to water. While the water itself was not capable of ownership, a landowner had certain rights in relation to it, depending on whether the water was under the land (‘percolating’ water), or in a watercourse that flowed through or adjoined the property. In the case of percolating water, the landowner was permitted to draw any or all of it without regard to the claims of neighbouring owners.[113] In the case of water flowing through land, the ‘riparian’ owner had certain valuable, but limited, rights: to fish; to the flow of water, subject to ordinary and reasonable use by upper riparian owners and to a corresponding obligation to lower riparian owners;[114] and to take and use (‘abstract’) all water necessary for ordinary purposes and other reasonable uses.

The common law principles applied to Australia at colonisation, but from an early stage it was clear that ‘the driest inhabited Continent’[115] needed a different approach.[116] Water management regimes based on the assertion of state control and the grant of a range of licences were introduced in place of common law rights.[117] Limits were also set on the amount of water that may lawfully be taken.[118] The common law ‘private’ rights were altered pursuant to a wider sense of ‘public’ interest, particularly as it reflected environmental concerns.

The environmental concerns were expressed in terms of restricting private use of water to agreed limits and managing water systems.[119] The management of the latter required both state and Commonwealth involvement, with an increasing shift towards the Commonwealth, particularly in relation to waterways that cross state boundaries, as in the Murray-Darling Basin.[120] This led to the passage of the Water Act 2007 (Cth), designed ‘to enable the Commonwealth, in conjunction with the Basin States, to manage the Basin water resources in the national interest’.[121]

There were two messages that we concluded in our work. The first was that hardly anyone understands the way the Water Act works. The other was that where legislation of that kind covers such a wide area and with intersections with state and territory laws, periodic reviews, looking at how the legislation is fulfilling its objectives and relates to state and territory laws, are a good idea.

Where there are tensions about the application of such key legislation and its impact on property rights, as expressed to the ALRC during the Inquiry,[122] an independent review can interrogate such matters. The Water Act s 253 provided for such a review, which was completed in late 2014.[123] However the ALRC noted that the Water Act did not provide for periodic review, as is the case with the EPBC Act, and that it may be appropriate for the Water Act also to be reviewed periodically.[124] The impact on the individual landholder as well as the environmental outcomes and compensation mechanisms can then be assessed through the lens of proportionality. In the meantime, the ALRC considered that public understanding of the Water Act could be promoted by clear educational material.

Conclusion

In reflecting on the nature of the achievements of our report, the Councils for Civil Liberties singled out the impact of the inquiry in generating a ‘national focus on the rapidly increasing numbers of statutes which undermine our rights and freedoms’.[125] Identifying and critically examining laws that limit rights plays a crucial part in protecting them, and may inform decisions about whether, and if so how, such laws might be amended or repealed. The Report may therefore be seen to complement work that considers other ways to protect rights—such as by creating new causes of action or new offences, or even by enacting a charter or bill of rights. Whether the introduction of a bill of rights in Australia is desirable is widely debated and hotly contested,^[126] and draws in part upon historical arguments about whether the courts or parliaments are better guardians of individual rights.^[127] I note that the matter is currently under consideration in Queensland with strong arguments expressed in opposition by those like the New South Wales Solicitor-General, Michael Sexton SC; and in favour, by Rob Hulls, contradicting Sexton.^[128] That question was not the subject of the Inquiry.

The Freedoms Report therefore provides a timely contribution therefore to a broader discussion and debate about protecting rights in democratic societies. That law and law reform have an important role to play in this discussion was recognised by the Attorney in launching the report when he said:

I genuinely believe this to be an historic document. Not merely a body of topic specific law reform which is the usual work of the ALRC, but a benchmark document which will be serviceable to governments and parliaments in all the years to come.[129]

I trust that my presentation this evening has given you some insights into the ALRC’s work in this challenging inquiry from the perspective of seeing the strength of the common law in identifying and protecting rights; and reinforcing the rights-mindedness that should be the mental state of all lawyers, indeed all citizens.

The Common Law and the Protection of Rights, Freedoms and Privileges: Insights from the ALRC Freedoms Inquiry, The Mayo Lecture for 2016, James Cook University, Townsville, 12 September 2016 by Professor Rosalind Croucher AM*

Introduction

Thank you, Ed Harridge, President of the James Cook University (JCU) Student Association, for inviting me to present the Marylyn Mayo Lecture for 2016. I am deeply honoured to be included in the veritable honour roll of former Mayo Lecturers.

I understand that some special guests are here in person and that I am being ‘beamed in’ via videoconferencing to others in Cairns: in person, Professor Iain Gordon (Deputy Vice Chancellor, Division of Tropical Environment and Societies); Professor David Low (Dean of The College of Business, Law and Governance); Mandy Shircore (Head of Law); and Professor Steve Graw, former Head of the School of Law; and in spirit form, Dr John Mayo and my esteemed friend Professor Sally Kift (Deputy Vice Chancellor, Academic).

JCU staff, students and friends.

I will begin with acknowledgements—and they are most important ones. The first is to the traditional custodians of this land, paying my respect to the elders, past and present of the Bindal and Wulgurukaba People and to acknowledge Indigenous guests attending today.

The second is to honour the connection of JCU with Eddie Koiki Mabo. As I am a legal historian and former teacher of property law, Eddie Mabo’s story is dear to my heart. When a gardener at JCU in 1974, Eddie chatted about his land on Mer (Murray Island) with JCU academics Noel Loos and Henry Reynolds. This conversation started a ball rolling that ended up, on 3 June 1992, in the High Court’s decision in Mabo & Ors v Qld (No 2), upholding the continuity of Koiki Mabo’s title to his land on Murray Island and with it, slaying the dragon of terra nullius. It was a fortuitous—serendipitous—meeting, combining principle, passion and champions.

The third and most particular acknowledgement is to another champion, a woman of principle and passion, Mrs Marylyn Eve Mayo (née Mason).

On my office bookshelf is a tome entitled A Woman’s Place—100 years of Queensland Women Lawyers, published in 2005. The cover highlighted in the suffragette colours of green, violet and white (a mnemonic of ‘GVW’ – give votes to women), I won the book in a silent auction at the 2006 conference of the International Association of Women Judges. Meeting in Sydney that year, with the Hon Jane Matthews AC as the then President, I was delighted to participate in the planning committee for the event and then doubly honoured by the appointment as ‘Rapporteur’ for the conference. A bonus was that this also gave me the chance to participate in the wonderful silent auction, a highlight of each biennial conference, where each judicial officer brings an item reflective of her home country. I won two items: the wonderful book, signed by many of the subjects it contains; and a ‘toby jug’ of Margaret Thatcher, from the House of Commons shop, the contribution of Dame Brenda Hale, now Baroness Hale of Richmond, for which I engaged in a quiet bidding war—as befits a ‘silent’ auction—with a New Zealand judge. The proceeds of such auctions go to supporting women judges from developing countries to attend future such conferences. I am delighted to assist so positively in that worthy cause! (The exceptional provenance of my prize is confirmed in Baroness Hale’s signature on the box).

Marylyn Mayo was a natural inclusion in the chapter in the Queensland book, titled ‘Women Lawyers at the Frontier’. Among the group, there is a section dedicated to ‘Women Lawyers in Academia’, including a special group credited ‘for giving inspiration to future generations of Queensland women lawyers’. Here we find Marylyn Mayo.[1] Marylyn’s academic career began in 1969, with her appointment as lecturer in law in the University of Queensland’s Townsville outpost, University College — and here she stayed for over 25 years. The Hon Dame Quentin Bryce AC CVO ‘pipped’ Marylyn as the first woman lawyer to be appointed an academic staff member in Queensland, when Quentin joined the staff of the University of Queensland as a part-time tutor in 1968.[2] Perhaps next in this hierarchy, after Marylyn, was the Hon Justice Margaret White AO, appointed Senior Tutor at UQ in 1970.

Although Marylyn was a kiwi, a law graduate of the University of Auckland, she embraced Queensland as her home with her appointment in Townsville. She also shortly ditched her maiden name of ‘Mason’ and became Mrs Mayo, when Townsville brought her not only an academic career but also her husband, Dr John Mayo, then in the Department of Economics, whom she married in 1970.

Marylyn taught the first year of the LLB, located in the Department of History—the only law offering outside the Commerce departments. For the latter years students had to go elsewhere to complete their LLBs. When the Hon Justice Marcia Neave AO presented the Mayo Lecture in 2006, she recalled that when she was teaching at Melbourne law School, some of her students had had to transfer to ‘the chilly depths of Melbourne’ after first year law in Townsville. ‘They were not pleased’, Neave wrote.[3]

Marylyn was a ‘much loved law teacher’,[4] but she wanted more: a separate Law Faculty at JCU. And she got it, in 1989, assisted by the influence of Chancellor Sir George Kneipp, a judge of the Supreme Court,[5] with the first JCU law graduates graduating in May 1992. This is recorded as her most significant achievement and ‘the realisation of her dream’.[6] Marylyn was appointed the Foundation Head of School of Law and acting Dean until 1990,[7] when Professor Ken Sutton took up the position of Foundation Professor of Law and Dean. Marylyn remained as his Deputy until 1993 and retired in 1996.

That big book writes that Marylyn was ‘an inspirational mentor for many women in North Queensland’.[8] In her Mayo Lecture in 2010, the Hon Justice Margaret McMurdo AC, described Mrs Mayo as ‘trailblazing’ and that ‘Townsville does trail-blazing women well’, claiming also Queensland’s first woman lawyer Agnes McWhinney, admitted as a solicitor in 1915.[9]

Hence it is wonderfully fitting that the Law Students of JCU honour Marylyn Mayo in this annual lecture, instituted in 1991 while Marylyn was still very much in harness, and that the Marylyn Mayo Medal is awarded to the student who achieves the highest results in the LLB with Honours.

But Marylyn’s life was filled with more than a passion for legal education. Her mother, Mavis, was an artist and imbued in her daughter a love of the visual arts. After Marylyn’s most untimely death in 2002, the Marylyn Mayo Foundation was established by her husband, Dr John Mayo, for the benefit of a number of causes, including cancer research, legal research at the University of Auckland Law School, and initiatives at the Auckland Art Gallery.[10]

She is a woman I would have liked to have met. John [Mayo], you must be very proud of her. Perhaps in adding my own contribution to the growing honour roll of Mayo Lecturers (at my count this is the 26^th), I can doff my academic hat to her across time and place.

And now to my specific topic, as requested by Ed Harridge.

The Freedoms Inquiry

I was asked to speak about the Freedoms inquiry of the Australian Law Reform Commission (ALRC), completed late last year.[11] On 2 March 2016 the Attorney-General, the Hon Senator George Brandis QC launched the Report that completed the inquiry, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, ALRC Report 129, in Canberra. As the Attorney said on that occasion, giving us the inquiry to the ALRC reflected his view ‘that the human rights debate in Australia, which is an extremely important debate, has in recent years been unbalanced by insufficient attention to the liberal rights, in particular by insufficient attention to freedom, the most fundamental of all the human rights’.[12]

As 2015 was the 800th anniversary of the sealing of the first iteration of what became known as the Magna Carta,[13] it was an appropriate year in which to reflect upon rights and freedoms—particularly as those rights and freedoms have become embedded in our law. The Freedoms inquiry (as we called it) was also an extraordinarily fitting way to mark the celebrations of the ALRC’s 40th anniversary.[14] (It was marvellous!)

The Terms of Reference for the inquiry set out two main tasks. The first was to identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges; the second was to critically examine those laws to determine whether the encroachment was appropriately justified. It was an extremely broad reference and also very philosophical on many levels. It was like all of your legal essays rolled into one. The anchor word in the Terms of Reference was ‘encroachment’; and the central task was to determine when encroachments may be ‘appropriately justified’.

What are ‘traditional rights, freedoms and privileges’? This broad, encompassing expression was explained in the Terms of Reference as covering nineteen things, including, for example laws that interfered with freedom of speech, freedom of religion and vested property rights; laws that reversed or shifted the onus of proof, abrogated client legal privilege, retrospectively changed legal rights, altered criminal law practices based on the principle of a fair trial, restricted access to the courts and denied procedural fairness—all in one inquiry. It was clearly a significant, and long, list.[15]

The inquiry provided a singular opportunity to explore rights and freedoms within the context of the common law—as many of the rights, freedoms and privileges listed in the Terms of Reference may be seen, indeed, as creatures of the common law.[16] Talking about such matters tonight can be seen to complement the Mayo Lectures over the years, many of which have had a focus on rights.

But it was an enormous challenge. How do you craft a methodology to get around all of the rights, freedoms and privileges in the list? How do you tackle the problem of identifying laws that encroach unjustifiably on rights and freedoms?

The Freedoms Inquiry was so different from previous ALRC inquiries. Using inquiries since 2005 as examples, Terms of Reference have generally focused on: particular areas of Commonwealth law—such as Copyright, Classification, and Discovery in Federal Courts; harmonisation of laws—such as uniform evidence; interaction of laws across the federal-state legal systems—such as the 2010 Family Violence inquiry; and broad social justice issues involving Commonwealth laws—such as disability and barriers to older workers engaging in the workforce. Such inquiries have not involved canvassing all Commonwealth laws. An inquiry that did do so was the secrecy inquiry in 2009, which involved a mapping exercise to identify and analyse the multitude of secrecy provisions in Commonwealth legislation. But for establishing the list of provisions that comprised Appendix 4 of the Secrecy Report, Secrecy Laws and Open Government in Australia (ALRC Report 112, 2009), the ALRC was able to identify provisions quite readily, although it did involve a painstaking trawling through the Commonwealth statute book—literally from ‘A New Tax System etc Act’.[17]

The Freedoms inquiry posed different challenges. The review of Commonwealth laws involved two questions: identifying those that ‘encroach’ on traditional rights, freedoms and privileges, and that do so unjustifiably. Both issues, encroachment and the inappropriateness of that encroachment, are not certain—and most unlike a provision to impose a criminal sanction for a breach of a secrecy obligation. Hence the methodology to undertake the tasks in the Terms of Reference required a different focus.

