Peter A Clarke

The Attorney General announced an Australian Law Reform Commission enquiry into traditional rights and freedoms in the context of Commonwealth Legislation that might restrict them.  Given the commentary in the last 18 months this should hardly come as a surprise.

The press release provides:

NEW AUSTRALIAN LAW REFORM INQUIRY TO FOCUS ON FREEDOMS

The Attorney-General, Senator the Hon George Brandis QC, has asked the Australian Law Reform Commission (ALRC) to review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges.

Senator Brandis said that the review will be one of the most comprehensive and important ever undertaken by the ALRC.

“This is a major instalment towards the commitment I made to restore the balance around the issue of human rights in Australia,” said Senator Brandis.

“I have asked the Commission to identify where traditional rights, freedoms and privileges are unnecessarily compromised within the legal structure of the Commonwealth.  Where encroachments exist, the Commission will determine whether they are justified. 

“For too long we have seen freedoms of the individual diminish and become devalued. The Coalition Government will strive to protect and restore them.”

“Freedoms are some of the most fundamental of all human rights. They underpin the principles of democracy and we cannot take them for granted. 

“The Commission will focus in particular upon commercial and corporate regulation; environmental regulation; and workplace relations.”

The Attorney-General has asked the Commission to provide its report by 1 December 2014.   The proposed terms of reference are attached.

 

The terms of reference are:

Proposed Terms of Reference

REVIEW OF COMMONWEALTH LAWS FOR CONSISTENCY WITH TRADITIONAL RIGHTS, FREEDOMS AND PRIVILEGES

I, Senator the Hon George Brandis QC, Attorney-General of Australia, having regard to the rights, freedoms and privileges recognised by the common law,

REFER to the Australian Law Reform Commission for inquiry and report pursuant to section 29(1) of the Australian Law Reform Commission Act 1996 (Cth);

• Identification of Commonwealth laws that encroach upon traditional rights, freedoms and privileges;  and
• a critical examination of those laws to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified.

For the purposes of the inquiry ‘laws that encroach upon traditional rights, freedoms and privileges’ are to be understood as laws that:

• reverse or shift the burden of proof;
• deny procedural fairness to persons affected by the exercise of public power;
• exclude the right to claim the privilege of self-incrimination;
• abrogate legal professional privilege;
• apply strict or absolute liability to all physical  elements of a criminal offence;
• interfere with freedom of speech;
• interfere with freedom of religion;
• interfere with vested property rights;
• interfere with freedom of association;
• interfere with freedom of movement;
• disregard common law protection of personal reputation;
• authorise the commission of a tort
• inappropriately delegate legislative power to the Executive;
• give executive immunities a wide application;
• retrospectively change rights and obligations;
• retrospectively extend criminal law;
• alter criminal law practices based on the principle of a fair trial;
• permit an appeal from an acquittal;  and
• restrict access to the courts;

 focusing in particular upon:

• commercial and corporate regulation;
• environmental regulation;  and
• workplace relations.

Scope of the reference

In undertaking this reference, the Australian Law Reform Commission should consider Commonwealth laws.  In considering if any changes to Commonwealth law should be made, the Australian Law Reform Commission should consider:

• how laws are drafted, implemented and operate in practice;  and
• any safeguards provided in the laws, such as rights of review or other scrutiny mechanisms.

Consultation

In undertaking this reference, the Australian Law Reform Commission should identify and consult relevant stakeholders, including relevant Commonwealth departments and agencies, the Australian Human Rights Commission, and other key non-government stakeholders.

Timeframe

The Commission is to provide its report by 1 December 2014.

It will be interesting to see how this newly announced ALRC inquiry converges or bypasses the current ALRC inquiry into a statutory right to privacy. The former is focused on existing Commonwealth legislation.  Given there is no statutory right to privacy there should be no overlap.  But life is rarely that simple.