Traditional rights, freedoms and privileges

1.3          The ALRC’s Terms of Reference, which set out and limit the scope of this Inquiry, state that laws that encroach upon 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.

1.4          Following the list above, each chapter of this report considers a particular right, freedom or privilege.^[2]Some chapters consider a few closely related rights together. In this report the ALRC uses the phrase ‘rights and freedoms’ and sometimes simply ‘rights’ as a general term to capture all of the rights listed above.^[3]

Common law foundations

1.5          These rights, freedoms and privileges have a long and distinguished heritage. Many have been recognised by courts in Australia, England and other common law countries for centuries. They form part of the history of the common law, embodying key moments in constitutional history, such as the sealing of the Magna Carta in 1215, the settlement of parliamentary supremacy following the Glorious Revolution of 1688 and the enactment of the Bill of Rights Act 1688.^[4] Many were found and developed by the courts; some were significantly developed by legislatures. 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.^[5]

1.6          In speaking to mark the 800th anniversary of the Magna Carta,^[6] the Hon James Spigelman AC QC, former Chief Justice of the Supreme Court of New South Wales, said that we can ‘trace the strength of our tradition of the rule of law to this document’ and the support of liberties has developed in the wake of the demarcation between the great organs of state.^[7]

What we came to know as civil liberties or, in earlier centuries as the ‘rights of Englishmen’, were the practical manifestations of experience of the law over the centuries as manifest in judicial decisions and in legislation.^[8]

1.7          Many traditional rights, freedoms and privileges are often called fundamental, and are recognised now as ‘human rights’. Murphy J referred to ‘the common law of human rights’^[9] and Professors George Williams and David Hume have written that the common law is ‘a vibrant and rich source of human rights.’^[10]

1.8          Many are now found in international covenants and declarations and bills of rights in other jurisdictions—including, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Bill of Rights in the US Constitution, and the human rights Acts in the United Kingdom, Canada and the two Australian jurisdictions with such Acts, the Australian Capital Territory and Victoria. In Momcilovic v The Queen, French CJ said that the human rights and freedoms in the Charter of Human Rights and Responsibilities Act 2006 (Vic) ‘in significant measure incorporate or enhance rights and freedoms at common law’.^[11]

1.9          Before the wave of international conventions in the aftermath of the Second World War, legislation and the common law were the principal sources of protection of rights and freedoms. In his book, Human Rights and the End of Empire, English legal historian AW Brian Simpson wrote about the widely held assumption that, before international conventions on human rights, human rights were in the UK ‘so well protected as to be an example to the world’. In normal times, Simpson writes, ‘when there was neither war, nor insurrection, nor widespread problems of public order’,

few would deny that people in the United Kingdom enjoyed a relatively high level of personal and political freedom, and had done so earlier in the eighteenth and nineteenth centuries, though most of the population could only participate very indirectly, if at all, in government.^[12]

1.10       These freedoms were also widely respected in the modern period:

In the modern period, and subject to certain limitations which, for most persons, were of not the least importance, individuals could worship as they pleased, hold whatever meetings they pleased, participate in political activities as they wished, enjoy a very extensive freedom of expression and communication, and be wholly unthreatened by the grosser forms of interference with personal liberty, such as officially sanctioned torture, or prolonged detention without trial.^[13]

1.11       To the extent that Australian law has protected and fostered rights and freedoms,^[14] it has long been statutes and judge-made law that have done so. In a 2013 speech, former Justice of the High Court of Australia, the Hon John Dyson Heydon AC QC, considered some of the benefits of protecting rights through statutes and the common law. He said that statutes and the common law protect rights often by ‘detailed and precise rules’ and vindicate ‘human rights directly and specifically’:

[C]ommon law and statutory rules tend to be detailed. They are generally enforceable. They are specifically adapted to the resolution of particular problems. Their makers seek, with some success, to make them generally coherent with each other and with the wider legal system.^[15]

1.12       Taking the right to a fair trial as an example, Heydon said that rules found in certain statutes and in the common law ‘were worked out over a very long time by judges and legislators who thought deeply about the colliding interests and values involved in the light of practical experience of conditions in society to which the rules were applied’.^[16]

1.13       Where Heydon was speaking of the strength of the common law in protecting rights, others have sought protection through human rights statutes.^[17] Whether the introduction of a bill of rights in Australia is desirable is widely debated.^[18] It draws in part upon historical arguments about whether the courts or parliaments are better guardians of individual rights. However, these matters are not the subject of this Inquiry.