Our approach was to split it up. First of all we recognised that it was almost a ‘hiding to nothing’ to try and identify every law in the Commonwealth statute book that could amount to an ‘encroachment’ on a right. The landscape shifts so quickly—as McHugh J observed in Malika Holdings v Stretton, ‘nearly every session of Parliament produces laws which infringe the existing rights of individuals’.[18] And then what of a law that encroaches on a right, viewed at large, but might be considered a natural limit to the right itself: things like freedom of speech, freedom of movement and freedom of property are not totally open canvasses in and of themselves. In terms of characterisation, is a law one that encroaches on a right, or is it rather a natural limit of it?

Important rights often clash with each other, so that some must necessarily give way, at least partly, to others. Freedom of movement, for example, does not give a person unlimited access to another person’s private property; and convicted murderers must generally lose their liberty, in part to protect the lives and liberties of others. Individual rights and freedoms will also sometimes clash with a broader public interest—such as public health or safety, or, indeed, national security.

So, what we did was to undertake an extensive survey of laws that may be seen to interfere with the common law rights and freedoms in the Terms of Reference, but without making concluded judgments as to whether the laws might be considered to be ‘appropriately justified’. It is a somewhat ‘flat’ list, but indicative of the first point: that there are many laws that may be said to ‘encroach’ on rights. The final Report includes 13 pages listing them. Many come up in multiple places, particularly those that are captured under the broad banner of ‘counter-terror’ laws.

The harder question was about the issue of justification and how you decide whether an encroachment is ‘justified’ appropriately or not. This took us into some methodologically difficult territory, but also the enormous practical problem: how could we achieve a law reform result with an appropriate evidence base that stretched across such a wide canvas?

We used the 18 months of the inquiry to conduct the consultative processes that are tried and tested by the ALRC, based on community consultation, and focused on two consultation documents: in this case an Issues Paper and an Interim Report. A particular highlight of this inquiry was also the national series of symposia, in September and October 2015, focusing on aspects of the inquiry highlighted in the Interim Report. The principal difference in the outcomes of the Freedoms Report from others that have considered particular areas of law was to identify laws that may be unjustified and meriting further review. Given the breadth of the Inquiry, we considered that more detailed recommendations for reform—other than the reviews suggested—would require dedicated projects and further evidence, consultation and analysis. In a number of specific areas the ALRC has already undertaken inquiries, and the recommendations in the final reports of those inquiries provide a foundation upon which Government may act.[19] The highlighting of laws that warrant further consideration or review provides a road map for future work to ensure that encroachments on rights, freedoms and privileges are avoided or appropriately justified.

The most significant achievement of the Freedoms Report, in my view, is the contribution to the broader discussion and debate about protecting rights in democratic societies. We achieved this through providing a discussion of the source and rationale of each of the traditional rights and freedoms listed in the Terms of Reference; an analysis of the ways that protection from statutory encroachment is given to traditional rights and freedoms by the Constitution, principles of statutory interpretation and international law—complementing work that considers other ways to protect rights; and the ways that issues of encroachment on rights need to be interrogated and, ultimately, assessed, to ensure that laws that limit traditional rights and freedoms are thoroughly scrutinised and encroachments justified.

I found the process a most enlightening journey—particularly in relation to the deeply embedded nature of rights protection in our common law and also the extent of ‘rights-mindedness’ that is built into our scrutiny and monitoring processes of laws: before, during and after passage through parliament. In the next part of my presentation this evening I would like to share with you some of that journey.

Contextual landscape for the protection of rights

The rights, freedoms and privileges that the ALRC considered under the Terms of Reference have a long and distinguished heritage, embodying key moments in constitutional history: after Magna Carta, the landmark event was the settlement of parliamentary supremacy against the King following the ‘Glorious Revolution’ of 1688 with the enactment of the Bill of Rights Act 1688.[20] The rights and freedoms were recognised and developed by the courts and through legislation — through the common law.

But such rights now also overlap with rights collectively called ‘human rights’, arising principally from the wave of international conventions in the aftermath of the Second World War, such as the Universal Declaration of Human Rights in 1948,[21] and, more recently, the International Covenant on Civil and Political Rights (ICCPR) in 1976.[22] Common law rights and human rights have also influenced each other in their history and development.[23] The common law, it has been said, is ‘a vibrant and rich source of human rights’.[24] Indeed, Murphy J even referred to ‘the common law of human rights’.[25]

In the Freedoms inquiry we began the exploration of the common law’s protection of rights and freedoms in Australia with the Australian Constitution and by considering rules of statutory construction, such as the principle of legality.

The Australian Constitution

In her Mayo Lecture in 2013, entitled ‘Social Justice and the Constitution—Freedoms and Protections’, the Hon Justice Susan Kiefel AO explored freedoms that are guaranteed in the Constitution.[26] I commend her lecture to you. The Constitution expressly protects a handful of rights: the right to trial by jury on indictment for an offence against any law of the Commonwealth;[27] freedom of trade, commerce and intercourse within the Commonwealth;[28] freedom of religion;[29] and the right not to be subject to discrimination on the basis of the state in which one lives.[30] There is also the requirement that if the Commonwealth compulsorily acquires property, it must do so on ‘just terms’,[31] which may also be described as a right.[32]

The High Court has also found certain rights or freedoms to be implied in the Constitution—notably, freedom of political communication.[33] This freedom is not absolute, but any law that interferes with political communication must be ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’.[34] The freedom operates as ‘a constitutional restriction on legislative power’, rather than as a personal right.[35]

The Australian Constitution reflects a different approach to rights from, for example, the United States, with its codification of rights through a series of amendments to its constitution.[36] The first and the second of these amendments are regularly in the news: the first including the freedom of speech and freedom of the press; the second protecting ‘the right to bear arms’.

In the 1992 High Court case, Australian Capital Television v Commonwealth, Dawson J suggested that those who drafted the Australian Constitution

preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers. Their model in this respect was, not the United States Constitution, but the British Parliament, the supremacy of which was by then settled constitutional doctrine.[37]

That Australia did not go down that road, Professor Helen Irving argues, was due to the ‘general reserve about directly including policy in the Constitution, instead of powers subsequently to enact policy’. ‘Specifically’, Irving said,

the British legal tradition (in which in fact the ideas of freedom and ‘fair play’, far from being overlooked, were thought central) largely relied on the common law, rather than statute or constitutional provision to define and protect individual rights and liberties. This approach was adopted for the most part by the Australians in constitution-making. It explains in large degree the shortage (as it is now perceived) of explicit statements of ideals and guarantees of rights, and descriptions of essential human and national attributes.[38]

It is not that the constitutional tradition Australia inherited from Britain was ‘opposed to rights’ but, as Professor Jeffrey Goldsworthy observed, it was ‘opposed to judges having power to protect them from interference by legislation’.[39]

However, while Parliament was supreme, laws it passed were not immune from judicial consideration, through the principle of statutory construction known as the ‘principle of legality’. Lord Robin Cooke described this as the ‘classic theory of English “public law”’, that Parliament ‘is sovereign, supreme, omnicompetent’.[40] But, as he quoted, ‘[e]ven under the British system of undiluted sovereignty, the last word on any question of law rests with the courts’.[41] And this takes us to the ‘principle of legality’.

The principle of legality

The Hon Robert French AC, Chief Justice of the High Court, has said that

many of the things we think of as basic rights and freedoms come from the common law and how the common law is used to interpret Acts of Parliament and regulations made under them so as to minimise intrusion into those rights and freedoms.[42]

By reading down laws to minimise possible encroachments on rights and freedoms, the common law—through statutory interpretation—plays a role in protecting them. Indeed, as the Hon James Spigelman AC QC has said, the ‘protection which the common law affords to the preservation of fundamental rights is, to a very substantial degree, secreted within the law of statutory interpretation’.[43]

This has become known as the principle of legality and it may be found at least as far back as Sir William Blackstone and Jeremy Bentham.[44] In 1987, in the High Court case of in Re Bolton; Ex parte Beane, Brennan J stated the principle in these terms: ‘[u]nless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation’.[45]

The principle does not, however, ‘constrain legislative power’.[46] Subject to the Constitution, Parliament has the power to modify or extinguish common law rights. As Chief Justice Robert French said, the principle does not ‘authorise the courts to rewrite statutes’.[47] It will therefore have a very limited application where encroaching on a right is the clear object of a statute,[48] — where it is made ‘unmistakably clear’. This is particularly relevant in the context of counter-terror laws, the very point of which, in many respects, is to encroach upon rights for a specific security objective directed against the gross violation of fundamental rights to life and safety through terrorist acts. And, indeed, ‘national security’ is recognised as a legitimate objective of limitations on rights, both at common law and in international human rights law.[49]

But, as Lord (later Baron, also known as ‘Lennie’) Hoffmann said in 2002, the principle of legality means ‘that Parliament must squarely confront what it is doing and accept the political cost’.^[50] The ‘political cost’ of the decision was also something referred to by French CJ: the interpretation of legislation takes place ‘against the backdrop of the supremacy of Parliament’, which can qualify or extinguish rights and freedoms by ‘clear words’—but words ‘for which it can be held politically accountable’.[51] Political accountability means that you can get voted out.

In 1994, in the case of Coco v The Queen, the High Court suggested that this requirement of unmistakable clarity,[52] serves to enhance the parliamentary process of rights scrutiny by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.[53]

Rigorous processes for scrutinising laws are especially crucial where it is Parliament, not the courts, that is the primary guardian of rights and freedoms and has the ultimate responsibility to balance rights with the public interest. The Freedoms inquiry provided an opportunity to bring these scrutiny processes to the fore; and to interrogate their role in protecting rights and freedoms as part of the processes of justification engaged in to secure the passage of laws through parliament—a lens of procedural justification.[54]

In Australia, for example, several parliamentary committees consider whether proposed laws are compatible with rights. The Senate Standing Committee on Regulations and Ordinances, established in 1932, considers whether disallowable instruments ‘unduly trespass on rights and liberties’.[55] The Senate Standing Committee for the Scrutiny of Bills, established in 1981, also considers bills from this perspective.[56] The newest of the scrutiny committees, the Parliamentary Joint Committee on Human Rights, established in 2011, has a more specific brief, focused on compatibility with international human rights instruments.[57] Then, at the same time, the Parliamentary Joint Committee on Intelligence and Security, established in 2001, while not expressly required to consider the impact on rights as part of its review of Bills, in practice the Committee does look at matters that are relevant to whether encroachments on rights are justified, in considering whether a Bill provides adequate safeguards and accountability mechanisms.[58]

Scrutiny of laws for compatibility with rights may be seen as part of the ‘democratic culture of justification’;[59] or what I have called ‘rights-mindedness’.

Moreover, the procedural justificatory processes are not just expressed in the work of the parliamentary committees, extending both before and after Parliament. Policy development and legislative drafting in Australia do not take place in a rights vacuum. In developing policies, for example, government departments are encouraged to think about the effect a proposed law will have on fundamental rights. Bills and disallowable legislative instruments presented to Parliament must now have a ‘statement of compatibility’ that assesses the legislation’s compatibility with the rights and freedoms in seven international human rights instruments (which include most of the traditional rights and freedoms in the ALRC’s Terms of Reference). There is considerable guidance material available.[60] Some of it is being updated; other material needs it, particularly in light of the relatively new role of the Joint Committee on Human Rights.

And in terms of the review processes, once laws are passed by Parliament, law reform bodies such as the ALRC also routinely consider rights and freedoms in their work. Indeed under the Australian Law Reform Commission Act (Cth), we have a duty to ensure that the laws, proposals and recommendations we reviews, consider or make:

(a)          do not trespass unduly on personal rights and liberties or make the rights and liberties of citizens unduly dependent on administrative, rather than judicial, decisions; and

(b)          are, as far as practicable, consistent with Australia’s international obligations that are relevant to the matter.[61]

Both obligations reflect the lenses of the Parliamentary scrutiny committees.

Other bodies have ongoing monitoring briefs. The Independent National Security Legislation Monitor (INSLM), in particular, plays a key role in the vigilance concerning rights in considering the operation, effectiveness and implications of Australia’s counter-terrorism and national security laws.[62] As part of its review, the INSLM must consider whether these laws contain appropriate safeguards to protect the rights of the individual, and are proportionate and necessary.[63]

In his Mayo Lecture for 2006, ‘Reconciling Human Rights and Counter-Terrorism—A Crucial Challenge’, the Hon Justice John von Doussa AO, then President of the predecessor to the Australian Human Rights Commission, reflected on the importance of parliamentary scrutiny and procedures for ensuring compatibility of laws with human rights.[64] He did so in comparing some of the positive aspects of justificatory processes in the UK, reflective of the influence of the Human Rights Act 1998 (UK), noting in particular how the pre-legislative requirements for parliamentary scrutiny could ‘integrate effectively human rights principles into the law and policy making process’.[65] While noting the importance of the scrutiny processes in Australia, he pointed to the then weakness in the absence of a requirement for a human rights compatibility statement—and especially in the context of counter-terrorism laws.[66] He concluded that a good way of achieving the balance between national security and human rights ‘would be for Parliamentarians to follow a process that requires the consideration of human rights principles in the formulation of new laws and policies’.[67] Precisely this requirement was introduce in 2011 with the introduction of the Parliamentary Joint Committee on Human Rights.

So there is a lot of scrutiny going on: questions being asked, challenges put. But this does not mean that Parliament always gets it ‘right’. This is where political accountability comes in. Institutional review mechanisms are also important in providing mid- to long-term checks to balance out possible short-term overreach. But there is also room for improvement. The ALRC identified a number of possibilities, about the level of overlap in the work of the three main scrutiny committees, the time constraints, the range of rights covered by each and the differences in the scrutiny applied.[68] Rights-mindedness has improved; but there is scope for reform.

