Lawfare: What lawyers, academics and others said about our system of law

FOLLOWING is a summary of the Australian Law Reform Commission Report 129 “Traditional Rights and Freedoms: Encroachments by Commonwealth Laws”. Readers may find the report useful given the publicity this week received by so-called “sovereign citizen” groups.

While we support the right of people to explore alternative concepts of law, Cairns News suggests that rather than go outside of Australia’s law, freedom-loving Australians should look into it, be better informed and support actions that defend our basic freedoms. There are pro-freedom groups that have decades of experience in dealing with courts and law.

ON May 19^th, 2014, the Australian Law Reform Commission (ALRC) received Terms of Reference to undertake a Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and Privileges.

Professor Rosalind Croucher AM, President of the ALRC, wrote to then Commonwealth Attorney General, Senator George Brandis, presenting the report:

“On behalf of the Members of the Commission involved in this Inquiry and in accordance with the Australian Law Reform Commission Act 1996, I am pleased to present you with the Final Report on this reference Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Final Report 129, 2015).”

Did Brandis act on any reports recommendations? Not that we are aware of and probably not, because six years later the Federal Government under Scott Morrison, in collusion with the states, turned Australia into a police state, contrary to every right and freedom upheld by our Common and Constitutional law.

The report covered 10 critical definitions of rights common to Australians in the following order: Freedom of Speech; Freedom of Religion; Freedom of Association and Assembly; Freedom of Movement; Fair Trial; Burden of Proof; Strict and Absolute Liability; Privilege Against Self Incrimination; Legal Professional Privilege; Retrospective Laws; Procedural Fairness; Judicial Review; Immunity From Civil Liability; Delegating Legislative Power; Property Rights; Personal Property Rights; Property Rights – Real Property;

The Review was conducted with two main objectives: (i) “the identification of Commonwealth laws that encroach upon traditional rights, freedoms and privileges”; and (ii) “a critical examination of those laws to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified.”

The Review stated further: “For the purpose 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 against self-incrimination;

· abrogate client legal 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 legal rights and obligations;

· create offences with retrospective application;

· alter criminal law practices based on the principle of a fair trial;

· permit an appeal from an acquittal;

· restrict access to the courts; and

· interfere with any other similar legal right, freedom or privilege.

Cairns News asks: Can we find one element identified in that list that was not violated during the Federal and State-imposed Covid lockdown? There may be two or three. But in regard to other clear violations, why has no government authority as yet been held to account in a court of law?

Thankfully, there have been a few Senators like Roberts, Rennick, Babet and Antic who did their best to hold the various departments and ministers to account over their various Covid outrages. But the major parties as a whole acted with apathy and cowardice.

Brandis himself, who has left the Senate and his now pulling backroom Liberal Party strings, was apparently happy to file the report and leave it there. We also noted the shafting of Senator Rennick by the Queensland Liberals giving him only one term.

That little operation tells us that Liberal backroom boys don’t like politicians that do their job. They, like their Labor backroom gangs, simply want an obedient arse on a seat to say yes or no when they are told.

Brandis showed his true colours when he told the ABC after the failed Dutton campaign: “We alienated women. We offended public servants. We offended multicultural communities. We insulted people who live in the inner cities. It was almost as if we were running out of new people to offend.”

Rights and freedoms, it seems, are simply not a priority for the powerbrokers behind the Liberal Party of Australia or the Labor Party, hence they thoroughly deserve the tag “Uniparty”. The Nationals are caught in a tenuous position between them, but have some strong conservative voices not cowed by Liberal political correctness.

The Review was dominated by lawyers and academics, all of whom are listed on pages 7 & 8. It runs to 596 pages. Following are some report findings and statements we see as important and relevant to Australia circa 2025:

Page 11: “1.5 There are other important rights not expressly included in the extensive list in the Terms of Reference. 2 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’; 3 the right not to be unlawfully or arbitrarily detained; the right to privacy—‘upon which the exercise of many other rights depends’; 4 and the right not to be tortured…”

“Common law and constitutional settings

1.6 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.

1.7 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.”

Comment: Courts failed spectacularly in this respect in regard to the cases launched against the NSW government’s violation of rights during the Covid pandemic aka Plandemic.

“1.8 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.”

Page 12 “1.9 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.”

Page 13 “1.14 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.”

“1.15 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.”

Page 15 Freedom of speech

“1.24 Freedom of speech has been described as ‘the freedom par excellence; for without it, no other freedom could survive’ and is closely linked to other fundamental freedoms, such as freedom of religion, thought, and conscience.