1.14       The focus of this Inquiry is on identifying Commonwealth laws that interfere with traditional rights, freedoms and privileges, and determining whether the laws are justified. To frame this discussion, however, it is useful to consider briefly how these rights, freedoms and privileges are currently protected in law from statutory encroachment. Broadly speaking, some protection is provided by the Australian Constitution and, less directly, by rules of statutory construction. It is also useful to consider the nature and function of common law rights.

Australian Constitution

1.15       The Australian Constitution expressly protects a handful of rights and has been found to imply certain other rights. The rights expressly protected by the Constitution are:

• the right to trial by jury on indictment for an offence against any law of the Commonwealth—s 80;

• freedom of trade, commerce and intercourse within the Commonwealth—s 92;

• freedom of religion—s 116; and

• the right not to be subject to discrimination on the basis of the state in which one lives—s 117.

1.16       Section 51(xxxi) of the Constitution also provides that if the Commonwealth compulsorily acquires property, it must do so on ‘just terms’—which may also be conceived of as a right.^[19]

1.17       The High Court has also found certain rights or freedoms to be implied in the Constitution—notably, freedom of political communication.^[20] 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’.^[21]

1.18       A right to vote has also been found to be implied in the Constitution—laws that limit adult suffrage can only be made when the law is proportionate, that is, ‘reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government’.^[22]

1.19       The High Court may also have somewhat moved towards entrenching procedural fairness as a constitutional right.^[23] If procedural fairness were considered an essential characteristic of a court, this might have the potential, among other things, to constitutionalise:

the presumption of innocence, the ‘beyond reasonable doubt’ standard of proof in criminal proceedings, the privilege against self-incrimination, limitations on the use of secret evidence, limitations on ex parte proceedings, limitations on any power to continue proceedings in the face of an unrepresented party, limitations on courts’ jurisdiction to make an adverse finding on law or fact that has not been put to the parties, and limitations on the power of a court or a judge to proceed where proceedings may be affected by actual or apprehended bias.^[24]

1.20       It remains to be seen whether this will become settled doctrine of the court.

1.21       The Constitution does not, therefore, directly and entirely protect many of the rights, freedoms and privileges listed in the ALRC’s Terms of Reference. One reason the Constitution does not expressly protect most civil rights, Professor Helen Irving suggests, was 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.^[25]

1.22       In Australian Capital Television v Commonwealth,Dawson J suggested that those who drafted the Constitution saw constitutional guarantees of freedoms as ‘exhibiting a distrust of the democratic process’:

They 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.^[26]

A common law constitution?

1.23       The term ‘common law constitutionalism’ is now ‘widely used to denote the theory that the most fundamental constitutional norms of a particular country or countries (whether or not they have a written constitution) are matters of common law’.^[27] Under this theory, many of the rights and freedoms listed in the ALRC’s Terms of Reference would be considered constitutional.

1.24       Commonly associated with the writing of Professor TRS Allan^[28] and Lord Justice John Laws,^[29] common law constitutionalism has been called ‘a potent phenomenon within contemporary public law discourse’.^[30] Professor Allan has written that ‘the common law is prior to legislative supremacy, which it defines and regulates’.^[31] Elsewhere, Allan wrote:

We should not underestimate the power of the common law constitution to protect fundamental rights, and the central role it ascribes to the individual conscience in testing the moral credentials of law, or rather of what purports to be law but may, on inspection, prove to be an infringement of the rule of law.^[32]

1.25       Some even suggest that courts may invoke this common law constitution to invalidate Acts of Parliament.^[33] The theory has therefore been said to invert the traditional relationship between statute law and the common law.^[34] Professor Jeffrey Goldsworthy, a critic of common law constitutionalism, has written that the theory amounts to a ‘takeover bid’ which replaces legislative supremacy with judicial supremacy.^[35]

1.26       The theory has its leading proponents in the United Kingdom, which lacks a written and rigid constitution. In Australia, it has had only limited application; it has not been applied to invalidate unambiguous statutes. In South Australia v Totani, French CJ said:

[I]t is self-evidently beyond the power of the courts to maintain unimpaired common law freedoms which the Commonwealth Parliament or a State Parliament, acting within its constitutional powers, has, by clear statutory language, abrogated, restricted, or qualified.^[36]

1.27       Common law constitutionalism does however find an application in an accepted principle of statutory construction known as the ‘principle of legality’.