When it comes to the question of evaluating laws, we explored the emergence of the standard of ‘proportionality’ as a way of assessing the appropriateness of limitations on rights. Laws that interfere with traditional rights and freedoms may be necessary for many reasons: there are reasonable limits, after all, even to fundamental rights. Only a handful of rights—such as the right not to be tortured, the right to life and the right not to be held in slavery—are considered to be ‘absolute’ in international human rights law.[69] A common way of determining whether a law that limits rights is justified is by asking whether the law is proportionate.[70] This concept is commonly used by courts to test the validity of laws that limit rights protected by constitutions and statutory bills of rights.[71] But proportionality tests have a wider application than in courts, providing a valuable tool for law makers and others to test the justification of laws that limit other important—even if not strictly constitutional—rights and principles. In the Freedoms Report we discussed what a structured proportionality analysis involves, namely: the consideration of whether a given law that limits important rights has a legitimate objective and is suitable and necessary to meet that objective, and whether—on balance—the public interest pursued by the law outweighs the harm done to the individual right.[72]

Proportionality has been called the ‘most important doctrinal tool in constitutional rights law around the world for decades’[73] and ‘the orienting idea in contemporary human rights law and scholarship’.[74] It has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, and South Africa, as well as the jurisprudence of treaty-based legal systems such as the European Court of Human Rights, giving rise to claims of a global model, a received approach, or simply the best-practice standard of rights adjudication.[75]

Proportionality may now also be said to have been received to some extent into the constitutional doctrine of courts in Australia—as, for example, in the context of the constitutional implied right to political communication.[76] However, in Roach v Electoral Commissioner, Gleeson CJ expressed reservations about an ‘uncritical translation’ of proportionality into Australia from jurisdictions with human rights instruments and wider powers of judicial review.[77] In Momcilovic, Heydon J suggested that the proportionality test in the Victorian Charter created ‘difficult tasks’ that should be for legislatures, not judges.[78]

Some of these concerns may not arise when the proportionality analysis is being applied by law makers, parliamentary committees and others to test the merits of laws, rather than by courts. The application of a proportionality analysis in a non-court context is seen, for example, in the scrutiny of bills by Australian parliamentary committees. The Parliamentary Joint Committee on Human Rights, for example, applies a proportionality test.[79]

While the ALRC Report did not propose that one particular method must always be used to test the justification for laws that limit traditional rights and freedoms, we concluded that proportionality tests offered a valuable way of structuring critical analysis, particularly as part of that rights-mindedness that should become the normal way of thinking. They call for a considerable degree of rigour, and are clearly more thorough than unsupported statements that ‘a law is justified because it is in the public interest’. Proportionality is also used widely in many other countries and jurisdictions. Importantly, the use of proportionality tests suggests that important rights and freedoms should only be interfered with reluctantly—when truly necessary. Asking the questions about limitations on rights should, moreover, become part of the standard vocabulary of lawyers—and law teaching.

Roadmap for reform

What of our road map for future reform? Having undertaken the extensive survey of current Commonwealth laws that may limit each right and freedom, and considered the issue of ‘justification’, we identified some laws that may be unjustified and therefore warrant further review. These were selected following consideration of a number of factors, including whether the law has been criticised for limiting rights in submissions, parliamentary committee reports or other commentary. The fact that a law limits multiple rights also sometimes suggested the need for further review. Where a law was identified as being amenable to further review, the conclusion may be that the appropriate action is:

• a review of specific statutes or provisions;
• a review in a coordinated fashion across Commonwealth, state and territory laws;
• consideration as part of existing regular review and monitoring processes; and/or
• a new periodic review.

The fact that a law was identified as meriting further review did not imply that we concluded that the law was unjustified. Further evidence and analysis would be necessary to support such specific conclusions and any reforms in response. Here we made suggestions across a wide range of areas.

One area that we identified as being amenable to further review concerned freedom of speech, and, in particular aspects of the Racial Discrimination Act 1975 (Cth), including s 18C, which has been much in the news.[80] While we did not seek to establish whether the provision has, in practice, caused any particular unjustifiable interference with freedom of speech, we concluded that this part of the Racial Discrimination Act may unjustifiably interfere with freedom of speech by extending to speech that is reasonably likely to ‘offend’ people because of their race. We also suggested that it would be a mistake to review s 18C in isolation. While the provision may go too far in some respects, there are also serious questions about whether current laws provide adequate protection against more serious hate speech. Moreover, all Australian states have racial discrimination legislation in many ways similar to the Racial Discrimination Act, but the approaches to vilification and other conduct based on racial hatred are not uniform.[81] Hence we suggested that a review of s 18C would also provide the opportunity to consider harmonising Commonwealth, state and territory laws in this area.

We also made some observations about counter-terrorism and national security laws. Given that the Government has both a right and a duty to take action to protect its citizens from acts of terrorism,[82] legislation that places limits on traditional rights and freedoms may be required.

In his Mayo Lecture, on the theme of ‘Reconciling Human Rights and Counter-Terrorism’, John von Doussa commented that the

idea that human rights are antithetical to national security fails to recognise the fact that international human rights law was forged in the wake of a devastating period of global conflict and already strikes a balance between security interests and the rights which are considered fundamental to being human.[83]

Counter-terrorism and national security laws that encroach on rights and freedoms should nevertheless be justified, to ensure the laws are suitable, necessary and represent a proper balance between the public interest and individual rights: that is, satisfy a test of proportionality.

In the Freedoms Report, a range of counter-terrorism and national security laws were identified that interfere with traditional rights and freedoms. In addition to the laws that limit freedom of speech (for example, laws about advocating terrorism and disclosing intelligence operations); there are laws that limit freedom of association and assembly (for example, control orders, preventative detention orders, and laws about foreign incursions and recruitment); laws that impose strict or absolute liability (for example, in relation to offences for disclosing certain classified operational information); and laws that change fair trial procedures (for example, to protect sensitive information about national security). And some counter-terrorism laws engage multiple rights.[84]

Counter-terrorism and national security laws should clearly be subject to ongoing and careful review, given the extent to which they may interfere with individual rights. John von Doussa also emphasised this in 2006:

Regular and independent review of counter-terrorism laws is vital given the potential of some laws to disproportionately curtail fundamental human rights like the right to liberty and the right to a fair trial.[85]

One of the key ideas identified by von Doussa was the establishment of a permanent independent reviewer. Four years after his Mayo Lecture, such an initiative was implemented with the establishment of the Independent National Security Legislation Monitor (INSLM) in 2010, to which I referred above.

While some of the laws identified in the Freedoms Report have been subject to significant scrutiny, including by parliamentary committees and the INSLM, it has been suggested that many are not proportionate, and would benefit from further consideration and analysis, using a structured proportionality approach. Vigilance; monitoring; and an appropriate standard of review.

Conclusion

In reflecting on the nature of the achievements of our report, the Councils for Civil Liberties singled out the impact of the inquiry in generating a ‘national focus on the rapidly increasing numbers of statutes which undermine our rights and freedoms’.[86] Identifying and critically examining laws that limit rights plays a crucial part in protecting them, and may inform decisions about whether, and if so how, such laws might be amended or repealed. The Report may therefore be seen to complement work that considers other ways to protect rights—such as by creating new causes of action or new offences, or even by enacting a charter or bill of rights. Whether the introduction of a bill of rights in Australia is desirable is widely debated and hotly contested,^[87] and draws in part upon historical arguments about whether the courts or parliaments are better guardians of individual rights.^[88] I note that the matter is currently under consideration in Queensland with strong arguments expressed in opposition by those like the New South Wales Solicitor-General, Michael Sexton SC; and in favour, by Rob Hulls, contradicting Sexton.^[89] That question was not the subject of the Inquiry.

The Freedoms Report therefore provides a timely contribution therefore to a broader discussion and debate about protecting rights in democratic societies. That law and law reform have an important role to play in this discussion was recognised by the Attorney in launching the report when he said:

I genuinely believe this to be an historic document. Not merely a body of topic specific law reform which is the usual work of the ALRC, but a benchmark document which will be serviceable to governments and parliaments in all the years to come.[90]

I trust that my presentation this evening has given you some insights into the ALRC’s work in this challenging inquiry from the perspective of seeing the strength of the common law in identifying and protecting rights; and reinforcing the rights-mindedness that should be the mental state of all lawyers, indeed all citizens.

Marylyn Mayo, I am sure, would have used the Freedoms Report in her Jurisprudence lectures. Indeed it would not have surprised me at all to find her making a submission to the inquiry, perhaps even setting a task for her students like this:

‘The ALRC Freedoms Report identifies a structured proportionality test as a widely accepted tool for analysing whether a law that limits rights is reasonable. Apply such an approach with respect to one of the areas identified as being amenable to review in the Report.’

(Time frame? About 18 months. Word limit? Say, 250,000 words.)

Thank you again for inviting me to present the Marylyn Mayo Lecture for 2016. May each of us who deliver these lectures honour her memory and contribute, year by year, to the law school that was her aspiration and finest achievement.

Australian Government Legal Network, 29 July 2016, Canberra, by Professor Rosalind Croucher AM*

Transcript

[Square bracket notes indicate interpolated material. Not all the text was delivered.]

Acknowledgments

As the Head of an Australian Government agency, and in the spirit of our Reconciliation Action Plan, I begin my presentation by acknowledging the traditional custodians of this land, and pay my respect to the elders, past and present, and to acknowledge emerging community leaders of the the Ngunnawal and Ngambri peoples and acknowledge Indigenous guests attending today.

[Reference to comments about careers by James O’Loughlin and Chris Moraitis]

The Freedoms Inquiry

[Reference to comment by Chris Moraitis in his speech that ‘government lawyers need a mindset that understands the larger context’ as providing a wonderful segue into my talk. Reference to two articles in the ‘Legal Affairs’ section of The Australian that morning: the first about Justice Middleton, ALRC part-time Commissioner; the second by Rob Hulls, about why we should have a Bill of Rights, responding to the one by Michael Sexton, Solicitor General the week before on why we don’t need one. The Freedoms inquiry was not about a Bill of Rights, but some of what I want to talk about goes to that sort of issue. It provides the other, enormous, story that Government lawyers need to know and it is really the strength of the common law in protecting rights. So the inquiry provides a marvellous background in terms of that larger context.]

I was delighted to be invited by Rob Gascoigne to address the Australian Government Legal Network today on the Freedoms Inquiry of the Australian Law Reform Commission (ALRC) and to flag some matters arising that may be described as ‘on the horizon’.

On 2 March 2016 the Attorney-General, the Hon Senator George Brandis QC, launched the ALRC’s Report, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, ALRC Report 129. As the Attorney said on that occasion, that he gave us the inquiry reflected his view ‘that the human rights debate in Australia, which is an extremely important debate, has in recent years been unbalanced by insufficient attention to the liberal rights, in particular by insufficient attention to freedom, the most fundamental of all the human rights’.[1]

It is now almost five months since the launch and I have been busy all that time on a new inquiry, into how existing Commonwealth laws and legal frameworks could be improved to better safeguard and protect older Australian’s from elder abuse. On 15 June, coinciding with Elder Abuse Awareness Day, the ALRC released the first consultation document for this inquiry, an Issues Paper. So our work has clearly moved on since completing the Freedoms project and, while I have a captive audience, let me invite you to make submissions into the new inquiry: due at the ALRC by 18 August. And if this is too soon, there will a further opportunity for submissions in response to the Discussion Paper (due for release in November, with submissions closing in early February).

I led the Freedoms inquiry, assisted with the appointment of Emeritus Professor Suri Ratnapala as a Part-time Commissioner for the latter part of the inquiry, and was very excited to see the project come to fruition. As 2015 was the 800th anniversary of the sealing of the first iteration of what became known as the Magna Carta,[2] it was an appropriate year in which to reflect upon rights and freedoms—particularly as those rights and freedoms have become embedded in our law. The Freedoms inquiry (as we called it) was also an extraordinarily fitting way to mark the celebrations of the ALRC’s 40th anniversary.[3]

The Terms of Reference for the inquiry set out two main tasks. The first was to identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges; the second was to critically examine those laws to determine whether the encroachment was appropriately justified. It’s like all of your legal essays rolled into one. We were asked to focus, but not limit, our work to three areas: commercial and corporate regulation; environmental regulation; and workplace relations. This was an extremely broad reference and also very philosophical on many levels. The anchor word in the Terms of Reference was ‘encroachment’; and the central task was to determine when encroachments may be ‘appropriately justified’.

The idea of ‘traditional rights, freedoms and privileges’ is clearly a broad, encompassing expression. It was explained in the Terms of Reference for the purposes of the inquiry as covering nineteen things, including, for example laws that interfered with freedom of speech, freedom of religion and vested property rights; laws that reversed or shifted the onus of proof, abrogated client legal privilege, retrospectively changed legal rights, altered criminal law practices based on the principle of a fair trial, restricted access to the courts and denied procedural fairness. All in one inquiry. It was clearly a significant, and long, list.[4]

The tasks in the Terms of Reference occupied the ALRC fully for 18 months.[5] It also provided a singular opportunity to explore rights and freedoms within the context of the common law—as many of the rights, freedoms and privileges listed in the Terms of Reference may be seen as creatures, indeed, of the common law.[6]

I will begin this presentation by outlining the contextual landscape [which is the broader mindset, to which Chris [Maraitis] appealed] — the contextual landscape of the common law and how we approached that task of ‘appropriate justification’. I will follow this with some illustrations of areas that we singled out as being amenable to further review against the standard of appropriate justification discussed in the report to suggest the kinds of things that might be issues ‘on the horizon’.

