1 The Australian Law Reform Commission was asked to identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges recognised by the common law. The ALRC referred to this large and challenging project as the ‘Freedoms Inquiry’.
2 In the Report, the ALRC discusses the source and rationale of many important rights and freedoms and provides an extensive survey of current Commonwealth laws that limit them. The ALRC also discusses how laws that limit traditional rights and freedoms might be critically tested and justified and whether some of these laws merit further scrutiny. Central to this task is the question of how rights should be balanced with other rights and with the public interest, when these interests conflict. An important consideration is how laws are scrutinised by parliamentary committees and others to ensure they do not unjustifiably encroach on rights.
3 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crucial part in protecting rights, and may inform decisions about whether, and if so how, such laws might be amended or repealed.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 by enacting a bill of rights. The Report contributes to broader discussion and debate about protecting rights in democratic societies. Law and law reform has an important role to play in this ongoing discussion.
Traditional rights, freedoms and privileges
4 The Terms of Reference, provided by the Attorney-General, Senator the Hon George Brandis QC, state that laws that encroach on traditional rights, freedoms and privileges 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.
5 There are other important rights not expressly included in the extensive list in the Terms of Reference. There were calls for some of these other rights to be more fully considered in this Inquiry, including: the right to personal liberty—‘the most elementary and important of all common law rights’; the right not to be unlawfully or arbitrarily detained; the right to privacy—‘upon which the exercise of many other rights depends’; and the right not to be tortured. Some of these are considered to some extent in the Report, in an integrated way, in chapters concerned with related rights. The broad right to personal liberty, for example, is served by many of the rights listed in the Terms of Reference, including the rights to freedom of speech, movement, assembly and religion and the right to a fair trial.
Common law and constitutional settings
6 The rights, freedoms and privileges set out in the Terms of Reference have a long and distinguished heritage. Many have been recognised by courts in Australia, England and other common law countries for centuries. Some are recognised as human rights and are protected in international agreements and bills of rights in other jurisdictions. Human rights have been said to ‘incorporate or enhance’ rights at common law. In their history and development, common law rights and human rights clearly influenced each other.
7 Some common law rights and freedoms are considered to be so important that they have constitutional status, including in countries without a bill of rights. While in Australia ‘common law constitutionalism’ has not been applied by courts to invalidate statutes, the special status of some rights is reflected in how courts interpret legislation. Applying the ‘principle of legality’, courts will not interpret a statute so that it encroaches on, or limits, a fundamental right or common law principle unless Parliament has made it unmistakably clear that it intended the statute to do so. This is similar to interpretation provisions in some human rights statutes.
8 The Australian Constitution expressly protects a handful of rights and has been found to imply certain others, including freedom of political communication. The High Court may also have moved towards entrenching procedural fairness in courts as a constitutional right. However, the Constitution does not directly and entirely protect many rights and freedoms, because those who framed the Constitution chose to leave most matters of policy to Parliament, and relied on the common law and other mechanisms to protect rights.
9 International instruments that Australia has ratified, such as the International Covenant on Civil and Political Rights, also provide rights and freedoms with some protection from statutory encroachment, but generally only through the interpretation of statutes that are unclear or ambiguous. Although international law is an important influence on the common law, it does not create binding domestic law in Australia nor does it abrogate the power of the Commonwealth Parliament to make laws that limit rights.
10 The jurisprudence in relation to international human rights law is a valuable resource for law makers. While the focus of the Inquiry is upon common law rights and freedoms, the ALRC is required, under its Act, to aim to ensure its recommendations are consistent with Australia’s international obligations.
11 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.
12 Most chapters of the Report are structured to include the following elements with respect to each right, freedom or privilege:
an analysis of the source and rationale of the right;
an overview of how the right is protected from statutory encroachment by the Constitution, the principle of legality, and international law;
a general discussion of how limits on the right might be justified;
an extensive survey of current Commonwealth laws that may limit the right; and
a discussion of the justifications for some of these laws, with some laws being identified as possibly unjustified and therefore deserving further review.