1.25 In Australia, legislation prohibits, or renders unlawful, speech or expression in any different contexts—including in relation to various terrorism offences and terrorism-related secrecy offences, other secrecy laws and the Racial Discrimination Act 1975 (Cth) (RDA). At the same time, many limitations on speech have long been recognised by the common law itself, such as incitement to crime, obscenity and sedition…”

Page 16 Freedom of Association

… “1.32 A wide range of Commonwealth laws may be seen as interfering with freedom of association or freedom of assembly. These include counter-terrorism and other criminal laws and laws concerning public assembly, workplace relations, migration, and anti-discrimination. Many of these laws provide limitations on freedom of association or assembly that have long been recognised by the common law itself—for example, in relation to consorting with criminals, public assembly and other aspects of preserving public order. Areas of most concern include aspects of counter-terrorism and the character test in migration law.”

Freedom of movement

“1.34 Freedom of movement at common law primarily concerns the freedom of citizens both to move freely within their own country and to leave and return to their own country. Freedom of movement has commonly—both in theory and practice— been subject to exceptions and limitations. For example, the freedom does not extend to people trying to evade punishment for a crime and, in practice, a person’s freedom to leave one country is limited by the willingness of other countries to allow that person to enter.

1.35 A range of Commonwealth laws may be seen as interfering with freedom of movement. Some of these provisions relate to limitations that have long been recognised by the common law itself, for example, in relation to official powers of arrest or detention, customs and passport controls, and quarantine.

Fair trial

“1.37 The right to a fair trial is an absolute right and a requirement of the rule of law. Fundamentally, a fair trial is designed to prevent innocent people being convicted of 1. Executive Summary 17 crimes. Fair trials protect life, liberty, property, reputation and other fundamental rights and interests.

1.38 Some widely recognised components of a fair trial that have been subject to statutory limits include: a trial should be held in public; a defendant has a right to a lawyer; and a defendant has the right to confront the prosecution’s witnesses and test their evidence, and to obtain and adduce their own evidence. Other components of a fair trial, such as the burden of proof and the privilege against self-incrimination, are discussed in separate chapters.

1.39 The common law and statute both feature some limits on fair trial rights, for example to protect vulnerable witnesses and to protect national security interests. Some Commonwealth laws that may be said to affect fair trial rights are uncontentious, but others may need to be reviewed to ensure they are justified. Changes to trial procedures for national security reasons have been criticised, as have laws that protect certain confidential communications even from a defendant seeking to obtain the communications to help prove their innocence in a criminal trial.”

Page 19 Procedural fairness

“1.56 A fair procedure for decision making is an important component of the rule of law. The common law recognises a duty to accord a person procedural fairness before a decision that affects them is made.

1.57 A number of Commonwealth laws affect the common law duty to afford procedural fairness to persons affected by the exercise of public power. Excluding procedural fairness may be justified in some instances—in particular, where urgent action needs to be taken in the public interest.

1.58 Some migration laws that encroach on the duty to afford procedural fairness would benefit from further review…”

Judicial review

1.59 Access to the courts to challenge administrative action is an important common law right and superior courts of record have an inherent jurisdiction to conduct judicial review.

1.60 The primary mechanism used to restrict access to the courts is the privative clause—essentially a legislative attempt to limit access to judicial review in a certain field. However, the courts have construed privative clauses so narrowly that they are sometimes largely or even entirely deprived of effect.

1.61 Privative clauses in Commonwealth laws should be reviewed…”

Page 20 Immunity from civil liability

“1.62 Immunity provisions in legislation can limit the legal protection given to important rights and freedoms. Although sometimes necessary, laws that give immunity from civil liability and authorise what would otherwise be a tort operate to limit individual rights and deny civil redress—and therefore require careful justification…”

Property rights

“1.69 The common law has long regarded a person’s property rights as fundamental. However, property rights could be encroached upon by legislative action, so long as any deprivation was not arbitrary and reasonable compensation was given…
1.71 With respect to real property and the rights of land owners, the main focus of concern is on interferences with the right to use the land and water. State environmental laws are not the concern of this Inquiry; however, from the landholders’ perspective the complexity of the ‘interference’ can only be understood in the light of both state and Commonwealth laws. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) interferes with the right to use land to a limited extent. The next scheduled review of the EPBC Act could reassess whether the interferences are proportionate and explore a range of compensatory mechanisms. This review may also afford an opportunity for consideration of the interrelationship of Commonwealth and state laws. The Water Act 2007 (Cth) does not interfere in a negative way with the water entitlements in the Murray-Darling Basin that have been established under state and territory statutes. However, it may be appropriate for the Act to be reviewed periodically.”