Contextual Landscape

Protection of rights

The rights, freedoms and privileges that the ALRC considered under the Terms of Reference have a long and distinguished heritage in the common law. They embody key moments in constitutional history: including the sealing of the Magna Carta in 1215, the settlement of parliamentary supremacy against the King following the ‘Glorious Revolution’ of 1688 and the enactment of the Bill of Rights Act 1688,[7] which forms part of our constitutional history. The rights and freedoms were recognised and developed by the courts and through legislation (ie through common law).

But common law rights now also overlap with rights now collectively called ‘human rights’, arising principally from the wave of international conventions in the aftermath of the Second World War, such as the Universal Declaration of Human Rights[8] and more recently the International Covenant on Civil and Political Rights (ICCPR).[9] Common law rights and human rights have also influenced each other in their history and development.[10] The common law, it has been said, is ‘a vibrant and rich source of human rights’.[11] Indeed, Murphy J referred to ‘the common law of human rights’.[12]

In the Freedoms inquiry we began the exploration of the common law’s protection of rights and freedoms in Australia by identifying the relevant provisions of the Australian Constitution and by considering rules of statutory construction, such as the principle of legality.

The Australian Constitution

The Constitution expressly protects a handful of rights: the right to trial by jury on indictment for an offence against any law of the Commonwealth;[13] freedom of trade, commerce and intercourse within the Commonwealth;[14] freedom of religion;[15] and the right not to be subject to discrimination on the basis of the state in which one lives.[16] There is also the requirement that if the Commonwealth compulsorily acquires property, it must do so on ‘just terms’,[17] which may also be conceived of as a right.[18]

In addition, the High Court has found certain rights or freedoms to be implied in the Constitution—notably, freedom of political communication.[19] This freedom is not absolute, but any law that interferes with political communication must be ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’.[20] The freedom operates as ‘a constitutional restriction on legislative power’, rather than as a personal right.[21]

The Australian Constitution reflects a different approach to rights from, for example, the United States, with its codification of rights in its Constitution through a series of amendments.[22] That Australia did not go down that road, Professor Helen Irving states, was due to the ‘general reserve about directly including policy in the Constitution, instead of powers subsequently to enact policy’:

Specifically, the British legal tradition (in which in fact the ideas of freedom and ‘fair play’, far from being overlooked, were thought central) largely relied on the common law, rather than statute or constitutional provision to define and protect individual rights and liberties. This approach was adopted for the most part by the Australians in constitution-making. It explains in large degree the shortage (as it is now perceived) of explicit statements of ideals and guarantees of rights, and descriptions of essential human and national attributes.[23]

It is not that the constitutional tradition Australia inherited from Britain was ‘opposed to rights’ but, as Professor Jeffrey Goldsworthy observed, it was ‘opposed to judges having power to protect them from interference by legislation’.[24]

In Australian Capital Television v Commonwealth, Dawson J suggested that those who drafted the Constitution

preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers. Their model in this respect was, not the United States Constitution, but the British Parliament, the supremacy of which was by then settled constitutional doctrine.[25]

However while Parliament was supreme, laws it passed were not immune from judicial consideration, through the principle of statutory construction known as the ‘principle of legality’. Lord Robin Cooke described this as the ‘classic theory of English “public law”’, that Parliament ‘is sovereign, supreme, omnicompetent’.[26] But, as he quoted, ‘[e]ven under the British system of undiluted sovereignty, the last word on any question of law rests with the courts’.[27] And this takes us to the ‘principle of legality’.

The principle of legality

The Hon Robert French AC, Chief Justice of the High Court, has said that

many of the things we think of as basic rights and freedoms come from the common law and how the common law is used to interpret Acts of Parliament and regulations made under them so as to minimise intrusion into those rights and freedoms.[28]

By reading down laws to minimise possible encroachments on rights and freedoms, the common law—through statutory interpretation—plays a role in protecting them. This has become known as the principle of legality; it provides some protection to certain traditional rights and freedoms, including almost all of those listed in the Terms of Reference.[29] Indeed, as the Hon James Spigelman AC QC has said, the ‘protection which the common law affords to the preservation of fundamental rights is, to a very substantial degree, secreted within the law of statutory interpretation’.[30]

The principle of legality may be found at least as far back as Sir William Blackstone and Jeremy Bentham.[31] A recent statement of the principle appears in Re Bolton; Ex parte Beane, that ‘[u]nless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation’.[32]

The principle of legality does not, however, ‘constrain legislative power’.[33] Subject to the Constitution, Parliament has the power to modify or extinguish common law rights. As Chief Justice Robert French said, it does not ‘authorise the courts to rewrite statutes’.[34] The principle of legality will therefore have a very limited application where encroaching on a right is the clear object of a statute.[35] This is particularly relevant in the context of counter-terror laws, the very point of which, in many respects, is to encroach upon rights for a specific security objective directed against the gross violation of fundamental rights to life and safety through terrorist acts. National security is recognised as a legitimate objective of limitations on rights, both at common law and in international human rights law.[36]

The primary rationale for this principle of statutory construction was provided by Lord Hoffmann:

[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.[37]

The ‘political cost’ of the decision was also something referred to by French CJ: the interpretation of legislation takes place ‘against the backdrop of the supremacy of Parliament’, which can qualify or extinguish rights and freedoms by ‘clear words’—but words ‘for which it can be held politically accountable’.[38] Political accountability means that you can get voted out.

The approach in the Freedoms Report

We adopted a forward-looking law reform response that met the essential aspects of the Terms of the Reference across their broad range, while achieving a coverage of the rights to a similar extent and depth.

What the Report does is to consider each right, freedom or privilege in a structured way to

• analyse the source and rationale of each right;
• discuss how the right is protected from statutory encroachment by the Constitution, the principle of legality, and international law; and
• consider how limits on rights might be justified.

What about Justification?

The idea of appropriate justification for an encroachment on a right may be considered on two broad levels. One concerns the processes that lead to the making of the law—the procedural justification through scrutiny processes; the other, the testing of the law according to a particular standard—such as proportionality—which can be called substantive justification. We looked at both.

Procedural justification

The first one is procedural justification. This is particularly important in the context of the role that government lawyers play. It feeds into that idea that if Parliament ‘squarely confronts’ the issue of encroachment of a right or freedom and the intention is clear and unambiguous, then the statute will be interpreted to have its desired effect. The High Court suggested, in Coco v The Queen, that this serves to enhance the parliamentary process of rights scrutiny by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.[39]

Rigorous processes for scrutinising laws are crucial where it is Parliament, not the courts, that is the primary guardian of rights and freedoms and has the ultimate responsibility to balance rights with the public interest.

The Freedoms inquiry provided an opportunity to bring these scrutiny processes to the fore and interrogate their role in protecting rights and freedoms as part of the processes of justification engaged in to secure the passage of laws through parliament.[40]

In Australia, for example, several parliamentary committees, now consider whether proposed laws are compatible with rights. The Senate Standing Committee on Regulations and Ordinances, established in 1932, considers whether disallowable instruments ‘unduly trespass on rights and liberties’.[41] The Senate Standing Committee for the Scrutiny of Bills, established in 1981, also considers bills from this perspective.[42] The newest of the scrutiny committees, the Parliamentary Joint Committee on Human Rights, established in 2011, has a more specific brief, focused on compatibility with international human rights instruments.[43] Then, at the same time, the Parliamentary Joint Committee on Intelligence and Security, established in 2001, while not expressly required to consider the impact on rights as part of its review of Bills, in practice the Committee considers whether a Bill provides adequate safeguards and accountability mechanisms,[44] which are matters that are relevant to whether encroachments on rights are justified.[45]

Scrutiny of laws for compatibility with rights may be seen as part of the ‘democratic culture of justification’—that is, a culture in which ‘every exercise of public power is expected to be justified by reference to reasons which are publicly available to be independently scrutinised for compatibility with society’s fundamental commitments’.[46] I describe this as a process of ‘rights-mindedness’, which this scrutiny process demonstrates as permeating the body politic, as it were.

Such scrutiny can provide a check on legislative interferences with rights. There is also an important democratic value in good, transparent processes and debate about all laws, but particularly those laws that limit long-held and fundamental individual rights and freedoms.

The procedural justificatory processes extend both before and after Parliament. Policy development and legislative drafting in Australia do not take place in a rights vacuum. For example, in developing policies, government departments are encouraged to think about the effect a proposed law will have on fundamental rights. Bills and disallowable legislative instruments presented to Parliament must have a ‘statement of compatibility’ that assesses the legislation’s compatibility with the rights and freedoms in seven international human rights instruments (which include most of the traditional rights and freedoms in the ALRC’s Terms of Reference).

The Attorney-General’s Department plays an important role in providing advice about human rights law and often assists agencies and departments to prepare statements of compatibility and explanatory memoranda for any bills.[47] Here the involvement of Government lawyers is crucial—from within the AG’s Department and in other departments and agencies. Guidance on developing rights-compatible legislation is provided in the Legislation Handbook, published by the Department of Prime Minister and Cabinet;[48] the Legislative Instruments Handbook and drafting directions provided by the Office of Parliamentary Counsel (OPC);[49] and other guidance documents.[50] Some of this material is being updated; some of it should be.

The Attorney-General’s Department has published guidance sheets on a range of issues including: fair trial and fair hearing rights, the presumption of innocence, retrospective criminal laws, and freedom of movement.[51] The Attorney-General’s Department also provides guidance on ‘permissible limitations’ on rights included in the ICCPR. This is based on the so-called ‘Siracusa Principles’,[52] which broadly invite an analysis of whether the limitation is prescribed by law, in pursuit of a legitimate objective, rationally connected to its stated objective, and proportionate to the achievement of the objective. The guidance sets out useful questions to ask in conducting this analysis.

The Attorney-General’s Department also provides guidance and performs a scrutiny role in specific subject areas. For example, the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides guidance on a variety of issues relating to criminal offences, including when it is appropriate to: impose strict or absolute liability; reverse the burden of proof; or abrogate the privilege against self-incrimination.[53]

It also guides policy makers to relevant areas within the Attorney-General’s Department for other issues, such as when it may be appropriate to abrogate legal professional privilege.[54] Additionally, the Security and Intelligence Law Branch of the Attorney-General’s Department scrutinises all draft Bills and legislative instruments containing secrecy provisions. It provides an advisory assessment as to whether the provision is appropriately tailored and adequately justified and may also suggest alternative drafting.

Some of the guidance material is being updated; other material needs it, particularly in light of the role of the JCHR.

The OPC’s role is to assist policy makers to translate their policy goals into a Bill. It seeks ‘to assist instructors to develop and refine the policy so that the legislation is effective, clear and introduced within required timeframes’.[55] The OPC provides advice to departments about how to avoid or minimise legislative encroachments on rights by, for instance, setting out whether less encroaching options are available, and the relative merits of such options. The OPC follows a similar approach where questions of constitutional validity arise.

For matters affecting rights, the OPC draws attention to potential encroachments, directs the policymaker to relevant advisers (for example, the relevant sections of the Attorney-General’s Department), and where appropriate, advises on alternative approaches. If the policymaker decides to continue with the rights encroaching approach, the OPC follows such instructions.[56]

And in terms of the ‘post’ review processes, law reform bodies such as the ALRC also routinely consider rights and freedoms in their work. Under the Australian Law Reform Commission Act (Cth), the ALRC has a duty to ensure that the laws, proposals and recommendations it reviews, considers or makes:

(a)          do not trespass unduly on personal rights and liberties or make the rights and liberties of citizens unduly dependent on administrative, rather than judicial, decisions; and

(b)          are, as far as practicable, consistent with Australia’s international obligations that are relevant to the matter.[57]

Both obligations reflect the lenses of the Parliamentary scrutiny committees.

The Independent National Security Legislation Monitor (INSLM) also plays a key role in the vigilance concerning rights. The INSLM must review, on his or her own initiative, or arising from a reference from the Prime Minister or the Parliamentary Joint 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.[58] As part of its review, the INSLM must consider whether these laws contain appropriate safeguards to protect the rights of the individual, and are proportionate and necessary.[59]

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.

National security issues pose particular challenges for Parliament and it was not surprising that many submissions to the ALRC raised recent counter-terror laws.[60] That such laws encroach on rights and freedoms is in many ways the precise object of such laws in aid of the protection of the public and national security. However, the passage of such rights-encroaching laws should be attended with vigilance, and with accompanying mechanisms for scrutiny and monitoring.[61]

One of the things that our Report was able to bring out was that the processes of scrutiny of legislation in Australia are strong, but there is also room for improvement. The ALRC identified a number of possibilities, about the level of overlap in the work of the three main scrutiny committees, the time constraints, the range of rights covered by each and the differences in the scrutiny applied.[62] But here there is something that Government lawyers should keep in mind—you can play a role; you can contribute to the rights-mindedness that is at play here—from the first ‘thought bubble’ about laws, until the moment the law passes  through parliament and when it comes back to your department to consider and manage. Rights-mindedness should be your Pole star in your intellectual makeup.

Substantive Justification

Laws that interfere with traditional rights and freedoms may be necessary for many reasons. The mere fact of interference will rarely be sufficient ground for criticism. Important rights often clash with each other, so that some must necessarily give way, at least partly, to others. Freedom of movement, for example, does not give a person unlimited access to another person’s private property, and convicted murderers must generally lose their liberty, in part to protect the lives and liberties of others. Individual rights and freedoms will also sometimes clash with a broader public interest—such as public health or safety, or national security.

It is widely recognised therefore that there are reasonable limits, even to fundamental rights. Only a handful of rights—such as the right not to be tortured, the right to life and the right not to be held in slavery—are considered to be ‘absolute’.[63] Limits on traditional rights are also recognised by the common law. There are long-recognised limitations on freedom of speech, for example, with respect to obscenity and sedition, defamation, blasphemy, incitement, and passing off. Such laws are generally regarded as part of the scope of common law rights, rather than as limits or encroachments on those rights.

