Appendix C: Inquiry report

Inquiry into Commonwealth laws for consistency with traditional rights, freedoms and privileges

On 9 May 2014, the Attorney-General, Senator the Hon George Brandis QC, provided Terms of Reference to the ALRC for a review of Commonwealth laws for consistency with traditional rights, freedoms and privileges (the Freedoms Inquiry). The ALRC was asked to identify any Commonwealth laws that encroach upon traditional rights, freedoms and privileges. It was also asked to consider how laws are drafted, implemented and operate in practice and consider any safeguards provided in the laws, such as rights of review or other scrutiny mechanisms. The Terms of Reference asked the ALRC to look at 19 traditional rights including such fundamental freedoms as freedom of speech, religion, movement and association; and other important rights and privileges such as property rights, client legal privilege, the right to a fair trial, and access to the courts. The ALRC was also asked to focus on laws in the areas of, but not limited to commercial and corporate regulation; environmental regulation; and workplace relations. The Terms of Reference for this Inquiry are on the ALRC website.

This Inquiry was led by ALRC President, Professor Rosalind Croucher. In July 2015, Emeritus Professor Anura Surindra (Suri) Ratnapala was appointed as a part-time Commissioner for the Inquiry. An Advisory Committee was established and met on 7 May 2015 and on 29 October 2015. The ALRC released an Issues Paper on 10 December 2014 and called for submissions. The ALRC received 82 submissions to the Issues Paper. An Interim Report was released on 3 August 2015 and the ALRC received a further 75 submissions in response. The Final Report was submitted to the Attorney-General on 23 December 2015 and was tabled in Parliament on 2 March 2016.

During the Inquiry the ALRC also undertook 57 face to face consultations with stakeholders. In addition to these consultative processes, and to mark the importance of the Freedoms Inquiry being undertaken in the ALRC’s 40th anniversary year, the ALRC also developed and delivered a national series of discussions around the Freedoms Inquiry, held in Brisbane, Adelaide, Sydney, Perth and Melbourne. Each event focused on different aspects of the Freedoms Inquiry with invited guests who gave short presentations on particular issues. These events were free and proved a lively forum for discussion and debate on several of the key topics under review, including: property rights and the environment; religion, speech and equality; and judicial review, self-incrimination, executive immunities, procedural fairness, fair trial, reverse onus of proof and strict liability.

In the Final Report, the ALRC discusses the source and rationale of these important rights and freedoms and provides an extensive survey of current Commonwealth laws that limit them. The ALRC identified a range of Commonwealth laws that may warrant further consideration or review, providing a road map for future work to ensure that encroachments on rights, freedoms and privileges are avoided or appropriately justified. Additionally, the Report provides a thorough analysis of how laws are scrutinised by government agencies, parliamentary committees and others for compatibility with rights, and examines possible justifications for statutory restrictions of common law rights and freedoms. It discusses how laws that limit traditional rights and freedoms might be critically tested and justified, for example by using a proportionality test. Rights are rarely absolute, but must be balanced with other rights and with the public interest when these interests conflict.

At the launch of the Report at Parliament House, Attorney-General, Senator the Hon George Brandis QC stated:

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.

The Report provides a significant contribution to a broader discussion and debate about protecting rights in democratic societies. The specific outcomes of the ALRC’s review include:

  • discussion of the source and rationale of the traditional rights and freedoms listed in the Terms of Reference;

  • consideration of the protection from statutory encroachment given to traditional rights and freedoms by the Constitution, principles of statutory interpretation and international law—complementing work that considers other ways to protect rights;

  • an extensive survey of Commonwealth laws that encroach on the listed traditional rights and freedoms recognised by the common law;

  • analysis of the justification for a range of these laws;

  • discussion of a proportionality test to provide a structured method of reviewing the justification of laws that limit rights and freedoms;

  • analysis of the law-making processes for testing compatibility of laws with fundamental rights and how these can be improved to ensure that laws that limit traditional rights and freedoms are thoroughly scrutinised; and

  • the highlighting of laws that warrant further consideration or review—to provide a road map for future work to ensure that encroachments on rights, freedoms and privileges are avoided or appropriately justified.