Page 21 Counter-terrorism and national security laws

“1.72 Acts of terrorism are a gross violation of fundamental rights to life and safety and the Government has both a right and a duty to take action to protect its citizens. 19 This may require the enactment of legislation that places limits on traditional rights and freedoms. National security is recognised as a legitimate objective of such limitations, at common law and in international human rights law. 20 1.73 Counter-terrorism and national security laws that encroach on rights and freedoms should nevertheless be justified, to ensure the laws are suitable, necessary and represent a proper balance between the public interest and individual rights…

Page 29 Common law foundations

“2.2 The rights, freedoms and privileges set out in the Terms of Reference have a long and distinguished heritage. Many have been recognised 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 1215,1 the settlement of parliamentary supremacy following the Glorious Revolution of 1688 and the enactment of the Bill of Rights Act 1688. 2 They were recognised and developed by the courts and some were declared and affirmed by historic statutes and further developed by modern legislation.

2.3 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. 3

2.4 Many traditional rights and freedoms are recognised now as ‘human rights’. Murphy J referred to ‘the common law of human rights’ 4 and Professors George Williams and David Hume have written that the common law is ‘a vibrant and rich source of human rights…”

Note 2 Bill of Rights 1688 1 Will & Mar Sess 2 c 2 (Eng). The Bill of Rights remains an important element in the rule of law in Australia, as illustrated by Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; Port of Portland v Victoria (2010) 242 CLR 348.

Page 32 Australian Constitution

2.11 The 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.

2.12 Section 51(xxxi) of the Constitution provides that if the Commonwealth compulsorily acquires property, it must do so on ‘just terms’—which may also be conceived of as a right. 16

2.13 The High Court has also found certain rights or freedoms to be implied in the Constitution—notably, freedom of political communication.17 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’.18 The High Court has often said the freedom is not a personal right, but rather is ‘best understood as a constitutional restriction on legislative power’.19

Page 34
“2.19 The Constitution does not 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 writes, 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.2 …

“2.21 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.”

Comment: This is the Supremacy of Parliament doctrine. It is controversial and not as rock solid as Judge Dawson suggests here. It has an inherent danger because it justifies actions taken by rogue parliaments dominated by a single party. Parliaments must respect the common law and the Constitutions.

A common law constitution?

“2.22 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’.31 Under this theory, the common law is said to incorporate fundamental moral principles, against which the legality of governmental decisions, and even Acts of Parliament, may be tested.32 Many of the rights and freedoms listed in the Terms of Reference, even those not fully protected by the Australian Constitution, would be considered constitutional in this way.

2.23 Commonly associated with the writing of Professor Trevor Allan33 and Lord Justice John Laws,34 common law constitutionalism has been called ‘a potent phenomenon within contemporary public law discourse’.35 Allan has written that ‘the common law is prior to legislative supremacy, which it defines and regulates’:36 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.37

2.24 Some even suggest that courts may invoke this common law constitution to invalidate Acts of Parliament.38 The theory has been said to invert the traditional relationship between statute law and the common law.39 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.40 The political constitution, Thomas Poole writes, is ‘turned on its head in

favour of a system of constitutional politics whose central institution is the common law court’.

Page 36 The principle of legality

“2.27 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 Terms of Reference.43 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’.44

2.28 The principle of legality may go back at least as far as Blackstone and Bentham.45 It may be a new label for a traditional principle.46 Early Australian authority may be found in the 1908 High Court case, Potter v Minahan.47 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.’48

2.29 The rights or freedoms protected by the principle of legality ‘often relate to human rights and are sometimes described as having a constitutional character’.49 The principle ‘extends to the protection of fundamental principles and systemic values’.50 There is no settled list of rights protected by the principle, but in Momcilovic, Heydon J set out the following examples:
[F]reedom 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.51”

“2.30 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.52

Page 38 International Law

“2.36 Instruments such as the ICCPR 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:63 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.64

2.37 In Mabo v Queensland [No 2], 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’.65

2.38 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.

Page 40 The nature of common law rights

2.42 Some of the rights and freedoms listed in the Terms of Reference directly give rise to legal obligations and may be enforced in courts of law. Others are more like freedoms or liberties and are protected in Australia by virtue of the fact, and largely only to the extent, that laws do not encroach on the freedom.72 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’.73

2.43 Many common law rights may therefore be largely residual,74 and perhaps for this reason, more vulnerable to statutory encroachment.

Comment: At this stage we are only 40 pages in to this 596-page report. It can be read and/or downloaded and read at the Australian Law Reform Commission website: https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-report-129/