Bills of rights in other jurisdictions and international human rights covenants and related guidelines also feature limitations provisions. For example, limits on rights in the ICCPR are recognised in the text of the ICCPR and are elaborated upon in the Siracusa Principles.

A common way of determining whether a law that limits rights is justified is by asking whether the law is proportionate.[64] This concept is commonly used by courts to test the validity of laws that limit rights protected by constitutions and statutory bills of rights.[65] But proportionality tests have a wider application than in courts, providing a valuable tool for law makers and others to test the justification of laws that limit other important—even if not strictly constitutional—rights and principles.

A structured proportionality analysis involves the consideration of whether a given law that limits important rights has a legitimate objective and is suitable and necessary to meet that objective, and whether—on balance—the public interest pursued by the law outweighs the harm done to the individual right.[66]

Proportionality has been called the ‘most important doctrinal tool in constitutional rights law around the world for decades’[67] and ‘the orienting idea in contemporary human rights law and scholarship’.[68] It has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, and South Africa, as well as the jurisprudence of treaty-based legal systems such as the European Court of Human Rights, giving rise to claims of a global model, a received approach, or simply the best-practice standard of rights adjudication.[69]

Proportionality may now also be said to have been received to some extent into the constitutional doctrine of courts in Australia—as, for example, in the context of the constitutional implied right to political communication.[70] However, in Roach v Electoral Commissioner, Gleeson CJ expressed reservations about an ‘uncritical translation’ of proportionality into Australia from jurisdictions with human rights instruments and wider powers of judicial review.[71] In Momcilovic, Heydon J suggested that the proportionality test in the Victorian Charter created ‘difficult tasks’ that should be for legislatures, not judges.[72]

Some of these concerns may not arise when the proportionality analysis is being applied by law makers, parliamentary committees and others to test the merits of laws, rather than by courts. The application of a proportionality analysis in a non-court context is seen, for example, in the scrutiny of bills by Australian parliamentary committees. The Parliamentary Joint Committee on Human Rights, for example, applies a proportionality test. The Committee’s Guide to Human Rights states:

A key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. Even if the objective is of sufficient importance and the measures in question are rationally connected to the objective, the limitation may still not be justified because of the severity of its impact on individuals or groups.[73]

In a guidance sheet about permissible limits on rights, the Attorney-General’s Department includes a list of ‘useful questions to ask when assessing whether a measure limiting a right is reasonable, necessary and proportionate’:

Will the limitation in fact lead to a reduction of that problem? Does a less restrictive alternative exist, and has it been tried? Is it a blanket limitation or is there sufficient flexibility to treat different cases differently? Has sufficient regard been paid to the rights and interests of those affected? Do safeguards exist against error or abuse? Does the limitation destroy the very essence of the right in issue?[74]

While the ALRC Report did not propose that one particular method must always be used to test the justification for laws that limit traditional rights and freedoms, we concluded that proportionality tests offered a valuable way of structuring critical analysis, particularly as part of that rights-mindedness that should become the normal way of thinking. They call for a considerable degree of rigour, and are clearly more thorough than unsupported statements that ‘a law is justified because it is in the public interest’. Proportionality is also used widely in many other countries and jurisdictions. Importantly, the use of proportionality tests suggests that important rights and freedoms should only be interfered with reluctantly—when truly necessary. Asking the questions about limitations on rights should, moreover, become part of the standard vocabulary of Government lawyers.

Outcomes

The ALRC concluded that we would discharge the first part of our brief by undertaking an extensive survey of current Commonwealth laws that may limit each right and freedom, without making a particular judgment as to whether such encroachments were justified. [Comment about approach—compared to other inquiries, like the Secrecy inquiry]

With respect to the second, having discussed the justifications for many of these laws, we identified some that may be unjustified and therefore warrant further review.

The highlighted laws have been selected following consideration of a number of factors, including whether the law has been criticised for limiting rights in submissions, parliamentary committee reports or other commentary. The fact that a law limits multiple rights has also sometimes suggested the need for further review. Where a law has been identified as being amenable to further review, the conclusion may be that the appropriate action is:

• a review of specific statutes or provisions;
• a review in a coordinated fashion across Commonwealth, state and territory laws;
• consideration as part of existing regular review and monitoring processes; and/or
• a new periodic review.

The fact that a law was identified as meriting further review did not imply that we concluded that the law was unjustified. Further evidence and analysis would be necessary to support such specific conclusions and any reforms in response.

Issues on the Horizon

I have chosen two examples illustrate some conclusions reached in two areas, freedom of speech[75] and property rights.[76]

Freedom of speech

Freedom of speech should be in the headlines every day. Sometimes it becomes politicised around certain issues, but it is part of our deeply embedded respect for rights in the common law. It has been described as ‘the freedom par excellence; for without it, no other freedom could survive’;[77] and it is closely linked to other fundamental freedoms, such as freedom of religion, thought, and conscience. And it has been the subject of much recent attention.

In Australia, legislation prohibits, or renders unlawful, speech or expression in many different contexts—including in relation to various terrorism offences and terrorism-related secrecy offences, other secrecy laws and, of course, the Racial Discrimination Act 1975 (Cth). At the same time, many limitations on speech have long been recognised by the common law itself, such as in relation to incitement to crime, obscenity and sedition. But one provision that the ALRC identified as amenable to further review was s 18C of the Racial Discrimination Act.

While recognising the need for racial vilification laws, pursuant to the International Convention on the Elimination of all Forms of Racial Discrimination,[78] the ALRC concluded that s 18C may be too broad, because it can capture conduct that ‘offends’ people on the basis of their race. ‘Offence’, in international law terms, may be too low a threshold for vilification.

It is important to be clear, however, that the ALRC did not seek to establish whether s 18C of the Racial Discrimination Act has, in practice, caused any particular unjustifiable interference with freedom of speech. Rather, our conclusion was that this part of the Racial Discrimination Act may unjustifiably interfere with freedom of speech by extending to speech that is reasonably likely to ‘offend’ people because of their race.

Section 18C is aimed at dealing with racial hatred. It makes it unlawful to do something that is ‘reasonably likely’ to ‘offend, insult, humiliate or intimidate’ people because of their ‘race, colour or national or ethnic origin’. Section 18D provides exemptions for anything said or done reasonably and in good faith for various purposes, including artistic work and reporting on events or matters of public interest.

The main arguments in favour of s 18C relate to the need to prohibit racial vilification—public acts that encourage or incite others to hate people because of their race, nationality, country of origin, colour or ethnic origin. But the concept of vilification carries with it a sense of extreme abuse or hatred of its object, provoking hostile and even violent responses. This requires something going beyond simply giving offence. Arguably, the words of s 18C are not limited to racial vilification.

Section 18C is broader than is required under art 20 of the International Covenant on Civil and Political Rights; and it is broader than equivalent New Zealand and UK provisions which do not cover mere offensiveness, and require that the person provoke hostility or hatred against a group of persons.[79] [Reference to repeal of a Canadian provision]

In Australia, there are also questions about constitutional validity, which have not yet been tested before the High Court, although they may, in due course, very soon.[80] Section 18C may be vulnerable to challenge on two fronts: that the provision extends beyond Australia’s international obligations supported by the external affairs power; and the implied freedom of political communication. In this context, the High Court has observed that ‘insult and invective’ are a legitimate part of political discussion and debate.[81] The inclusion of the words ‘offend’ and ‘insult’ in the provision raises a possibility that the High Court, in an appropriate case, might read down the scope of s 18C, or find it invalid.[82]

However, the ALRC considered that it would be a mistake to review s 18C in isolation. While the provision may go too far in some respects, there are also serious questions about whether current laws provide adequate protection against more serious hate speech.

All Australian states have racial discrimination legislation in many ways similar to the Racial Discrimination Act, but the approaches to vilification and other conduct based on racial hatred are not uniform.[83] A review of s 18C would also provide the opportunity to consider harmonising Commonwealth, state and territory laws in this area.

Section 18C is not the only Commonwealth law that encroaches on free speech. While it is widely recognised that freedom of speech is not absolute, the ALRC report identifies other laws that may unjustifiably limit free speech. In addition to s 18C, the report highlights: counter-terrorism laws, in particular, the offence of advocating terrorism; and various terrorism-related secrecy offences, in particular those relating to ‘special intelligence operations’.

Property rights

Another area considered in the Freedoms Report concerned interference with property rights. To grapple with what amounted to an ‘interference’ with property rights, the ALRC analysed the idea of ‘property rights’, what protections there are from statutory encroachments and justifications for interferences with those rights. Interferences with personal property rights and real property rights were separately considered. The main focus of concern of stakeholders was interferences with land and water; and many issues here traversed areas of Commonwealth and state responsibilities.

The common law has long regarded a person’s property rights as fundamental.[84] ‘The Englishman’s home is his castle’—an adage that was picked up in the movie, ‘The Castle’, concerning a man’s defence of his home against the proposed expansion of the adjoining airport. However, property rights could be encroached upon by legislative action, ‘by the law of the land’,[85] so long as any deprivation was not arbitrary and reasonable compensation was given.[86] Property rights could be affected by law, controlled or diminished by laws, but an ‘alienation’ or ‘divesting’ had to be exercised ‘with caution’, and in return for a ‘reasonable price’.[87] In the Australian context, such questions are framed by s 51(xxxi) of the Constitution – the ‘just terms’ provision.[88]

Most attention about interferences with property rights in the inquiry concerned environmental laws and their ability to reduce the commercial uses to which property can be applied.[89] Justifications for interference with property rights from an environmental perspective include that environmental laws are necessary to implement international agreements, are in the public interest and that safeguards exist.

State and territory governments are primarily responsible for the management of native vegetation and biodiversity, and states have legislative power in relation to internal waters. State environmental laws were not the concern of the Freedoms inquiry, but from the landholder’s perspective the complexity of the ‘interference’ with property rights can only be understood in the light of both state and Commonwealth laws. Concerns were expressed, for example, about potential Commonwealth involvement in state ‘interferences’ with property rights because the Commonwealth may financially assist states with respect to natural resources management.[90] Further, the Commonwealth has significant policy responsibility for water management in the Murray-Darling Basin.[91] [Reference to the conviction of Graham Turnbull for killing an environmental officer in New South Wales].

In the Freedoms Inquiry the ALRC heard complaints about both the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the Water Act 2007 (Cth).[92]

The EPBC Act is the central piece of Commonwealth environmental legislation.[93] It interferes with the right to use land—but only to a limited extent. It does not interfere with the existing use of the land, but requires approval to change the existing use of the land where the proposed action has, or is likely to have, a ‘significant’ impact on a matter of national environmental significance. In most cases development proposals are approved, subject to conditions. Very few proposals have been refused. An independent review of the EPBC Act was completed in late 2009 and the next scheduled review is to be completed by 2019.

In the European context, a proportionality test has been used to determine whether interferences with real property rights caused by environmental laws are justified.[94] The ALRC suggested that the next scheduled review of the EPBC Act could apply such an approach and reassess whether the interferences are proportionate as well as exploring a range of compensatory mechanisms. This review may also afford an opportunity for consideration of the interrelationship of Commonwealth and state law.[95] This is clearly a matter on the horizon for Government lawyers.

The way that water is treated by law proved an interesting illustration of property rights, and tensions arising between private and public interests. Water is an example of something that is regarded as common (publici juris),[96] or a ‘public asset’,[97] like air or light. It is not itself the subject of ownership,[98] but certain rights may exist in relation to it. The nature of those rights has changed over time: from common law to statutory rights.

The common law of water provided quite limited rights to individual landholders although people have an enlarged view in terms of what they think in terms of their ‘castle’ when it comes to rights to water. While the water itself was not capable of ownership, a landowner had certain rights in relation to it, depending on whether the water was under the land (‘percolating’ water), or in a watercourse that flowed through or adjoined the property. In the case of percolating water, the landowner was permitted to draw any or all of it without regard to the claims of neighbouring owners.[99] In the case of water flowing through land, the ‘riparian’ owner had certain valuable, but limited, rights: to fish; to the flow of water, subject to ordinary and reasonable use by upper riparian owners and to a corresponding obligation to lower riparian owners;[100] and to take and use (‘abstract’) all water necessary for ordinary purposes and other reasonable uses.

The common law principles applied to Australia at colonisation, but from an early stage it was clear that ‘the driest inhabited Continent’[101] needed a different approach.[102] Water management regimes based on the assertion of state control and the grant of a range of licences were introduced in place of common law rights.[103] Limits were also set on the amount of water that may lawfully be taken.[104] The common law ‘private’ rights were altered pursuant to a wider sense of ‘public’ interest, particularly as it reflected environmental concerns.

The environmental concerns were expressed in terms of restricting private use of water to agreed limits and managing water systems.[105] The management of the latter required both state and Commonwealth involvement, with an increasing shift towards the Commonwealth, particularly in relation to waterways that cross state boundaries, as in the Murray-Darling Basin.[106] This led to the passage of the Water Act 2007 (Cth), designed ‘to enable the Commonwealth, in conjunction with the Basin States, to manage the Basin water resources in the national interest’.[107]

There were two messages that we concluded in our work. The first was that hardly anyone understands the way the Water Act works, which is a role for Government lawyers in terms of clarity of messaging. The other was that where legislation of that kind covers such a wide area and with intersections with state and territory laws, periodic reviews, looking at how the legislation is fulfilling its objectives and relates to state and territory laws, are a good idea.

