Justifying limits on rights and freedoms

1.53       Laws that interfere with traditional rights and freedoms are sometimes considered necessary. The mere fact of interference will rarely be a sufficient ground of criticism.

1.54       For one thing, important rights often clash with each other, so that some must necessarily give way, at least partly, to others. Freedom of movement, for example, does not give a person unlimited access to another person’s private property, and murderers must generally lose their liberty to protect the lives and liberties of others. Individual rights and freedoms will also sometimes clash with a broader public interest—such as public health or safety, or national security.

1.55       Accordingly, it is widely recognised that there are reasonable limits even to fundamental rights. Only a handful of rights—such as the right not be tortured—are considered to be absolute.^[73] Limits on traditional rights are recognised by the common law. In fact, some laws that limit traditional rights may be as traditional as the rights themselves—although such ‘limits’ may rather define the scope of the rights.

1.56       This is also reflected in the limitations provisions in various bills of rights in other jurisdictions and in international human rights covenants and related guidelines, such as the ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’.^[74]

1.57       Nevertheless, much of the value of calling something a right will be lost if the right is too easily qualified or diluted. Many of the traditional common law principles were developed carefully over long periods of time and have been applied in many cases. In many jurisdictions, these rights and principles are considered so fundamentally important that they have constitutional status. There seems little doubt, therefore, that the common law rights in the Terms of Reference should be treated with considerable respect in law making and should not lightly be encroached upon. Where a law does encroach on a traditional right or principle, the encroachments should be justified.

1.58       ‘Human rights enjoy a prima facie, presumptive inviolability, and will often ‘trump’ other public goods,’ Louis Henkin wrote in The Age of Rights:

Government may not do some things, and must do others, even though the authorities are persuaded that it is in the society’s interest (and perhaps even in the individual’s own interest) to do otherwise; individual human rights cannot be sacrificed even for the good of the greater number, even for the general good of all. But if human rights do not bow lightly to public concerns, they may be sacrificed if countervailing societal interests are important enough, in particular circumstances, for limited times and purposes, to the extent strictly necessary.^[75]

1.59       The ALRC has been asked to consider whether limits on traditional rights and freedoms are ‘appropriately justified’.^[76] This question might be considered on two broad levels. The first involves testing the law according to a particular measure or standard—such as proportionality. Laws that pass this standard might be said to have been substantively justified. This is the most commonly used meaning of the word justified, in this context, and it is the main focus of this Inquiry. The second level concerns the processes that lead to the making of the law—the procedural justification. Both of these types of justification are discussed below.

Proportionality

1.60       A common way of determining whether a law that limits rights is justified is by asking whether the law is proportionate. Although it is commonly used by courts to test the validity of laws that limit constitutional rights,^[77] proportionality tests can also be a valuable tool for law makers and others to test the justification of laws that limit important (even if not constitutional) rights and principles.^[78]

1.61       A 2012 book on the jurisprudence of proportionality includes this ‘serviceable—but by no means canonical—formulation’ of the test:

1.   Does the legislation (or other government action) establishing the right’s limitation pursue a legitimate objective of sufficient importance to warrant limiting a right?

2.   Are the means in service of the objective rationally connected (suitable) to the objective?

3.   Are the means in service of the objective necessary, that is, minimally impairing of the limited right, taking into account alternative means of achieving the same objective?

4.   Do the beneficial effects of the limitation on the right outweigh the deleterious effects of the limitation; in short, is there a fair balance between the public interest and the private right?^[79]

1.62       Proportionality has been called the ‘most important doctrinal tool in constitutional rights law around the world for decades’^[80] and ‘the orienting idea in contemporary human rights law and scholarship’.^[81]

Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, and South Africa, as well as the jurisprudence of treaty-based legal systems such as the European Court of Human Rights, giving rise to claims of a global model, a received approach, or simply the best-practice standard of rights adjudication. Even in the United States, which is widely understood to have formally rejected proportionality, some argue that the various levels of scrutiny adopted by the US Supreme Court are analogous to the standard questions posed by proportionality.^[82]

1.63       Proportionality is also used by Australian parliamentary committees to scrutinise Bills. The Parliamentary Joint Committee on Human Rights, for example, applies a proportionality test. The Committee’s Guide to Human Rights states:

A key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. Even if the objective is of sufficient importance and the measures in question are rationally connected to the objective, the limitation may still not be justified because of the severity of its impact on individuals or groups.^[83]

1.64       A classic discussion of the principle of proportionality may be found in the 1986 Canadian Supreme Court case of R v Oakes.^[84] This case concerned a statute, the Narcotic Control Act, which placed a legal burden of proof on the defendant, and so undermined the person’s right, under the Canadian Charter of Rights and Freedoms, to be presumed innocent until proven guilty. Section 1 of the Canadian Charter guarantees the rights and freedoms in the Charter ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.^[85] Dickson CJ said that to establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied.