13 The Report sets out many of the Commonwealth laws that may be said to interfere with the common law rights and freedoms listed in the Terms of Reference. It provides an extensive survey of such laws, without making concluded judgments about whether these laws are appropriately justified.
14 It is widely recognised that there are reasonable limits to most rights. Only a handful of rights are considered to be absolute. Limits on traditional rights are also recognised by the common law, although such limits may be regarded as part of the scope of common law rights. 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.
15 Proportionality is used to test limits on constitutional rights by the High Court and by constitutional courts and law makers around the world. This involves considering whether a given law that limits 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. 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.
16 The ALRC’s approach in this Inquiry 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.
17 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.
18 The fact that a law has been identified as meriting further review does not imply that the ALRC has concluded the law is unjustified. Further evidence and analysis would be necessary to support such specific conclusions.
19 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’. Professor Graeme Orr, for example, said that, with ‘all the goodwill in the world, it is hard to see how the ALRC can inform itself expertly of the myriad of social contexts needed to cover the vast terrain of issues and laws flagged in its interim report’. 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.
20 The Report also provides a 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’. The Report describes 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.
21 The Report discusses how some scrutiny processes might be improved, for example, by: providing additional guidance and assistance to policy makers; improving the quality of explanatory material and statements of compatibility; reducing overlap between the work of the three parliamentary scrutiny committees; giving the committees longer to conduct their scrutiny; and ensuring Parliament has sufficient time to consider committee reports.
22 The Councils for Civil Liberties said that the Inquiry had ‘provided an opportunity for a national focus on the rapidly increasing numbers of statutes which undermine our rights and freedoms’. The Australian Institute of Company Directors 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 commended the Interim Report’s ‘comprehensive review of the source of traditional rights, freedoms and privileges’.
The Terms of Reference are set out at the front of the Report and on the ALRC website: <www.alrc.gov.au/inquiries/freedoms>.
A list of many other traditional rights and freedoms was included in the last chapter of the Issues Paper.
Australian Human Rights Commission, Submission 141.
Australian Privacy Foundation, Submission 116.
Refugee Advice & Casework Service, Submission 119.
Notwithstanding this, some stakeholders would have preferred dedicated chapters on these other rights. However, given the extensive scope of this Inquiry, the ALRC chose to focus on the rights listed in the Terms of Reference.
Australian Law Reform Commission Act 1996 (Cth) s 24(1).
A list of Commonwealth laws cited in the Report, including those that may interfere with rights and freedoms, appears in Appendix 1. Lists of laws identified as limiting rights are set out in G Williams, Submission 76; Institute of Public Affairs, Submission 49. See also Simon Breheny and Morgan Begg, ‘The State of Fundamental Legal Rights in Australia: An Audit of Federal Law’ (Occasional Paper, Institute of Public Affairs, 2014).
There may also be other laws that deserve further review, which are not highlighted in the Report.
See, eg, Law Council of Australia, Submission 140; Australian Institute of Company Directors, Submission 105.
Refugee Advice & Casework Service, Submission 119.
Public Interest Advocacy Centre, Submission 133.
G Orr, Submission 79.
Secrecy provisions, discussed in Ch 4, for example, were the subject of an ALRC inquiry in 2008–09: Australian Law Reform Commission, Secrecy Laws and Open Government in Australia, Report No 112 (2009). A list of ALRC reports referred to in the Report is included at Appendix 2.
Murray Hunt, ‘Introduction’ in Murray Hunt, Hayley Hooper and Paul Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit (Hart Publishing, 2015) 1, 15–16.
Councils for Civil Liberties, Submission 142.
Australian Institute of Company Directors, Submission 105. The AICD said that the ALRC’s discussion would also ‘benefit State and Territory Governments in their approach to law making’.
Australian Human Rights Commission, Submission 141.