Where there are tensions about the application of such key legislation and its impact on property rights, as expressed to the ALRC during the Inquiry,[108] an independent review can interrogate such matters. The Water Act s 253 provided for such a review, which was completed in late 2014.[109] However the ALRC noted that the Water Act did not provide for periodic review, as is the case with the EPBC Act, and that it may be appropriate for the Water Act also to be reviewed periodically.[110] The impact on the individual landholder as well as the environmental outcomes and compensation mechanisms can then be assessed through the lens of proportionality. In the meantime, the ALRC considered that public understanding of the Water Act could be promoted by clear educational material.

Conclusion

One particular achievement of the Freedoms report was the ‘national focus on the rapidly increasing numbers of statutes which undermine our rights and freedoms’.[111] Identifying and critically examining laws that limit rights plays a crucial part in protecting them, and may inform decisions about whether, and if so how, such laws might be amended or repealed. The value of that is that it may be seen to complement work that considers other ways to protect rights—such as by creating new causes of action or new offences, or even by enacting a charter or bill of rights. Whether the introduction of a bill of rights in Australia is desirable is widely debated and hotly contested,^[112] and draws in part upon historical arguments about whether the courts or parliaments are better guardians of individual rights.^[113] I note that the matter is currently under consideration in Queensland with strong arguments expressed in opposition by those like the New South Wales Solicitor-General, Michael Sexton SC.^[114] That question was not the subject of the Inquiry.

The Freedoms Report contributes to a broader discussion and debate about protecting rights in democratic societies and reminds us of the power of the common law. Law and law reform have an important role to play in this ongoing discussion. The Attorney recognised that role this in launching the report when he said:

I genuinely believe this to be an historic document. Not merely a body of topic specific law reform which is the usual work of the ALRC, but a benchmark document which will be serviceable to governments and parliaments in all the years to come.[115]

I trust that my presentation today has ‘got into your headspace’, so to speak, in thinking about rights—from the perspective of seeing the strength of the common law in identifying and protecting rights; reinforcing the rights-mindedness that should be the mental state of all Government lawyers (indeed, all lawyers); and seeing the role that you can play whenever you are involved in formulating policy for legal change, advising on proposed bills and on laws in effect. Lawyers are the lynchpin in protecting rights. As Government lawyers you have the considerable responsibility of ensuring that rights of Australians are protected and respected in laws and that the processes by which laws are made are rigorous and continue in a framework of rights-mindedness.

Wednesday, 2 March 2016, Parliament House, Canberra 

Professor Rosalind Croucher AM

Introduction and welcome

Good morning and welcome to this important event. I am Professor Rosalind Croucher, President of the Australian Law Reform Commission, and it is my very great privilege to commence the proceedings.

I warmly welcome:

• Attorney-General, Senator the Hon George Brandis QC
• Shadow Attorney-General, the Hon Mark Dreyfus QC MP
• Emeritus Professor Suri Ratnapala, part-time Commissioner for the inquiry
• Chris Moraitis PSM, Secretary, Attorney-General’s Department
• Peter Quiggin PSM, First Parliamentary Counsel, OPC
• Dr Helen Watchirs OAM, ACT Human Rights and Discrimination Commissioner
• Stuart Clark AM, President of the Law Council of Australia
• members of the Advisory Committee for the inquiry
• staff of the Attorney-General’s Department
• ALRC colleagues – the Freedoms team, and
• all of you here who assisted us so willingly and well in the inquiry

Welcome all!

Of the many who could not attend and send their apologies I mention the Hon the Prime Minister, Malcolm Turnbull MP who sends his best wishes and trusts the event will be a success.

In the presence of such eminent guests and especially the first law officer of the Commonwealth, may I begin by acknowledging the Ngunnawal and Ngambri peoples, who are the traditional custodians of the land on which we meet—and I pay my respects to their elders, both past and present and acknowledge Indigenous guests attending today.

And now to the occasion of today—to launch the Australian Law Reform Commission’s 129th report, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws.

I will say a few words of introduction, followed by the Attorney who will launch the report. I will then invite Emeritus Professor Suri Ratnapala to say a few words prior to my giving a summary of the key recommendations in the report.

I’m very excited to see this project come to fruition. The Freedoms inquiry was an extraordinarily fitting way to mark the celebrations of the ALRC’s 40th anniversary last year. The fact that it was also the 800th anniversary year of the sealing of the Magna Carta made it a singularly appropriate, and even more significant, project to undertake.

Forty years of providing reports to Attorneys-General on enormously diverse subjects within Commonwealth, indeed Australian, laws sat behind us as we embarked on this challenging inquiry. That we were given this extraordinarily challenging brief at a time of intense concern about encroachments on rights and freedoms, Mr Attorney, is a testimony to your appreciation of the contribution of institutional law reform commissions to enduring law reform.

I was delighted that you spoke so warmly in honour of our 40th anniversary celebrations in October and delighted again that you honour us in launching the report today.

Mr Attorney …..

Attorney-General, Senator the Hon George Brandis QC

I’d like to begin by acknowledging the traditional custodians of the land where we meet, and I acknowledge the Honourable Mark Dreyfus, the Shadow Attorney-General, Stuart Clark, the President of the Law Council of Australia, staff of the Commission and Associate Commissioner Suri Ratnapala, meritous Professor Suri Ratnapala, who has been one of the most important contributors to this report.

This is the culmination of a very significant body of work by the Australian Law Reform Commission and, although this is the 129th report of the ALRC, I make bold to predict that it will come to be seen in years to come as one of the most important reports the Australian Law Reform Commission has ever authored.

As you know, it has long been my view that the human rights debate in Australia, which is an extremely important debate, has in recent years been unbalanced by insufficient attention to the liberal rights, in particular by insufficient attention to freedom, the most fundamental of all of the human rights.

When my party was elected to government in 2013, I decided to take a number of steps to put freedom at the very forefront of the human rights agenda. One thing I did was to appoint a freedom commissioner to the Australian Human Rights Commission, Tim Wilson. Another thing I did about the same time was to ask the Australian Law Reform Commission to embark upon this enquiry: Traditional Rights and Freedoms – Encroachments by Commonwealth Laws. The need for this enquiry was manifest from the very fact that although governments of both persuasions and parliaments of both compositions have over many years passed a large body of statute law and delegated legislation which impinged upon traditional rights and freedoms, so extensive, indeed so habitual, had that practice become that nobody quite knew just how much traditional rights and freedoms were interfered with across the entire gamut of Commonwealth law. So, the primary purpose, not the only purpose but the primary purpose, of this enquiry was effectively an audit function to identify where traditional rights and freedoms had been encroached upon.

I remember saying to Professor Croucher at our first discussion I want a doomsday book, not a Magna Carta but as Professor Croucher has pointed out it was seemly and appropriate that most of the work of the enquiry happened to coincide with the 800th anniversary of Magna Carta.

The scope of the work can be seen from the reference. I asked the ALRC to identify where Commonwealth statutes and Commonwealth delegated legislation interfered with freedom of speech, freedom of religion, freedom of association, freedom of movement, with vested property rights, adopted retrospective alterations of the rights of citizens, interfered with traditional rules of criminal procedure and evidence in the criminal justice system, reverse or shift the burden of proof, excluded the privilege against self-incrimination, abrogated legal professional privilege and various other respects in which Commonwealth statutes either remove, or reverse, or create presumptions against traditional rights, freedoms and privileges. So it was a vast body of work that the ALRC has done and it will be a benchmark for all future generations and I hope from time to time, perhaps on a decennial basis, future governments will have the wisdom to commission future law reform commissions to bring this body of work up to date because we need to know where traditional rights and freedoms and privileges and liberties are departed from, why that is, and before you can understand why it is, you actually need to understand in what particular enactments those departures can be found.

The habit of governments, and of parliaments regarding traditional rights and freedoms is something routinely to be departed from, is a bad habit, is a bad practice, and as a Senator, as an opposition spokesman in years gone by, and now as the First Law Officer, it has always been my approach to demand when an act of Parliament, or a bill before the Parliament does abrogate, or depart from a traditional right, or freedom, or privilege that that departure should be justified and well justified.

Now I’m not saying for a moment that there are not occasions where such departures are appropriate. We have had a very lively debate in this Parliament for example over the scope and gamut of national security legislation. In certain respects the Parliament has passed laws in the national security arena which do contain provisions which depart from traditional rights and freedoms and in every one of those cases we have demanded that that departure be justified on good policy grounds, that the departure be as limited as necessary for the efficacy of the legislation and that it be subject to appropriate accountability, oversight and review mechanisms including, where appropriate, sunset provisions.

The dialogue that has occurred between the Government and the Parliament, the Parliament in particular speaking through the Joint Parliamentary Committee on Intelligence and Security, has been, in my view, a fine example of how the system should work. The Joint Parliamentary Committee on Intelligence and Security, by custom, operates on a bipartisan basis. So the Government introduced legislation, submitted it for review by that committee, that committee, operating in a bipartisan manner, has come back to the Government with recommendations which have in almost all cases been accepted and have improved the initial bill. That is the way Parliament should work, but in particular, that is the method by which Parliament should treat proposed legislation which does impinge on traditional rights, freedoms and privileges by demanding that those departures be justified, by confining them as narrowly as the case necessitates, and by subjecting them to searching review.

As a Liberal, it is my wish to see that those departures are as few as possible and as limited in their definition as they can be made, but no sensible contributor to public discussion would say that on a case-by-case basis it may not be necessary for such departures to occur. Where it occurs though, this is my point, it should be regarded as exceptional, it should be regarded as exceptional, and it should be regarded as requiring strong justification. It should never be a routine legislative reflex. My concern had been that this practice of departing from traditional rights and freedoms had become almost a routine legislative reflex. It should never be that. My hope, and I am confident, this report by identifying those departures will bare upon the conscience of all governments, of both political persuasions in the future, never to allow it to be a routine legislative reflex or response.

I’m conscious that this report contains criticism of legislation passed by this Parliament, under this Government and by previous parliaments under Labor Governments. That is a good thing. That is why we have bodies like the Australian Law Reform Commission, to participate in the dialogue, to identify and hold up to intellectually tight critical scrutiny, the legislative work of the Parliaments and the enactments introduced by governments. We do not shy away from that. While not always agreeing with the conclusions, we welcome that as being the essence of a healthy, open, liberal, parliamentary democracy. So let me conclude on that note.

I am so proud of this report Professor Croucher, and I am so proud of the Australian Law Reform Commission for this fine body of work, thank you so much. Professor Ratnapala, I know of your instrumental role in the preparation of this report, thank you so much. To all of the authors, researchers and staff of the ALRC who worked on this report, thank you as well.

I genuinely believe this to be an historic document. Not merely a body of topic specific law reform which is the usual work of the ALRC, but a benchmark document which will be serviceable to governments and parliaments in all the years to come. And with those words let me launch the Freedoms Report of the Australian Law Reform Commission.

Professor Rosalind Croucher AM

Emeritus Professor Suri Ratnapala joined the ALRC as a part-time Commissioner to assist on the Freedoms Inquiry. He held the position of Professor of Public Law at the University of Queensland until his retirement at the end of 2014. Professor Ratnapala is the author of many books and his main academic interests are in constitutional law and theory, legal philosophy, and constitutional political economy—all of which expertise he brought in providing great insights to the Freedoms team. Apart from a distinguished academic career Suri is also a man of great grace, fine wit and a keen follower of rugby and cricket. None of this went to waste—although not all of it is evident in the report.

Professor Ratnapala …..

Emeritus Professor Suri Ratnapala

Honourable the Attorney-General, Honourable Shadow Attorney-General, Professor Ros Croucher, Distinguished Guests, My Colleagues on the Freedoms Inquiry team, and the staff of the ALRC and the Attorney-General’s Department.

I thank Professor Croucher for inviting me to attend and to speak a few words on this occasion. I accepted out of a sense of duty to express my thanks to many persons.

The Australian public should be thankful to the Hon Attorney-General for setting up this Inquiry. It is like no other inquiry undertaken by law reform and human rights agencies in this country at federal and state levels. It is unprecedented in scale and importance. Most law reform inquiries are focused on specific areas of the law or directed to particular problems. As important as they are to the general public, they have special relevance to particular interests. The Freedoms Inquiry is about the general health of our law measured against the timeless norms and values that have been winnowed by our history and legal tradition. Every person, whatever their walk of life, is ever dependent on these norms for their basic rights and liberties. They are taken for granted but are subject to slow erosion without society’s vigilance. The Freedoms Inquiry makes a critical contribution to the unceasing task of defending our most cherished rights and freedoms.

I am personally thankful to the Hon Attorney-General for giving me the opportunity to make a contribution to this Inquiry. I retired from the University of Queensland in July 2015 and was looking forward to watching more cricket and rugby and trying my hand at travel stories. Then I received two requests, the first by the Attorney-General of Australia to assist this Inquiry, and the second by the Prime Minister of Sri Lanka to help with the development of a new, more liberal Constitution for that country. I could not refuse these requests, not only because of my deep respect for these two gentlemen but also because of the public importance of these two undertakings. I count my association with this Inquiry as a highlight of my professional life. So, Hon Attorney-General, I thank you. 

I also wish to express my sincere thanks to Professor Croucher, President and Commissioner of the ALRC for making me part of the team and for giving me the strongest possible support in my work. I congratulate her for her leadership, both intellectual and managerial, without which it is difficult to imagine this achievement. I am also sincerely thankful to the administrative staff of the ALRC, Sabina Wynn, Tina O’Brien, Dimitra Zinonos and every other member of the staff who assisted me and made me feel welcome.

May I add my thanks also to the distinguished Judges, lawyers and academic colleagues who served on the Advisory Committee.

And of course how can I forget the team of outstanding scholars that, under Professor Croucher’s leadership, conducted the inquiry: Bruce Alston, Jared Boorer, Justine Clarke, Robyn Gilbert, Julie Mackenzie, Brigit Morris and Shreeya Smith. It was great to get to know you and inspirational and joyful to work with you. As I told you before, the forthcoming editions of my books on Australian Constitutional Law and on Jurisprudence will be richer for the learning I acquired from your work. Be assured that you will be duly acknowledged in my books.