The principle of legality

1.28       The principle of legality is a principle of statutory interpretation that gives some protection to certain traditional rights and freedoms, including almost all of those listed in the ALRC’s Terms of Reference.^[37] In fact, as Spigelman 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’.^[38]

1.29       The principle of legality perhaps goes back ‘at least as far as Blackstone and Bentham’.^[39] It may be a ‘new label’ for a traditional principle.^[40] Early Australian authority may be found in the 1908 High Court case, Potter v Minahan.^[41] A more recent statement of the principle appears in Re Bolton; Ex parte Beane:

Unless 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.^[42]

1.30       The rights or freedoms protected by the principle of legality ‘often relate to human rights and are sometimes described as having a constitutional character’.^[43] The principle ‘extends to the protection of fundamental principles and systemic values’.^[44] There is no settled list of rights protected by the principle, but in Momcilovic Heydon J set out the following examples:

freedom from trespass by police officers on private property; procedural fairness; the conferral of jurisdiction on a court; and vested property interests…; rights of access to the courts; rights to a fair trial; the writ of habeas corpus; open justice; the non-retrospectivity of statutes extending the criminal law; the non-retrospectivity of changes in rights or obligations generally; mens rea as an element of legislatively-created crimes; freedom from arbitrary arrest or search; the criminal standard of proof; the liberty of the individual; the freedom of individuals to depart from and re-enter their country; the freedom of individuals to trade as they wish; the liberty of individuals to use the highways; freedom of speech; legal professional privilege; the privilege against self-incrimination; the non-existence of an appeal from an acquittal; and the jurisdiction of superior courts to prevent acts by inferior courts and tribunals in excess of jurisdiction.^[45]

1.31       Perhaps 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. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.^[46]

1.32       The ‘political cost’ of the decision was also something alluded 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’.^[47] As suggested in Coco v The Queen, the principle may ‘enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights’.^[48]

1.33       The principle of legality may be applied not only to statutes, but also to regulations and other delegated legislation, where in fact it may assume greater importance, given such laws are not made directly by Parliament.^[49]

1.34       Finally, it should be stressed that the principle ‘does not constrain legislative power’.^[50] Subject to the Constitution, Parliament has the power to modify or extinguish common law rights. Chief Justice Robert French has said the principle has a ‘significant role to play in the protection of rights and freedoms’, but it does not ‘authorise the courts to rewrite statutes’.^[51] The principle of legality will therefore be applied only where the parliamentary intention to encroach on a right is not clear. Moreover, it will have a very limited application where encroaching on the particular right is clearly the objectof a statute.^[52]

The nature of common law rights and principles

1.35       Some of the rights and freedoms listed in the Terms of Reference are justiciable legal rights—they give rise to legal obligations and may be enforced in courts of law. In a 2010 speech, ‘Protecting Human Rights Without a Bill of Rights’, Chief Justice French said:

It is also important to recognise… that common law ‘rights’ have varied meanings. In their application to interpersonal relationships, expressed in the law of tort or contract or in respect of property rights, they are justiciable and may be said to have ‘a binding effect’. But ‘rights’, to movement, assembly or religion, for example, are more in the nature of ‘freedoms’. They cannot be enforced, save to the extent that their infringement may constitute an actionable wrong such as an interference with property rights or a tort.^[53]

1.36       As suggested by French CJ, not all rights are protected by positive laws. Many are freedoms or liberties and are protected in Australia by virtue of the fact, and only to the extent, that laws do not encroach on the freedom. The High Court said in Lange v Australian Broadcasting Corporation:

Under a legal system based on the common law, ‘everybody is free to do anything, subject only to the provisions of the law’, so that one proceeds ‘upon an assumption of freedom of speech’ and turns to the law ‘to discover the established exceptions to it’.^[54]

1.37       Many common law rights may therefore be largely residual,^[55] and perhaps for this reason, more vulnerable to statutory encroachment.^[56]

