Getting to Grips with Encroachments on Freedoms in Commonwealth Laws

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.