Hon Attorney-General, Professor Croucher, it has been my honour and pleasure to be of assistance in this noble endeavour.

Professor Rosalind Croucher AM

Summary of the report

Thank you, Attorney-General and Professor Ratnapala, for your kind words. I would like to follow these with a short summary of the key ideas and recommendations that the ALRC puts forward in the report. (I should note that the report is presented with its own short summary in the form of the Summary Report, a publication which now accompanies all ALRC reports in our commitment towards improved accessibility of our work.)

The Terms of Reference set out two main tasks. The first was to identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges. The second task was to critically examine those laws to determine whether the encroachments are appropriately justified. The ALRC was asked to consider, among other areas of law, commercial and corporate regulation, environmental regulation, and workplace relations.

It was very broad terrain and, in this respect, singularly different and distinctive from other ALRC inquiries. We had to dance lightly across this wide landscape to achieve an evenness of depth of coverage of all the 19 rights and freedoms identified in the Terms of Reference. From freedom of speech, to protection of property rights and the right to a fair trial, the canvas was a wide one.

Our approach was to determine a forward-looking law reform response that met the essential aspects of the Terms of the Reference across its broad range. Hence in many chapters of the Report, laws are identified that may be unjustified and therefore warrant further review. But we have also provided an extensive analysis of each of the rights and freedoms and Commonwealth laws which affect them.

Another crucial aspect of consideration is the thorough analysis of how laws are scrutinised by government agencies, parliamentary committees and others for compatibility with rights. This is part of what has been called a ‘democratic culture of justification’ and reflects a broad rights-mindedness throughout levels of government. We describe the role of bodies, such as the Independent National Security Legislation Monitor, the Australian Human Rights Commission and, indeed, the ALRC itself, in contributing to a general vigilance about encroachments on rights.

The Report considers each right, freedom or privilege in this way:

First, an analysis of the source and rationale of the right and an overview of how the right is protected from statutory encroachment by the Constitution, the principle of legality, and international law. In undertaking this analysis, the report will provide a great contribution to thinking on the subject of rights protections.

Secondly, there is a general discussion of how limits on rights might be justified. Only a few rights are regarded as absolute (such as the right to life and the right not to be held in slavery) and there are reasonable limits to most rights. Limits on traditional rights are also recognised by the common law. For example, property rights could be encroached upon ‘by the law of the land’ so long as any deprivation was not arbitrary and only where reasonable compensation was given—as Sir William Blackstone wrote in the 18th century. And with respect to freedom of speech, there are long-recognised limitations with respect to obscenity and sedition, defamation, blasphemy, incitement, and passing off.

But how can it be determined whether a law that limits an important right is justified? Proportionality tests are now the most widely accepted tool for structuring this analysis. Proportionality is used to test limits on constitutional rights by the High Court and by constitutional courts and law makers around the world. The use of proportionality tests suggests that important rights and freedoms should only be interfered with reluctantly—when truly necessary. In the Report, the ALRC often draws upon proportionality analyses when considering whether particular laws that limit rights are justified.

Thirdly, there is an extensive survey of current Commonwealth laws that may limit each right and freedom, without making concluded judgments about whether these laws are appropriately justified.

Fourthly, we discuss the justifications for some of these laws, with some laws being identified as possibly unjustified and therefore deserving further review.

We chose the laws to single out following consideration of a number of factors, including whether the law had been criticised for limiting rights in submissions, parliamentary committee reports or other commentary. Where a law has been identified as being amenable to further review, the suggested action may include:

• a review of specific statutes or provisions;
• a review in a coordinated fashion across Commonwealth, state and territory laws;
• consideration as part of existing regular review and monitoring processes; and/or
• a new periodic review.

I should emphasise that the fact that a law has been identified as meriting further review does not imply that we have concluded that the law is unjustified. Further evidence and analysis would be necessary to support such specific conclusions.

What are some of the areas singled out? I should say upfront (because this is one area that people will specifically ask about) that we have identified section 18C of the Racial Discrimination Act as one possible target for reform. We do not say that whether section 18C has or has not, in practice, caused any particular unjustifiable interference with freedom of speech. Rather, we concluded that this part of the Racial Discrimination Act would benefit from thorough review because section 18C may unjustifiably interfere with freedom of speech by extending to speech that is reasonably likely to ‘offend’. Section 18C is broader than is required under international law to prohibit the advocacy of racial hatred, broader than similar laws in other jurisdictions, and may also be susceptible to constitutional challenge.

Many submissions to this inquiry also raised recent counter-terror laws. This was not surprising. That such laws encroach on rights and freedoms is not the issue so much—this is in many ways the point of such laws in protection of the public and national security. The issue is more about the vigilance with which the passage of such laws is attended, and the scrutiny and monitoring that accompanies the acceptance that some intrusions on rights and freedoms may be necessary—for a time. The recent report of the Independent National Security Legislation Monitor, Roger Gyles, released after we had completed our work, demonstrates how such monitoring and review processes can work effectively. Gyles reviewed s 35P of the ASIO Act, concerning the disclosure of Special Intelligence Operations. This provision had also been identified in our inquiry as meriting further review.

There are many other not so obvious examples that we considered, including the way that water rights have been transformed from interests attached to land to a separate thing altogether. The legislative scheme here is rather complex to translate and, in due course, deserves a further independent review.

While some stakeholders said the ALRC should have recommended specific changes to laws, others recognised that this was not possible and supported the approach taken. It was acknowledged that the Inquiry was ‘extremely large and complex’ and covered ‘very broad terrain’. Given the breadth of the Inquiry, the ALRC considered that more detailed recommendations for reform—other than the reviews suggested—would require dedicated projects and further evidence, consultation and analysis. In a number of specific areas the ALRC has already undertaken inquiries, and the recommendations in the final reports of those inquiries provide a foundation upon which Government may act. Our approach was also fully supported by our eminent Advisory Committee.

What we have been able to achieve, in particular, is ‘a national focus on the rapidly increasing numbers of statutes which undermine our rights and freedoms’. The Australian Institute of Company Directors, for example, expressed appreciation of ‘the extensive work the ALRC has undertaken’ that has ‘shone a light on traditional rights and freedoms that have been eroded by legislation, commonly without recognition, fanfare or compelling justification’. The Australian Human Rights Commission joined in commending our work for the ‘comprehensive review of the source of traditional rights, freedoms and privileges’.

Identifying and critically examining laws that limit rights plays a crucial part in protecting rights, and may inform decisions about whether, and if so how, such laws might be amended or repealed. This may be seen to complement work that considers other ways to protect rights—such as by creating new causes of action or new offences, or even by enacting a bill of rights. The Report contributes to broader discussion and debate about protecting rights in democratic societies and reminds us of the power and strength of the common law. Law and law reform has an important role to play in this ongoing discussion.

Thank yous

An inquiry such as this requires many thank yous.

All those we spoke to and who put in submissions. In developing a reform response we talk to a lot of people. We listen to a lot of people. Commitment to widespread consultation is a hallmark of best practice law reform—and this inquiry was no exception. A huge vote of thanks to all those we consulted, all over the country; and to those who put in submissions. We undertook two national rounds of stakeholder consultation meetings, teleconferences and roundtables. We also conducted a national series of symposia, in September and October last year, focusing on aspects of the inquiry.

The team: the legal officers of the ALRC; the production team, under the leadership of ALRC Executive Director Sabina Wynn with Tina O’Brien once again providing key support as Project Coordinator and typesetting everything under the sun (Tina is here today—Tina, thank you); Trisha Manning, designed the cover; and Marie-Claire Muir—our one-woman website ‘team’.

Our part-time Commissioners: two excellent Federal Court judges, the Hon Justice John Middleton and Justice Nye Perram; and the masterful (and stylish) Emeritus Professor Suri Ratnapala of the University of Queensland.

Our Advisory Committee and other expert readers—who give their time and expertise freely, adding immeasurable value to our small team.

And now, to morning tea. This afternoon we head to the Australasian Law Reform Conference (ALRAC) being hosted by the Victorian Law Reform Commission and then back to Sydney to embark upon our next inquiry on Elder Abuse. This inquiry gives us the opportunity to build upon our work in our disability inquiry—Equality, Capacity and Disability in Commonwealth Laws, given to us by the now Shadow Attorney-General, Mr Dreyfus—such is the importance and continuity of our work from Attorneys over the 40 years.

Thank you Mr Attorney, thank you Professor Ratnapala. Thank you all! 

Marie-Claire Muir (MC): Hello I’m Marie-Claire Muir, Communications Manager at the Australian Law Reform Commission. I’m talking with ALRC President Professor Rosalind Croucher, who led the Freedoms Inquiry. Today we’re talking about the final report for that Inquiry, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, which was tabled today in Parliament.

Hi Ros. How are you?

Rosalind Croucher (RC): Oh great. I’m very excited to see this project come to fruition.

MC:  Yes, congratulations on the Report – it’s a real achievement! When you look at the Terms of Reference and broad range of laws and rights and freedoms the ALRC was asked to look at, you can see what a huge undertaking it was. But first off the bat, because it’s not necessarily a familiar term for everybody, what are we talking about when we say “Traditional” rights and freedoms?

RC:  Yes, I think that’s the first question of great importance. The idea of traditional rights and freedoms is something that is fleshed out in the Terms of Reference and it’s done so by way of a long list of dot points of the kinds of things that are covered by that. Essentially they are key ideas of rights and freedoms that find their source in the common law. They include things like laws that might interfere with the freedom of speech, with freedom of religion, vested property rights, freedom of movement and so on. So there’s a long list of ideas that are covered and it is spelled out in the Terms of Reference, which is our starting point. So that provided a bit of help to us defining what, as you rightly said, was a very challenging and very wide project.

MC: Ok. Thanks for that explanation. So what exactly was the ALRC asked to do for this inquiry?

RC:  The Terms of Reference identified two main tasks. The first of those tasks was to identify those Commonwealth laws that encroach upon traditional rights, freedoms and privileges, with that list of the areas of law I mentioned before. The second thing we were asked to do was to critically examine those laws to see or determine whether the encroachments were appropriately justified. So those were the two key questions we had to address.

MC: So, in some ways this is quite different to typical ALRC inquiries, which tend to look at a specific piece of legislation or area of law. In this Inquiry we have the breadth of laws to be considered, and also the survey aspect. Were there particular challenges, and how did you, and the team, approach the task?

RC: Yes, very good questions. The same questions, in a way, are asked by us in every inquiry we get. That is, defining what it is the Terms of Reference want us to do, and then working out the appropriate methodology to address those questions. In many of the inquiries we’ve had to do over the years, the focus is much more specific. For instance in the Native Title Inquiry, which was the last inquiry prior to this one, we were asked to look at very specific sections of the Native Title Act, particularly around the definition of Native Title and the process in relation to claims. So that was a very focused sort of inquiry. This one looked at things through a — again we were looking at laws, because we are after all a law reform commission  but it was much more conceptual in looking at interferences with bigger ideas, like the freedom of speech. So it was very broad in its vision which was very much an aspect of the Attorney-General, Senator the Honourable George Brandis’s interest in law reform. But it was a challenge, then, in pinning that down in terms of how we would go about things. So, to find the way to go about it, we had to do the survey of laws that encroach, but we did that – and there are many, there are many in the Commonwealth statute book — but many of those encroachments are for good reason. And so it was a complex task. We discharged the survey element of the Terms of Reference – that was the first task – by identifying laws that might be seen as encroaching or interfering across the range of the Terms of Reference, but without making a specific judgment on those laws.

We left the second task, the critical examination task, as a distinct aspect of our work. That in a way was the most challenging aspect to the inquiry because, given we were looking over such a broad canvas, and in many areas, even sub-areas of the areas we were looking at we [previously] had done inquiries of 12-18 months on very much smaller, focused aspects – 17 in fact we identified throughout the work we did on the Freedoms Inquiry, as we called it. And so what we did was find an approach that would produce the best forward-looking law reform response we could, which was to identify a standard by which you could assess appropriateness. That standard we found, most typically, is that of proportionality, which is one employed regularly across international law and other legal comparisons, and also is one that comes into play in some of the scrutiny processes. There are many active scrutiny processes — and proportionality is familiar in some of those contexts.

So we identified a standard; we also looked at the processes that laws have to go through — the very rigorous scrutiny processes, through the parliamentary process — before laws are passed. And then out of that process, what we were able to identify, through the many stakeholder contributions we received and the active consultative process we did as part of our normal process over the course of the inquiry, we found areas of law that were still amenable to further scrutiny. We were not expressly making a judgment that they were not appropriately justified, but areas that were amenable to further scrutiny. We then focused those areas into, for example, where regular reviews were already anticipated, that our work could feed into the regular review. We suggested also that there are some institutional bodies that have oversight roles, for example the Independent National Security Legislation Monitor has an active watching brief on much national security legislation, much of which of course does intrude upon traditional rights and freedoms—that’s the point of it in many ways. The issue then is, what kind of scrutiny, what kind of oversight mechanisms provide the effective check and balance to that encroachment? So it’s different—sorry, this is quite a long answer, but it was quite a difficult and challenging process to define a methodology. In fact a number of our stakeholders were aghast at how we might even go about it. But we did, which was our job, and I think we discharged it very well. And the end result will, I think, be a very significant contribution to the broader discourse about how you protect rights and freedoms in a very lively and rights-minded democratic culture.

MC: Great. So, a typical ALRC final report makes quite specific recommendations on changes to the particular piece of legislation or area of law it has been asked to look at. We’ve talked about the unique nature of this Inquiry. Given that, what can people expect from this Final Report?

