Podcast:Traditional Rights and Freedoms—Encroachments by Commonwealth Laws – the Final Report


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

Hi Ros. How are you?

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

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

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

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

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

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

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

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

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

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

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

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