Last week the Attorney-General tabled the Australian Law Reform Commission’s (ALRC’s) Report Traditional Rights and Freedoms – Encroachments by Commonwealth Laws.
This Final Report from the ‘Freedoms Inquiry’ follows on from an Interim Report produced in August last year. You can read our full thoughts on that report here, but in summary we questioned the whole premise of the inquiry. Not only did the terms of reference, which referred to ‘traditional’ rights and freedoms (which may not be so traditional – more on that in a minute) exclude some vital rights; they also effectively wound back the standard for assessing Commonwealth legislation by several years.
The Parliamentary Joint Committee on Human Rights was created in 2011 to examine all new Commonwealth laws for compatibility with Australia’s international human rights obligations, which are the appropriate modern benchmarks for rights compatibility. This represented a big step forward from previous rights compatibility assessments by parliaments in most jurisdictions (other than Victoria and the ACT which have Charters of Rights). Other scrutiny committees such as the Senate Scrutiny of Bills Committee (distinguished though they are) only assess legislation against an unspecified set of ‘personal rights and liberties’ – a very uncertain benchmark. Nevertheless, with the combined work of all the scrutiny committees of the Australian Parliament, the Government already has most of the information it needs on the rights compatibility of legislation – a fact acknowledged by the ALRC.
The terms of reference for the Freedoms Inquiry constituted an attempt to list these ‘personal rights and freedoms.’ This has actually been tried before over the years – mainly in vain due to disagreements over the very idea of listing rights. Many of the big ones are included of course – freedom of speech (which the ALRC calls the freedom par excellence), fair trial rights, freedom of religion, freedom of movement, freedom of association etc. However, there were some huge omissions including privacy, personal liberty, and freedom from torture and other forms of cruel, inhuman and degrading treatment and punishment. To ignore one of the best-established common law rights protections (habeas corpus), presumably on the basis that its inclusion might lead to further criticism of your Government’s detention policies (for asylum seekers, refugees and suspected terrorists), is really inexcusable. It must also be noted that economic, social and cultural rights (other than the right to property) are ignored altogether.
The ALRC found that some of the ‘traditional’ rights protections listed are surprisingly recent in origin, and others are uncertain guarantees at best due to vague jurisprudence. Overall, their scope is unjustifiably narrow compared with even Australia’s core obligations under international human rights law (which, incidentally and somewhat ironically, the ALRC has a mandate to take into account in making recommendations).
Even against the Attorney’s carefully curated list, the ALRC found a great many potentially unjustified encroachments amongst current Commonwealth laws. In particular, migration and anti‑terror laws were found to impinge to a great extent on multiple rights and freedoms. Also figuring prominently was legislation which makes the Government’s life easier by, for example, placing the onus on defendants in criminal trials, imposing strict/absolute liability, providing for compulsory questioning, immunising authorities from liability, excluding judicial review and inappropriately delegating legislative power to the executive. However, possibly to the Attorney’s disappointment, very few encroachments on freedom of speech and freedom of religion were found (despite the Australian’s take on the report).
The Final Report only confirms that section 18C of the Racial Discrimination Act, which arguably kicked this whole inquiry off, might be slightly too broad – a fact already acknowledged by rights experts. Workplace relations laws were found to be (possibly) contrary to ILO norms, but not common law freedom of association. The report also notes in relation to widely-aired religious concerns:
[1.30] There is no obvious evidence that Commonwealth anti-discrimination laws significantly encroach on freedom of religion in Australia, especially given the existing exemptions for religious organisations.
Various criminal and national security laws, on the other hand, were found to offend freedom of association, freedom of movement, fair trial rights, property rights and more. Laws relating to advocacy for terrorism and disclosing intelligence operations were also found to constitute a serious threat to freedom of speech.
None of this will come as a surprise to anyone with more than a passing interest in human rights in Australia, but to have the encroachments catalogued so comprehensively (the Final Report runs to nearly 600 pages) certainly serves as a reminder of just how many rights-infringing laws are on the books. Apart from the Castan Centre, Professor George Williams, the Human Rights Law Centre and others have been warning us for years that our freedoms are being eroded without sufficient justification; now that erosion has been documented more thoroughly than ever before.
Assessing Australian laws against human rights standards remains controversial for those who oppose legislative protections for human rights. There is also trenchant opposition to the idea of performing a legal proportionality assessment, which some consider to usurp the legislative function. However, the ALRC points out that proportionality tests have been widely accepted in other jurisdictions and contexts, and (in my favourite quotation from the report):
[2.82] …proportionality tests offer a valuable way of structuring the critical analysis. They call for a considerable degree of rigour, and are clearly more thorough than mere unsupported statements that a law is justified because it is in the public interest.
This is an indictment of the ‘trust us, this law is in the national interest’ approach often taken by our politicians, who rarely seem to explore less rights-restrictive alternatives to their policies, or back up their claims of a rational connection to a legitimate aim with hard evidence.
As we noted in the Castan Centre submission on the Interim Report, thanks to academic studies and the scrutiny committees of the Australian Parliament, the Government already has both the information and the means at its disposal to ensure that it does not unjustifiably infringe rights and freedoms. It now has, in addition, a handy catalogue of its worst excesses in this regard.
The Attorney’s media release says the Government is ‘committed to preserving and maintaining the freedoms which underpin the principles of democracy.’ However, its practice (both legislative and administrative) to date has greatly expanded the scope of such encroachments, and it has continually sought to remove or undermine relevant oversight and advocacy for reform (details in our submission).
In 2014 the Government announced a war on red tape, and followed up with its ‘omnibus repeal day.’ Might we see something similar in response to the many encroachments on our democratic rights and freedoms identified in this report? The Attorney has written to his fellow Ministers asking them to ‘carefully consider what action might be taken.’ Let’s hope they care as much about rights as they do about red tape.