RC: Yes, I’ll try and reduce it down as best I can. We identified the outcome of what the work will be. It does a number of things. The first is really to provide an extraordinarily well considered contribution to that general discourse about rights and freedoms that I mentioned. It provides a thorough analysis of the source and rationale of all of the rights and freedoms that we’ve been asked to look at. We provide an analysis that perhaps hasn’t been done since the 1960s in the excellent work of Enid Campbell on Freedom in Australia. So, on the treatise side, it will be an extraordinarily valuable treatise. But of course that’s not ultimately what a law reform product needs to be. And that’s where we do provide a significant contribution to the debate about protecting rights. We analyse a justification for a range of the laws that we identify as encroaching. We discuss the proportionality test that can provide a structured process for reviewing the justification of laws that do limit rights and freedoms in various ways. We look at the law-making processes that are a very active part of our parliamentary structure now; and how those processes might be improved to ensure that laws that do limit traditional rights and freedoms are thoroughly scrutinised and in an ongoing way. But the final bit, and this is I think the really focused law reform ‘product’ aspect of our work, is the highlighting of laws that warrant further consideration or review, and there we think our report will provide a roadmap for future work to ensure that encroachments on rights, freedoms and privileges are avoided or are appropriately justified.

MC:  Well, it does sound like a very important body of work. Thanks for your time today, Ros. Congratulations again on the report. Thank you all for listening. The Report is now available to view or download from the ALRC website, and there are a few hard copies available to purchase. And for any of you who are interested in future ALRC projects and our ongoing work, I’d encourage to subscribe to the ALRC Brief. Thanks.

ALRC report, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129), was tabled and launched in Parliament today by the Attorney-General, the Hon Senator George Brandis QC and is now publicly available.

In this far-reaching inquiry, the Australian Law Reform Commission was asked to identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges recognised by the common law. In the final Report, the ALRC discusses the source and rationale of these important rights and freedoms and provides an extensive survey of current Commonwealth laws that limit them. The ALRC has identified a range of Commonwealth laws that may warrant further consideration or review, providing a road map for future work to ensure that encroachments on rights, freedoms and privileges are avoided or appropriately justified.

Additionally, the Report provides a thorough analysis of how laws are scrutinised by government agencies, parliamentary committees and others for compatibility with rights, and examines possible justifications for statutory restrictions of common law rights and freedoms. It discusses how laws that limit traditional rights and freedoms might be critically tested and justified, for example by using a proportionality test. Rights are rarely absolute, but must be balanced with other rights and with the public interest when these interests conflict.

ALRC President Professor Rosalind Croucher AM, Commissioner-in-charge of the inquiry, said:

“Important rights and freedoms should only be interfered with reluctantly—when truly necessary. This report identifies and critically examines laws that limit rights, and will inform decisions about whether such laws might be amended or repealed. The Report provides a significant contribution to a broader discussion and debate about protecting rights in democratic societies.”

During the Inquiry, the ALRC held two rounds of national stakeholder consultations, following the release of the Issues Paper and the Interim Report, and received 151 submissions from a wide range of people, organisations and agencies. The ALRC also held a national round of public symposia focusing on specific aspects of the Inquiry, and convened an Advisory Committee of experts, which met twice.  Emeritus Professor Suri Ratnapala, appointed part-time Commissioner in July 2015, also provided his considerable experience and expertise. 

The full Report and Summary Report are available free of charge on the ALRC website at www.alrc.gov.au/publications in HTML, PDF and EPUB. A limited number of hard copies are available for purchase.

Professor Rosalind Croucher AM,* President, Australian Law Reform Commission, to the Australian Academy of Law, Sydney, 27 October 2015 

AAL President, the Hon Kevin Lindgren AM, thank you for allowing me to speak about the ALRC’s current inquiry, that we call the ‘freedoms inquiry’.

I would like to begin my short talk this evening by acknowledging the traditional custodians of this land, and to pay my respects to the elders, past and present, of the Gadigal people of the Eora nation.

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.

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] It is a matter on which he has spoken on many occasions and it is one that he signalled that he would like the ALRC to look at immediately upon his coming into office.

The idea of ‘traditional rights, freedoms and privileges’ is explained in the Terms of Reference, which state that this should be understood to refer to laws that:

• interfere with freedom of speech;
• interfere with freedom of religion;
• interfere with freedom of association;
• interfere with freedom of movement;
• interfere with vested property rights;
• retrospectively change legal rights and obligations;
• create offences with retrospective application;
• alter criminal law practices based on the principle of a fair trial;
• reverse or shift the burden of proof;
• exclude the right to claim the privilege against self-incrimination;
• abrogate client legal privilege;
• apply strict or absolute liability to all physical elements of a criminal offence;
• permit an appeal from an acquittal;
• deny procedural fairness to persons affected by the exercise of public power;
• inappropriately delegate legislative power to the executive;
• authorise the commission of a tort;
• disregard common law protection of personal reputation;
• give executive immunities a wide application;
• restrict access to the courts; and
• interfere with any other similar legal right, freedom or privilege.

It’s a significant—and long—list.

The inquiry has two main tasks. The first is to identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges. The second task we have is to critically examine those laws to determine whether the encroachment is appropriately justified. We have been asked to focus, 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 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. There are two broad aspects: a treatise aspect; and a law reform ‘product’. With respect to the first aspect, 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. We received over 140 public submissions in response.

Encroaching on rights in the parliamentary context

Rights are rarely absolute and will sometimes conflict with each other. Few think that free speech, for example, is an absolute right. The International Covenant on Civil and Political Rights recognises that free speech carries with it special duties and responsibilities, and may be subject to restrictions—but only when necessary and as provided by law. There are inherent limits which aren’t strictly ‘encroachments’ at all.

Our starting point for looking at legislative encroachments on rights in the Australian context is parliamentary supremacy—and the common law. Given the constitutional history context in common law countries, this is undeniably the necessary place to start. Many of the rights, freedoms and privileges listed in our Terms of Reference may be seen as creatures of the common law—and long before the various international conventions, like the ICCPR, that now also protect them. The Hon Robert French, Chief Justice of the High Court of Australia, has said:

many of the things we think of as basic rights and freedoms come from the common law and how the common law is used to interpret Acts of Parliament and regulations made under them so as to minimise intrusion into those rights and freedoms.[3]

Intrusions upon rights should be minimised, but French CJ also affirmed that this interpretation of Acts by Courts is something that occurs ‘against the backdrop of the supremacy of Parliament’:

which can, by using clear words for which it can be held politically accountable, qualify or extinguish those rights and freedoms except to the extent that they may be protected by the Constitution.[4]

Whether the words of parliament are clear enough, is expressed in terms of the principle of legality—a rule of statutory interpretation. Perhaps the primary rationale for this principle of was provided by Lord Hoffmann:

the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.[5]

If Parliament ‘squarely confronts’ the issue of encroachment and the intention is clear and unambiguous, then the statute will be interpreted to have its desired effect. Subject to the Australian Constitution, Parliament can modify or extinguish common law rights. This is the essence of parliamentary supremacy and courts must give full weight to it. In other words, Parliament must confront encroachment squarely, own it politically, and defend it in legislative terms unambiguously. And, I should add, suffer the political consequences: political accountability means you can get voted out.

Justifying encroachments

Perhaps the biggest challenges come in the area of national security, particularly when Parliaments understand very well that they are encroaching on rights and freedoms, and wish to do so anyway. This is particularly the case when legislation is passed with bi-partisan support.  It weakens the element of ‘political accountability’.

Our democratic processes have many checks and balances. Our society, I would like to think, is essentially a rights-minded one. This ‘rights-mindedness’ is tested squarely in the area of national security.

During the Second World War our government, and others, faced problems of confronting national security threats of their day. The then Prime Minister, the Right Hon Robert Gordon Menzies, spoke of freedom of speech (and other things) at stake during wartime.[6] Menzies said that ‘the worst crime’ of fascism and Nazism (which he described as ‘the twin brother’ of fascism), is ‘their suppression of free thought and free speech’. Menzies’s own initiatives eight years later to ban the Communist Party (in 1950) were tested well through the checks and balances processes we have in our democracy. He got his legislation through parliament to dissolve the party, but the High Court overturned it. Menzies then took the matter to the people via a referendum and lost. It was a good test of principle and democratic processes. And there are eerie resonances with today with the ‘war on terror’.

In looking at legislation passed in the interests of national security, the question is what is the appropriate balance between freedom and security. We have had to look at this question through the lens of considering whether laws that encroach on freedoms are appropriately justified.

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. Proportionality may have an increasingly significant role to play in such scrutiny processes.

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—that is, in jurisdictions without a constitutional bill of rights. So called ‘political rights review’ or ‘legislative rights review’, Professor Janet Hiebert has written,

entails new responsibilities and new incentives for public and political officials to assess proposed legislation in terms of its compatibility with protected rights. This innovation results in multiple sites for non-judicial rights review (government, the public service, and parliament), which distinguish this model from the American-inspired approach that relies almost exclusively on judicial review for judgments about rights.[7]

The procedural justificatory processes also extend before and after Parliament. For example, in developing policies, government departments are encouraged to think about the effect a proposed law will have on fundamental rights. Bills and disallowable legislative instruments presented to Parliament must have a ‘statement of compatibility’ that assesses the legislation’s compatibility with the rights and freedoms in seven international human rights instruments (which include most of the traditional rights and freedoms in the ALRC’s Terms of Reference). The Attorney-General’s Department plays an important role in providing advice about human rights law and often assists agencies prepare statements of compatibility and explanatory memoranda.[8] The Office of Parliamentary Counsel will also consider common law rights and freedoms when drafting legislation, and may question departments about proposed laws that appear to unduly interfere with rights.

There are multiple parliamentary committees that review legislation, and three committees have a particular role in considering whether proposed laws are compatible with basic rights: the Senate Standing Committee for the Scrutiny of Bills, the Senate Standing Committee on Regulations and Ordinances, and the Parliamentary Joint Committee on Human Rights—established in 2011. There is also the important work of the Parliamentary Joint Committee on Intelligence and Security and the Parliamentary Joint Committee on Law Enforcement.

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. Section 24 of the ALRC Act states how we are to perform our functions.

(1)  In performing its functions, the Commission must aim at ensuring that the laws, proposals and recommendations it reviews, considers or makes:

(a)  do not trespass unduly on personal rights and liberties or make the rights and liberties of citizens unduly dependent on administrative, rather than judicial, decisions; and

(b)  are, as far as practicable, consistent with Australia’s international obligations that are relevant to the matter.

(2)  The Commission, when formulating recommendations, must have regard to the effect that the recommendations may have on:

(a)  the costs of getting access to, and dispensing, justice; and

(b)  persons and businesses who would be affected by the recommendations (including the economic effect, for example).

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.[9]

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.[10] 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.[11]

And the list goes on …

One aspect of what we are doing is to map how all of these scrutiny processes fit together. In the context of parliamentary supremacy, issues of encroachment on rights must be confronted squarely, stated unambiguously, and owned politically.

This doesn’t mean that Parliament’s answers are always ‘right’—although rights-minded people may well differ on ‘the’ answer in such contexts. 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.

Our approach

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. I note, too, that we refer to 17 earlier inquiries of our own. In this inquiry we received over 140 submissions across the range. In other inquiries we would get that number for the specific Terms of Reference of the particular inquiry.

We are also able to identify where further improvements in the ability to provide a meaningful check on unjustified legislative encroachments on fundamental rights, freedoms and privileges can be made. These include:

• additional guidance and assistance for policy makers during the policy development and legislative drafting;
• the quality of explanatory material and statements of compatibility;
• the level of overlap between the work of the three scrutiny committees;
• the time available for committees to conduct its scrutiny; and
• the extent to which the Parliament considers committee reports in passing legislation.

To finish my presentation this evening, 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.[12] In this wide ranging inquiry, we will help to fan those flames, as well as 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.

National Freedoms Symposium, Federal Court, Queens Square, Sydney, 8 October 2015.

Speaking notes

• Professor Rosalind Croucher AM, ALRC President and Commissioner for the Inquiry
• Professor Denise Meyerson, Macquarie Law School, Macquarie University  
• Professor Anne Twomey, Sydney Law School, University of Sydney
• Michael Sexton SC, NSW Solicitor-General

National Freedoms Symposium, Federal Court, Melbourne, 30 September 2015.

Chaired by the Hon Justice John Eric Middleton, Part-time Commissioner, Federal Court of Australia, Melbourne

Speaking notes: 

• Professor Rosalind Croucher AM, ALRC President and Commissioner for the Inquiry
• Professor Jeremy Gans, Melbourne Law School, University of Melbourne
• Dr Matthew Groves, Professor, Faculty of Law, Monash University
• Professor Adrienne Stone, Director, Centre for Comparative Constitutional Studies, University of Melbourne

National Freedoms Symposium, Constitutional Centre of Western Australia, Perth, 29 September 2015.

Topic: Freedom of speech, association, and movement receive some limited protection through the operation of the common law and under the Constitution. However, these freedoms are not absolute and are frequently in tension with imperatives such as public safety and the protection of rights of others. For example, in recent years, legislation introduced to combat organised crime and terrorism has made provision for anti-consorting laws and control orders. Similarly, section 18C of the Racial Discrimination Act 1975 (Cth) curbs offensive speech where this relates to grounds such as a person’s race. In light of the Australian Law Reform Commission’s Interim Report on Rights and Freedoms, released in July 2015, this panel explores the nature of freedom of speech, association, and movement, how they are currently protected, laws that interfere with them, and the circumstances in which such incursions are justified.

Speaking notes:

• Professor Rosalind Croucher AM, ALRC President and Commissioner for the Inquiry
• Grant Donaldson SC, Solicitor General of WA
• Professor Paul Fairall, Foundation Dean of Law, School of Law, Curtin University
• Dr Murray Wesson, Law School, The University of Western Australia
• Dr Augusto Zimmermann, School of Law, Murdoch University
• Lorraine Finlay, School of Law, Murdoch University