1.65       The first criterion concerned the importance of the objective of the law.

First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.^[86]

1.66       Secondly, the means chosen for the law must be ‘reasonable and demonstrably justified’, which involves ‘a form of proportionality test’ with three components:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair ‘as little as possible’ the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance’.^[87]

1.67       In each case, Dickson CJ said, courts will be ‘required to balance the interests of society with those of individuals and groups’.^[88] There are variations, but the language in Oakes is reflected in most proportionality tests.

1.68       In Australia, a kind of proportionality test is applied when courts consider the validity of a law that limits the constitutional right to political communication. In considering such laws, courts look at whether the law is ‘reasonably appropriate and adapted to serve a legitimate end’.^[89] In this context, the phrase ‘reasonably appropriate and adapted’ does not mean ‘essential’ or ‘unavoidable’, but has been said to be closer to the notion of proportionality.^[90] Professor Adrienne Stone has written that, in other circumstances, the ‘reasonably appropriate and adapted to’ formula has been used as ‘a very minimal standard of review’:

By contrast, the proportionality formula, which has also been used to interpret grants of Commonwealth power, is a more rigorous tool of judicial review. In contrast to its previous deference, when employing the language of proportionality the High Court would ask whether the end could be pursued by less drastic means, and it has been particularly sensitive to laws that impose adverse consequences unrelated to their object, such as the infringement of basic common law rights…. This kind of test resembles those employed in European Union law and in Canada.^[91]

1.69       Despite the benefits of a structured proportionality analysis, some flexibility in approach may have benefits. Williams and Hume write that the Australian High Court’s ‘incompletely theorised agreement about the verbal formulation of the proportionality test has allowed the Court to forge majorities recognising rights rather than falling into disputes about the precise jurisprudential basis of how to balance those rights against other rights and the public interest’.^[92]

1.70       Proportionality—‘a single flexible standard’—has been contrasted with the law of the First Amendment to the US Constitution, which ‘uses a multitude of less flexible, but more precise, rules designed to respond to particular kinds of cases’.^[93]

1.71       In Roach v Electoral Commissioner, Gleeson CJ expressed reservations about an ‘uncritical translation of the concept of proportionality’ from jurisdictions with human rights instruments, into the Australian context.^[94] In Momcilovic, Heydon J suggested that the proportionality test in the Victorian Charter created ‘difficult tasks’ that should be for legislatures, not judges.^[95] However, these concerns may not arise if the proportionality analysis is being applied by law makers and others to test the merits of proposed laws, rather than by courts testing existing laws against constitutional rights.

1.72       Other criticisms of proportionality may apply not only to the use of the concept by courts, but also more broadly. The use of proportionality in the constitutional law of other countries has its critics.^[96] Some have suggested that proportionality tests give insufficient weight to rights, or call for the comparison of incommensurable values. Proportionality has even been called an ‘assault on human rights’.^[97] To balance rights may be to ‘miss the distinctive moral status that a rights claim presupposes and affirms’.^[98] Far from rights being ‘trumps’,^[99] a balancing approach might suggest that everything is ‘up for grabs’.^[100]

1.73       Nevertheless, in submissions to this Inquiry, a number of stakeholders said that proportionality was the appropriate concept to apply.^[101] For example, the Law Council of Australia submitted that the proportionality test in R v Oakes ‘has been applied in Australian domestic law and can produce logical and predictable outcomes when applied to legislation’.

‘Proportionality’ is… a fluid test which requires those analysing and applying law and policy to have regard to the surrounding circumstances, including recent developments in the law, current political and policy challenges and contemporary public interest considerations.^[102]

1.74       In its submission to this Inquiry, the Human Rights Law Centre stated:

the test for determining whether a restriction is appropriate should be one of proportionality as used in international and comparative human rights jurisprudence and under the Charter of Human Rights and Responsibilities Act 2006 (Vic). … A proportionality test is appropriate as it preserves rights, provides a framework for balancing competing rights and enables other important public concerns, such as national security and public order, to be duly taken into account. ^[103]

1.75       In this Inquiry, the ALRC does not consider the question of whether testing the proportionality of laws that limit rights is better carried out by the judiciary or the legislature. Nor is it necessary, in this Inquiry, to find a perfect method—if such a method exists—for testing the justification of laws that limit rights. Whether a particular law that limits a right is justified will of course sometimes be a question about which reasonable people acting in good faith disagree. A rigid insistence on a prescribed proportionality framework may also discourage more thorough and wide ranging analysis.

1.76       While the ALRC does not propose that one particular formulation must always be used to test the justification of laws that limit traditional rights and freedoms, proportionality tests offer a valuable way of structuring the critical analysis. It calls for a considerable degree of rigour, and is clearly more thorough than mere unsupported statements that a law is justified because it is in the public interest. Proportionality is also widely used in many other countries and jurisdictions. When considering similar laws in Australia, law makers will naturally find these other analyses instructive. Importantly, the use of proportionality tests suggests that important rights and freedoms should only be interfered with reluctantly—when truly necessary.

