Launch of ALRC Report 129, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws

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!