The ALRC’s Freedoms Report and Government Lawyers— Issues on the Horizon

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

Transcript

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

Acknowledgments

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

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

The Freedoms Inquiry

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

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

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

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

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

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

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

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

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

Contextual Landscape

Protection of rights

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

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

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

The Australian Constitution

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

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

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

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

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

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

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

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

The principle of legality

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

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

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

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

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

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

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

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

The approach in the Freedoms Report

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

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

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

What about Justification?

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

Procedural justification

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Both obligations reflect the lenses of the Parliamentary scrutiny committees.

The Independent National Security Legislation Monitor (INSLM) also plays a key role in the vigilance concerning rights. The INSLM must review, on his or her own initiative, or arising from a reference from the Prime Minister or the Parliamentary Joint Committee on Intelligence and Security, the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation, and any other laws which relate to counter-terrorism or national security.[58] As part of its review, the INSLM must consider whether these laws contain appropriate safeguards to protect the rights of the individual, and are proportionate and necessary.[59]

Because of the close relationship between many traditional common law rights and many human rights protected by international covenants and instruments, an important role is also played by the Australian Human Rights Commission.

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

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

Substantive Justification

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

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

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

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

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

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

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

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

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

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

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

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

Outcomes

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

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

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

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

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

Issues on the Horizon

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

Freedom of speech

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

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

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

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

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

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

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

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

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

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

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

Property rights

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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