Legal Rights

Legal rights persistently undermined by parliament

The IPA’s latest report, the Legal Rights Audit 2016, was today featured in the legal affairs section of The Australian ($):

An audit of federal legislation has found that the erosion of fundamental rights by the nation’s politicians shows no sign of ending despite the expenditure of millions of dollars on publicly funded human rights agencies.

… “The extent to which legal rights are being eroded poses a significant threat to the rule of law in Australia,” the audit says.

… The growing erosion of legal rights is outlined in a report that calls for the repeal of all breaches of fundamental rights and urges politicians to show greater respect for the rule of law by refusing to pass bills that breach fundamental rights.”The research we have conducted shows the critical state of fundamental legal rights in Australia,” said Simon Breheny, the IPA’s director of policy who co-authored the report with Morgan Begg.

“It is of deep concern that the problem Australia faces when it comes to fundamental rights is getting worse and it does not seem as though there is any end in sight.”

… The report says fundamental legal rights are necessary to achieve justice within the legal system and act as a vital constraint on the coercive power of the state.On the burden of proof, it says difficulties experienced by prosecutors in proving the elements of an offence or civil remedy are an insufficient justification for reversing this right.

Mr Breheny said it was disappointing that nothing practical had been done to reverse the erosion of rights — despite an inquiry by the Australian Law Reform Commission and statements by Attorney-General George Brandis.

“It is deeply concerning that we have the apparatus of the state — in the form of the Australian Human Rights Commission — actually championing legal rights abuses rather than recommending changes to the law that would protect our fundamental freedoms,” he said.

“The best example of this is that the Human Rights Commission is basically set up to enforce anti-discrimination law rather than defending our fundamental freedoms.”

This could be seen from the fact that the Human Rights Commission strongly supports “speech-restricting provisions” such as section 18C of the Racial Discrimination Act. That provision makes it unlawful to offend, insult, humiliate or intimidate people because of their race, colour or national origin.

Mr Breheny noted that the Human Rights Commission also favoured a proposal from the previous federal Labor government that would have reversed the burden of proof in human rights and anti-discrimination law.

“That is just unforgivable, particularly when the problem, as our research has shown, is as significant as it is,” he said.

You can see the charts from the article here, and read the whole article here ($).


IPA research: The state of legal rights in Australia is getting worse


Great coverage ($) from Chris Merritt today in The Australian on new IPA research showing the declining state of fundamental legal rights in federal legislation passed in 2015:

The audit, by the Institute of Public Affairs, shows that federal statutes contain 290 provisions breaching legal rights, up from 262 the year before.

The attack on legal rights is ­focused on the privilege against self-incrimination where federal laws now contain 116 separate breaches of this privilege compared with 108 in 2014.

The fastest-growing category of breaches is laws that abrogate the right to silence.

The number of breaches of this right has more than doubled — up from 14 in 2014 to 33 last year.

“The long-term trend indicates that more legal rights are being breached over time,” said Simon Breheny, the IPA’s director of ­policy.

… While the Coalition government had raised expectations by commissioning an inquiry by the Australian Law Reform Commission into fundamental rights and freedoms, the government had not lived up to those expectations.

Mr Breheny believed regulators, bureaucrats and politicians still considered it legitimate to abrogate legal rights in the interests of regulatory goals.

“Over time, there has been an erosion of respect for the importance of common law rights and fundamental legal rights and this culture has led to a bureaucracy and political class that consistently undermines rights,” Mr Breheny said.

“Labor and Coalition governments are equally responsible and the failure of either side of politics to arrest this trend is deplorable.”

The IPA’s report, Legal rights audit 2015, can be accessed here.


Queensland’s proposed tree laws are the very worst kind of red tape


Today I have a piece in Queensland Country Life arguing the new proposed vegetation clearing laws in Queensland will halt economic growth, suppress entrepreneurship, and damage our international competitiveness.

The strict changes will also reverse the onus of proof, retrospectively enforce the laws back to 17 March 2016, and remove exemptions for clearing high value agricultural land.

This is the latest in a series of contentious political games between the left and right of politics, with farmers and land owners sitting in between:

Jointly understanding that clearing is necessary for growth, and that farmers have the incentive to protect and cultivate their own land, meant very few clearing controls prior to the 1990s.

However, as the 1990s came so too did the growth and spread of conservation campaigns. Legislation changes in 1999 and 2004 largely phased out broadscale land clearing by the end of 2006.

