George Brandis was never going to get what he wanted from his 'freedoms' inquiry

When the Australian Law Reform Commission published its interim report on its “freedoms” inquiry, I wrote that the government was on the back foot. Attorney-General George Brandis had asked to be told about laws that “encroach upon traditional rights, freedoms and privileges”, and the commission obliged with a long list.

Brandis sat tight and waited for the final report, which was tabled last week. It was due to address whether any encroachment “is appropriately justified”. But the commission, quite understandably, said it wouldn’t be reporting on that question – for two reasons.

One is that however one assesses “appropriately justified”, it is a huge task that is well beyond the commission’s resources – or, realistically, those of anyone else. To audit every provision of every law that could, in some circumstances, “encroach upon traditional rights, freedoms and privileges”, and then to assess whether that encroachment, in those circumstances, is appropriately justified, having regard to how each provision is drafted, implemented and operate in practice?

What was Brandis thinking?

A term of reference it couldn’t meet

Another aspect of the terms of reference that was difficult to make sense of at the outset is that there is no definitive list of “traditional rights, freedoms and privileges” (more simply, “common law rights”). Brandis offered his own list, which was notable in omitting one of the most widely-recognised and valued common law rights: liberty.

And even if the task of reviewing “Commonwealth laws” was manageable, there is no established method for assessing whether their encroachment on a common law right is “justified”. The commission politely said so.

The commission had to make sense of how to assess whether an encroachment on common law right is “appropriately justified”. Two ways of dealing with the question are possible.

One is to treat “appropriately justified” as a legal question. Common law rights are creatures of the courts, identified and defined by judges in court decisions. That is why they are “common law” rights. They have never been formulated in precise terms or applied consistently or uniformly.

Although the High Court has, from time to time, identified and used common law rights that are encroached on by legislation, it has not yet agreed on a way of going to the next step: deciding when an encroachment is justified.

Most recently, in the McCloy challenge to the ban on property developers making political donations, the judges did not agree that the way to do it was to apply a test of “proportionality”.

A majority said that a ban on property developers making political donations is a justified limit on the freedom of political communication because it is a “proportionate means” of limiting the risk of corruption. But other judges either rejected the proportionality approach or expressed reservations about it.

So, treating the “appropriately justified” question as a legal one, Brandis was asking the commission to apply a test the High Court is still working out. The commission flagged proportionality as a possible approach, but declined to actually try it.

Another way of dealing with “appropriately justified” is to see it as a policy question. But that’s a political exercise the commission cannot be expected to engage in.

The government has already made clear its policy position that rights encroachments by some of its laws, such as those that deal with national security, are justified. The commission politely declined to buy into a political debate.

A risk Brandis ran – if the commission had made a call on whether particular encroachments on common law rights are justified – is that he would have lost. He had no way of knowing that the commission would not, for example, decide that rights-limiting measures in the government’s national security laws are unjustified, or that those in the previous government’s Fair Work Act are justified.

But the commission did not go down that path. The result is that it earnestly expended a lot of time, money and effort in pursuit of a goal that was never achievable. The commission has given Brandis a report that does all that it reasonably could, while falling well short of what it was asked to do.

It is unusual for a law reform body to be lumped with terms of reference that it cannot meet. Usually there is a process of discussion and agreement to find an accommodation between what the government wants and what the body can do.

In this case, the discussion must have happened after the event, to reach agreement that the commission would publish a report that says explicitly that it did not do as it was asked.

What now?

Brandis was trying to get the commission to make something out of nothing.

Determined not give international human rights standards a place in Australia, he tried to use the commission to give common law rights and freedoms a fixed meaning, to make them a workable substitute for human rights standards. To some extent, he succeeded in this.

First, there is a collection of common law rights that the courts have developed and do apply from time to time. The commission has given a thorough and thoughtful account of what, at the moment, they are.

Second, without an established legal test for identifying when encroachments on rights might be justified, the commission has given some suggestions – and they point principally towards proportionality.

But the commission has given the rest of the job back to Brandis. It is for him to decide whether and how to audit Commonwealth laws for justifiable encroachments on common law rights. If he is to dedicate departmental resources to this massive task, it is hard to see how can he sensibly do other than to cherry-pick, and scrutinise only the laws that encroach in ways – justifiably or not – he cares about.

However, what will Brandis do if told that the encroachments on common law rights by, for example, the government’s national security laws are unjustified?

A different option has already been flagged. It is in court that common law rights’ scope and effect – and the justifiability of any encroachment – will be determined. Brandis need only leave the commission’s report on the table, to be picked up and used as a primer for those who would challenge laws for their encroachment on common law rights.

This is already happening. Spurred on by the report, litigants have flagged an intention to challenge Section 18C of the Racial Discrimination Act on exactly the basis set out in the report. This may be the legacy of Brandis’ inquiry: more litigation and more High Court appeals, spurred on by the commission’s valiant attempt to make something out of nothing.