1.38       In Dietrich v R, Brennan J distinguished rights included in a constitutional Bill of Rights from individual legal rights recognised by the common law in Australia:

In this country, a Court might declare an individual legal right bearing some resemblance to a right conferred by a constitutional Bill of Rights. But such an individual legal right is distinguishable from a right conferred by a constitutionally entrenched Bill of Rights, for it is either (i) an immunity resulting from a limitation on legislative power imposed otherwise than by reference to the scope of the right itself, or (ii) a right amenable to abrogation by competent legislative authority. The only legal sources from which such ‘rights’ may emerge are the text of the Constitution of the Commonwealth and other organic laws governing our legal system, statutes and the common law. Rights can be declared upon a construction of the Constitution or other organic laws, upon a construction of a statute, or by judicial development of the rules of the common law.^[57]

1.39       In many countries, rights and freedoms are afforded some protection from statutory encroachment by bills of rights and human rights statutes. The degree of protection offered by these statutes varies. The protection offered by a constitutionally entrenched bill of rights, such as that found in the United States Constitution, is considerable, allowing the judiciary to declare laws invalid on the grounds that they are inconsistent with the bill of rights.

1.40       This may be contrasted with the Human Rights Act 1998 (UK), which does not give courts the power to strike down legislation, but instead, provides that ‘[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’.^[58]

1.41       Similarly, s 32(1) of the Victorian Charter provides: ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’. French CJ has said that this is ‘analogous to the common law principle of legality’.^[59]

1.42       Common law rights overlap with the rights protected in these international instruments and bills of rights. In their history and development, each may be seen as an important influence on the other. A statute that encroaches on a traditional common law right will often, therefore, also encroach on its related human right. However, the two rights may not always have the same scope. As noted above, some common law rights are largely conceived of as residual; they exist to the extent that no law is made that interferes with them. Human rights are rarely thought of in this way, and moreover have been said to grow both in content and form—more rapidly, some suggest, than common law rights. Professor Tom Campbell has written:

More and more interests are recognized as justifying the protection that flows from being adopted as a human right. This growth is a matter of the form of human rights as well as their content. Thus, even traditional core civil and political liberties are seen as involving positive correlative duties to secure the interest identified in the right, and not, as before, merely negative correlative duties to let people be and leave them alone to go their own way. Human rights are also being put to a wider variety of uses.^[60]

1.43       Many social and economic rights are also recognised as human rights in international law—for example, the right to work and the right to housing. As important as these rights may be, they are not the focus of this Inquiry.

1.44       In the absence of a specific legislative restriction which is consistent with the Constitution, the enjoyment of common law rights and freedoms is not confined to Australian citizens. For example, the guarantee of jury trial by s 80 of the Constitution in respect of indictable federal offences is conferred irrespective of the status of the accused. At common law, aliens who are not classified as enemy aliens are treated as being within ‘the Queen’s Peace’, not as outlaws placed beyond the ordinary legal system. The High Court has noted on several occasions that an alien, other than an enemy alien, is, while resident in Australia, entitled to the same protection with respect to civil rights as the law affords to Australian citizens.^[61]

International law and the common law

1.45       Each chapter of this Interim Report sets out examples of international instruments that protect the relevant right or freedom. Most commonly cited is the International Covenant on Civil and Political Rights (ICCPR),^[62] to which Australia is a party.^[63] Such instruments provide some protection to rights and freedoms from statutory encroachment, but, like the principle of legality, generally only when a statute is unclear or ambiguous.^[64]

Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party.^[65]

1.46       In Mabo, Brennan J said that ‘international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights’.^[66]

1.47       However, even international instruments to which Australia is a party do not create binding domestic law in Australia. Nor do they abrogate the power of the Commonwealth Parliament to make laws that are inconsistent with the rights and freedoms set out in these instruments. In Dietrich v The Queen, Mason CJ and McHugh J said:

Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions.^[67]

1.48       In Minister for Immigration v B, Kirby J said that the High Court ‘cannot invoke international law to override clear and valid provisions of Australian national law’.^[68] However, as Kiefel J said in The Malaysian Declaration Case:

[A] statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with established rules of international law…. However, if it is not possible to construe a statute conformably with international law rules, the provisions of the statute must be enforced even if they amount to a contravention of accepted principles of international law.^[69]