Thankfully, in 2013 the then Newman government relaxed the clearing laws. But now the Labor government, following through on an election promise, will take us back to the 2006-2013 era when almost no broadscale clearing occurred:

Of course the environment must be protected and conserved. But what happened to the importance of economic growth and development?

Effective agricultural regulation draws a reasonable line between environmental protection and agricultural production.

It is undeniable that efficient agricultural production requires the felling of trees. By entirely preventing such clearing—even for high value productivity land—policy makers have clearly lost sight of the real purpose of regulation.

The proposed bill has been referred to a state parliamentary committee, which is due to report in June this year.


Beware any government committed to “anti-discrimination”


Victoria’s Equality Minister Martin Foley


The Victorian state government is grandiosely committed to expanding anti-discrimination laws throughout the state, and is prepared to throw aside any freedom it sees to achieve it.

Prohibitions on peaceful speech and coercive powers to restrict religious liberty and freedom of association are all on the cards, as the government sets a course to ‘put equality back on the agenda in Victoria‘.

For this government, “equality” means special rights for some people, and diminished liberties for others. Doesn’t that sound a little discriminatory?

Just last week, the government gave its support to prohibitions on singing and displaying certain materials around particular favoured buildings. In this new age of anti-discrimination, the right to walk around certain buildings without seeing something disagreeable is paramount to freedom of speech.

Earlier this week, the Attorney-General not only failed to reject, but will consider extraordinary proposals from some “human rights” groups to give the state equal opportunity commission the power to conduct its own investigations, without first needing to receive a complaint. For some, equal opportunity laws are so essential that they must also be easy to enforce – so easy in fact, that the burden of proof is placed on the accused person to make their case, while also relieving that person of the right to silence.

That this did not immediately raise multiple flags with the first law officer of the Crown is worrying, to say the least.

The government’s view of religion and free association is also particularly concerning. Over the weekend, the state’s very own Minister for Equality, Martin Foley, “rubbished” the possibility of a religious exemption in legislation that would allow same-sex couples to adopt children. In ruling out the sort of exemptions other state’s provide, Foley said ‘let’s be clear: this is 2015’.

This, in conjunction with the Labor party’s commitment to make it next to impossible for private, faith-based schools to selectively employ people who share their values, sends a clear message: Freedom of speech, association and holding to a religious belief are a thing of the past, and rights to non-discrimination must now reign supreme.


Using “Royal Commission like powers” to attack your political enemies


The Queensland Labor government is launching an inquiry into political donations and the awarding of contracts – clearly and explicitly targeting the previous LNP government, which increased the donation declaration limit when it was in government.

This inquiry will be conducted by the Queensland Crime and Corruption Commission with “Royal Commission like powers”.

In other words, the sort of powers which would normally only be available to courts. In the Drum last year I argued that Royal Commissions were extraordinarily powerful, risked legal rights and eliminated traditional common law protections.

The Palaszczuk government’s use of the Crime and Corruption Commission to go after the previous government’s affairs is nakedly political. It’s also a sign that the precedent being set at the Commonwealth level – which has seen two Labor prime ministers and a serving opposition leader made to appear in front of Royal Commissions in the last two years – is leading us down a tit-for-tat path.

Royal Commissions – and Royal Commission like powers – should be used sparingly. They should only be used where the normal law enforcement systems have obviously failed, and no possible policy or enforcement solution is possible.

Royal Commissions are declarations that our institutions have failed. They should never, ever be used for party politics.


Foreign companies: Australia ranks just ahead of China in rule of law problems


Reported in The Australian today are results from a recent survey into foreign investment and the rule of law. It showed that, of 301 major companies surveyed, foreign companies ranked Australia just behind the People’s Republic of China and ahead of Bangladesh, in terms of countries that post the biggest rule of law problems:

Hogan Lovells partner Tim Lester said the survey found that, on the whole, Australia was still regarded as a relatively stable environment for foreign direct investment, but it also revealed a level of concern about the rule of law. Of the 301 companies covered by the survey, 119 had investments in Australia and all but 3 per cent of those companies had experienced issues with the rule of law in this country in the past five years.

“Of the companies that have experienced significant rule-of-law issues, 20 incidents have been recorded in Australia in the past five years and that is a worrying signal to policymakers and thought needs to be given to how we address that,” Mr Lester said.

