Submission to the Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws Interim Report

In this submission PIAC responds to the recommendations made in the Australian Law Reform Commission’s (ALRC) Interim Report for the Freedoms Inquiry. The Terms of Reference for the inquiry require the ALRC to identify Commonwealth laws that encroach on ‘traditional rights, freedoms and privileges’ and whether these encroachments can be ‘appropriately justified’. In the Interim Report the ALRC takes a two-pronged approach to justification, considering whether there is ‘substantive justification’, such as by applying the legal principle of proportionality, or whether there has been ‘procedural justification’, which focuses on the scrutiny processes for proposed legislation and regulation. The ALRC has identified a number of areas of law that encroach on a right or freedom and, in some cases, recommends that these encroachments may warrant further review. In its submission PIAC notes the limitations of the ALRC’s approach to this inquiry, warning against over-reliance on parliamentary procedure to protect rights and freedom in the absence of legal protection for human rights in the federal jurisdiction. PIAC urges the ALRC to make more concrete recommendations in relation to how the human rights principle of proportionality can be embedded into parliamentary, judicial and review processes, and comments on a number of areas in relation to which the ALRC has recommended further review, in relation to freedom of speech, freedom of religion, freedom of association, delegated legislation and judicial review.