Scrutiny processes

1.77       A law that limits important rights may be said to be justified in another sense, namely, that it was made following open and robust scrutiny. A law that limits a right might therefore be said to be justified procedurally, if the law was made after a procedure that thoroughly tested whether the limit was substantively justified. A quite fundamental procedural justification for laws might be, for example, that the law was made by a democratically elected Parliament in a country with a free press. Another important process is scrutiny by parliamentary committees.

1.78       Rigorous processes for scrutinising laws for compatibility with traditional rights may be more important in jurisdictions without a constitutional bill of rights. So called ‘political rights review’ or ‘legislative rights review’, Professor Janet Hiebert has written,

entails new responsibilities and new incentives for public and political officials to assess proposed legislation in terms of its compatibility with protected rights. This innovation results in multiple sites for non-judicial rights review (government, the public service, and parliament), which distinguish this model from the American-inspired approach that relies almost exclusively on judicial review for judgments about rights.^[104]

1.79       In Chapter 2, the ALRC discusses some procedural protections of traditional rights in more detail, with a particular focus on scrutiny by parliamentary committees—and the tests used in those scrutiny processes.

1.80       In Australia, proposed laws are checked for compatibility with traditional rights at a number of stages in the law making process. For example, when developing policy, government departments are encouraged to think about the effect a proposed law will have on fundamental rights. Bills and disallowable legislative instruments presented to Parliament must have a ‘statement of compatibility’ that assesses the legislation’s compatibility with the rights and freedoms in seven international human rights instruments (which include most of the traditional rights and freedoms in the ALRC’s Terms of Reference). The Attorney-General’s Department plays an important role in providing advice about human rights law and often assists agencies prepare statements of compatibility and explanatory memoranda.^[105]

1.81       Law reform bodies such as the ALRC also routinely consider rights and freedoms in their work. Under the Australian Law Reform Commission Act 1996 (Cth), the ALRC has a duty to ensure that the laws, proposals and recommendations it reviews, considers or makes:

(a)     do not trespass unduly on personal rights and liberties or make the rights and liberties of citizens unduly dependent on administrative, rather than judicial, decisions; and

(b)     are, as far as practicable, consistent with Australia’s international obligations that are relevant to the matter.^[106]

1.82       The Office of Parliamentary Counsel will also consider common law rights and freedoms when drafting legislation, and may question departments about proposed laws that appear to unduly interfere with rights.

1.83       There are multiple parliamentary committees that review legislation, and three committees have a particular role in considering whether proposed laws are compatible with basic rights: the Senate Standing Committee for the Scrutiny of Bills, the Senate Standing Committee on Regulations and Ordinances, and the Parliamentary Joint Committee on Human Rights.

1.84       Because of the close relationship between many traditional common law rights and many human rights protected by international covenants and instruments, an important role is also played by the Australian Human Rights Commission. The Commission, established in 1986, and its predecessor, the Human Rights and Equal Opportunity Commission, established in 1981, have as their purpose, working

for the progressive implementation of designated international conventions and declarations through representations to the Federal Parliament and the executive, through other public awareness activities, and where appropriate through intervention in judicial proceedings.^[107]

1.85       No less importantly, laws are often scrutinised by the public and in the press.

1.86       Clearly, there are already many processes for testing the compatibility of proposed laws with important rights and freedoms. Some are relatively new, such as the Parliamentary Joint Committee on Human Rights, established in 2011. Some are much older, like the Senate Standing Committee on Regulations and Ordinances, established in 1932. In Chapter 2, the ALRC considers whether some of these existing procedures might be improved. For example, the ALRC considers whether the justifications given to parliamentary committees and in compatibility statements are generally adequate, or could be made more thorough and the reasoning more explicit.

Laws that may merit further review

1.87       Throughout this paper, the ALRC highlights certain laws that may merit closer review. These are laws that have been criticised for unjustifiably limiting common law rights or principles. This report highlights some of these criticisms and some of the arguments that may be relevant to justification. However, for most of these laws, the ALRC would need more extensive consultation and evidence to justify making detailed recommendations for reform.^[108]

1.88       Therefore, rather than make detailed recommendations for reform based on insufficient evidence, the ALRC has highlighted laws that seem to merit further review. These laws are identified in the conclusion to each chapter. The highlighted laws have been selected following consideration of a number of factors, including whether the law has been criticised in submissions or other literature for unjustifiably limiting one or more of the relevant rights and whether the law has recently been thoroughly reviewed. Laws that may be criticised for reasons other than interference with rights, for example because they do not achieve their objective, are not highlighted for that reason alone. The fact that a law limits multiple rights has also sometimes suggested the need for further review.^[109]

1.89       The ALRC calls for submissions on which laws that limit traditional rights deserve further review.