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.