Joseph Craig
Last week, the Australian Law Reform Commission president, Rosalind Croucher, urged Australian lawyers to be vigilant on how governments justify laws that trespass on traditional rights and freedoms. According to the ALRC president, examining laws and how they relate to traditional rights and freedoms is necessary for all lawyers.
“Right-mindedness should be the mental state and standard vocabulary of all Australian lawyers,” said Professor Rosalind Croucher while delivering the 2016 Mayo Lecture that occurred last week.
Professor Croucher seemed to underline the word ‘right-mindedness’ while speaking at the event that focused on Encroachments of Commonwealth Laws Inquiry regarding Traditional Rights and Freedoms.
“Right-mindedness may be seen as scrutiny of laws for compatibility with rights,” said Professor Croucher.
“Lawyers should be ready to ask questions about limitations on rights and make it part of their daily practice,” Professor Croucher said.
The Freedoms Inquiry concluded that the best way to critically scrutinise the justification of these laws was through the proportionality test, among other tests.
Professor Croucher advocated for proportionality test saying that it was extremely valuable and useful for law reform academics, judicial officers, and lawmakers. She added that proportionality tests were clearly more effective than unsupported statements, although the ALRC report didn’t suggest that one particular method was enough to justify laws that go against traditional rights and freedoms. The Professor believes that the proportionality tests call for a considerable level of rigour.
The most important and advantageous thing about the proportionality test is that it advises legal bodies to be reluctant on encroaching the fundamental rights and freedoms. The rights and freedoms can only be interfered with if there is no other considerable alternative.
The event was described as one of ALR’s broadest ever enquiries. Earlier this year, the government released the final Freedoms Report. The report was made following the government’s creation of the Freedoms Inquiry Commission back in 2014. The commission was created to identify and critically examine the Commonwealth laws that trespass traditional privileges, freedoms, and rights.
In her speech, Professor Croucher explained the strong relationship between the powers of the executive and the judiciary, through the notion of the supremacy of parliament and the principle of legality.
Professor Croucher said that the relationship between the two bodies was very philosophical on many levels given that it portrayed a broader reference.
She added that the report came in at the right time when the democratic societies needed the protection of their traditional rights and freedoms.
The president expressed her feelings on the report saying that she believed it was a historic document. In addition, the professor said that the report set history because it will be useful to parliaments and governments in the future.
“The Australian lawyers, through statutory interpretation, play a role in protecting traditional rights and freedoms by reading down laws to minimise possible encroachments,” said Professor Croucher.
She concluded that the protection which the Commonwealth laws deserves in order to preserve traditional rights is at a very critical level embedded within the law of statutory interpretation.
