Spencer Zifcak. Human rights inquiry and a Charter of Rights!

Oct 5, 2015

Tony Abbott and George Brandis always used strong rhetoric about the necessity to protect Australians’ traditional rights and freedoms. The reality under the Abbott government, however, was different. The rights of minority racial, religious, ethnic, refugee and environmental groups were relentlessly pared back. Those who stood up for human rights, like the President of the Australian Human Rights Commission, Gillian Triggs, and various UN Human Rights Rapporteurs, were shot when they conveyed their critical message.

Nevertheless, it may yet be that the former Prime Minister and his Attorney-General will deliver to Australians a profoundly beneficial legacy with respect to human rights. That legacy looks like it will come in the form of the Australian Law Reform Commission’s (ALRC) current inquiry into the review of Commonwealth laws for their consistency with traditional rights, freedoms and privileges.

Early in his term, Senator Brandis asked the ALRC to do two things. First, to identify Commonwealth laws that encroach upon traditional rights and freedoms and, secondly, to critically examine those laws to determine whether the encroachments identified could be justified. In the terms of reference, Brandis provided a very broad definition of such traditional freedoms.

The ALRC has assumed this remit conscientiously, intelligently and energetically. In a recent interim report, which runs to 515 pages, it has identified hundreds of statutory provisions that may trespass upon traditional common law rights. The Commission is now calling for submissions to assist it in determining whether and to what extent these laws are justifiable.

The nature and extent of legislative provisions that may be in breach of fundamental rights and freedoms will come a shock to anyone who cares to delve into the ALRC’s recent report. No report in recent decades has come close to providing such a detailed enumeration, description and analysis of statutory infringements of rights. Take freedom of speech and procedural fairness as examples.

Commonwealth laws that may prohibit or restrict freedom of speech have been identified in criminal laws, secrecy laws, contempt laws, media and telecommunications laws, intellectual property laws, information laws and anti-discrimination laws. Not all of these laws will be unjustified but, equally, the ALRC has distinguished many that are likely to be.

These include provisions in the Crimes Act, Aboriginal and Torres Strait Islander Act, Aged Care Act, Anti-Money Laundering and Counter-Terrorism Financing Act, Australian Securities and Investments Commission Act, the Australian Intelligence Organisations Act and the recent Australian Border Force Act.

Two recent cases illustrate free speech problems graphically. S.35P(1) of the ASIO Act provides that a person commits an offence if the person discloses information and the information relates to a ‘special intelligence operation.’ A special intelligence operation is defined as one established to carry out a special intelligence function that may involve an ASIO officer in the commission of a criminal or civil wrong. The penalty for the unauthorised disclosure of such information is five years imprisonment.

This provision could slam the door on investigative journalism. All the government will need to do to stop a journalistic investigation with respect to security and intelligence is to warn media organizations that that such an investigation may relate to a ‘special intelligence operation’. Journalists are unlikely to court the possibility of gaol by writing further about their inquiries once such a caution has been issued.

Pursuant to the recent Australian Border Force Act 2015, it is an offence for an ‘entrusted person’ to disclose information obtained by that person in the person’s capacity as an entrusted person. An entrusted person is defined to include Immigration and Border Protection Department workers. These workers can include external consultants, contractors or service providers such as doctors and welfare workers performing work by contract for the Department. Any person employed by an entrusted person will also be covered.

The first people to find themselves silenced under this law will be those who work in Australia’s regional processing centres on Nauru and Manus Island. The law will reach far beyond this, however, muting every person involved in the provision of refugee legal, counselling and welfare services if their non-government employer is in receipt of government funding. This may be so even if the disclosure of the information would cause no harm to the public interest.

Statutory encroachment upon the right to procedural fairness constitutes another hugely important class of potential rights violations. Procedural fairness is the entitlement that every person whose rights are adversely affected by a government decision has to contest the decision before an independent and impartial court or tribunal. Procedural fairness has not infrequently been denied in the spheres of corporate and commercial regulation, national security legislation and migration law. In recent years, there has been tidal wave of denials of procedural fairness in the latter category.

There are four key areas of concern in relation to migration. These relate to the mandatory cancellation of visas (on character, security grounds or other grounds); the new ‘fast-track’ process for assessing applications for refugee status; changes to the Maritime Powers Act (the legislation which authorises boat turn-backs); and ASIO assessments in relation to refugees and non-citizens. In each, many former rights to procedural fairness have been swept away.

So, for example, under the new fast-track procedure for assessing refugee status, immigration officers make initial decisions on refugee applications after asking asylum seekers a very limited number of standardised questions. Then, the Minister may (but need not) refer the officer’s decision to a newly constituted Immigration Assessment Authority (IAA).

The IAA, however, can conduct its review without interviewing the applicant or conducting a hearing; without allowing an applicant to comment on adverse information or the reasons for the decision; without providing an applicant with any documents relied upon at the officer’s initial examination; and without considering any new information or evidence at the request of the applicant. In other words, procedural fairness has been rendered entirely nugatory.

The ALRC has done remarkable work in identifying a plenitude of similar instances. It is already apparent from that work that Australia’s protection of traditional rights and freedoms can be characterized as piecemeal and haphazard. If it stays the course, the Commission’s final report is likely to stand as the most comprehensive analysis yet undertaken of the state of rights and freedoms in Australia.

Given the numerous examples of statutory infringements of rights and freedoms that are likely to be identified, it may be time seriously to consider the most comprehensive and sensible solution to this mishmash: that is, the parliamentary enactment of an Australian Charter of Rights.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and a former President of Liberty Victoria


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