Restoring whose balance?

Those of us who have more than a passing interest in freedoms and rights can be forgiven for some, albeit temporary, excitement at the prospect that the Federal government is sending a reference to the Australian Law Reform Commission on an aspect of our freedoms.

For an Australian government to give serious attention to issues of rights and freedoms is rare indeed, particularly a conservative one like the Abbott government. Federal Attorney General Senator George Brandis has asked the Australian Law Reform Commission to "identify where traditional rights, freedoms and privileges are necessarily compromised within the legal structure of the Commonwealth". Such a comprehensive review of legislation is, on the face of it, to be welcomed. As constitutional lawyer George Williams has been reported as saying, it is a good thing to go back and look at the laws on the statute books and identify any problems. However, as he also said, the big question will be what the government wants to fix in terms of these identified problems.

The terms of reference includes laws that shift the burden of proof and interfere with freedom of speech, religion and freedom of association and also those which extend criminal law, restrict access to the courts and "inappropriately delegate legislative power to the executive". However, there is also a specific focus on "commercial and corporate regulation, environmental regulation and workplace relations": policy areas of great political sensitivity and, at times, ideological warfare. Again, if the inquiry identifies laws in these areas which require attention because they are found to infringe on the 'rights, freedoms and privileges' of individuals, then the big question will be how the government will respond in addressing regulations which, while impinging on individual freedoms (at least those of certain individuals) are also likely to be there to protect others from economic, environmental or social harm. Getting the balance right in dealing with these conflicting demands will be critical.

For the proposed review of legislation to be comprehensive one wonders why the Attorney needs to frame it in terms of 'traditional' rights, freedoms and privileges. His list is not nearly as comprehensive as that included in the United Nations human rights treaties created some 65 years ago, and they have themselves become something of a tradition for many. 'Tradition' can be defined as being something that is "handed down from generation to generation" or a "long-established or inherited way of thinking or acting". One interpretation of the word 'traditional' could also be to refer to those rights and freedoms which have a special place by virtue of the common law, through the case law of the courts. This would seem to be what the Attorney has in mind but of course these have and do change over time. No one doubts the value of tradition but the term can be open to misuse, as we know in the area of cultural practice, and the nature and value of a tradition is very much in the 'eye of the beholder'.

The Attorney's chosen list of laws is essentially about how the Commonwealth government should stop acting in certain ways and says nothing about ensuring that the state acts to enable the exercise of other rights and freedoms: those especially needed by the vulnerable and marginalised who look to the state for protection, if not assistance. To apply the words of the UN High Commissioner for Human Rights, this inquiry's reference would seem to be all about freedom from the state rather than freedom through the state. When Senator Brandis refers in his media release that this inquiry is to 'restore the balance', one could be excused for thinking that he was about to have the Commission consider how we might give effect to all those rights Australia signed up to at the United Nations: be they civil and political or economic, social and cultural rights and whether found in legislation or not. However, this inquiry has a narrower focus and is about looking at Commonwealth laws to see how they might be obstructing certain civil and political rights with economic and social rights only raised in regard to regulations in the commercial, environmental and workplace areas.

Senator Brandis is to be congratulated for sending a reference to the ALRC for an inquiry that will serve to open up a discussion around certain 'traditional rights, freedoms and privileges'. However, such an inquiry must be broader and consider all rights and freedoms recognising those where the state has responsibilities to help individuals secure their rights and freedoms as well as those where the law may act to infringe rights or freedoms.

The Attorney's list of laws which "encroach upon traditional rights, freedoms and privileges" is a long and varied one and many of those listed are about the state 'getting out of the way' of individual's personal and commercial lives. As well, some references on the list call out for amendment such as those that "disregard common law protection of personal reputation". These should be extended to cover all laws impacting on privacy. One could be forgiven for thinking that the list has been compiled with an eye on those who find legal obstacles to their particular activities, perhaps the 'big end of town', rather than a broader inquiry into how legislation and executive incursions have adversely affected the individual rights and freedoms of all Australians.

The challenge for the government will, of course, come when it addresses the inquiry's findings in 2015. It may well find it more difficult politically to 'restore the balance', whatever the Attorney means by this, than is currently envisaged. For instance, a conservative government might find it ideologically appealing to call for the removal of regulations in relation to commercial, environmental or workplace activities while rationalising their removal in terms of enhancing freedoms or rights. Yet, such action is not without its risks and any perceived benefits will need to be carefully balanced against any potential harm to the individuals affected, to the social or physical environment as well as, politically, to the government itself. This is the real balance that should be concentrating the government's mind at that time.