Astonishingly, this survey was conducted before the most recent efforts of state governments to abandon the rule of law:

It was completed well ahead of the Victorian government’s ­decision to cancel a contract with an international road construction company over Melbourne’s East-West Link, and it did not ­include the decision of the West Australian government to give ­itself more favourable treatment than other creditors awaiting payouts from the litigation over the collapse of the Bell Group.

Mr Lester was unsure whether the report took account of last year’s decision by the NSW government to expropriate mining exploration licences and intellectual property of mining companies without compensation.

“It does not take into account the very recent developments and that is of particular concern ­because the incidents that have not been taken into account in many respects are more worrying than what has happened in the past,” he said. “They are illustrative of a growing perception about rule-of-law issues in this country.

These results confirm the findings of the IPA’s audit of Commonwealth legislation conducted last year by myself and Simon Breheny. In it, we found that the economic and financial sectors are, more than any other sector, subject to the most provisions undermining the rule of law by stripping away traditional legal rights, such as the right to silence or the principles of natural justice.

legal rights breaches per sector


Malcolm Turnbull cites the IPA at the Sydney Institute


In his interesting speech to the Sydney Institute last night, the Minister for Communication Malcolm Turnbull referred to the IPA’s 2014 report into legal rights breaches in Commonwealth legislation:

It is important to remember that people and societies with an equal determination to defeat terrorism can have different views on what is the right balance and, indeed, what the right measures are.

Denouncing those who question the effectiveness of new national security measures as “friends of terrorists” is as stupid as describing those who advocate them as “proto-fascists.”

And this debate is not an easy left/right divide. One of the most consistent and cogent critics of our Government’s legislation on many national security topics including data retention and citizenship has been the Institute of Public Affairs. Their recent catalogue of the hundreds of Commonwealth laws which qualify or overrule traditional legal rights is sobering reading.

Mr Turnbull’s speech can be read at his website here. The IPA’s report: ‘The state of fundamental legal rights in Australia’ by Simon Breheny and myself, can be accessed here.



Legal rights report featured on Sky News Business


My colleague Simon Breheny appeared on Sky News Business last week to discuss our audit into commonwealth legislation, which found at least 262 breaches of fundamental legal rights, including the presumption of innocence, principles of natural justice, the right to silence and the privilege against self-incrimination.

See the interview here.

For more, check out the IPA’s December 2014 report by Simon and myself: The state of fundamental legal rights in Australia: An audit of federal law.


Laws undermining right to silence should be repealed

john eades

John Eades

Excellent comments yesterday from the NSW Law Society president, John Eades, on 2013 state laws which restrict a persons right to silence:

Controversial legal changes in New South Wales watering down a suspect’s “right to silence” – billed at the time as necessary to combat drive-by shootings – have never been used by prosecutors in the two years since they passed, the office of the director of public prosecutions has revealed.

The 2013 changes, allowing juries to draw an adverse finding if a defendant withholds information from police they later rely on during trial, was an “attack on fundamental rights” and should be rolled back, [Eades] said.

“It is an essential tenet of the criminal justice system that the prosecution has to prove its case beyond reasonable doubt. It is not the responsibility of the accused to prove his or her innocence,” he said.

“The amendment is clearly unfair and unworkable and the NSW government should now consider its removal.”

Laws such as these show that, like the Commonwealth, the states are not immune from passing legislation which undermines fundamental legal rights, such as the right to silence.

In light of the fact that these laws have not – yet – been utilised, the government should take a principled stand and restore the right to silence.


ICAC should be abolished


The Independent Commission Against Corruption (ICAC) should be abolished, according to Simon Breheny, Director of the Legal Rights Project at free market think tank the Institute of Public Affairs.

In an opinion article in today’s edition of The Australian, Mr Breheny calls for ICAC to be abolished after the body demanded even more coercive powers, calling ICAC “Australia’s biggest kangaroo court.”

Last week, the High Court of Australia found that ICAC lacked the power to investigate Margaret Cunneen, the Deputy Senior Crown Prosecutor, for allegedly counselling another person on how to avoid taking a breath test.

In response, ICAC has called on the Baird government for an extension of its powers.

“This is a ridiculous campaign by ICAC, and Premier Baird should ignore it,” says Mr Breheny.

“ICAC’s powers already breach some of our most fundamental legal rights. For example, it can force witnesses to answer questions, removing the right to silence. Expanding its powers is turning away from 800 years of common law.”

“If ICAC cannot catch people while adhering to the law, then the problem is not the law – the problem is ICAC.”

“ICAC’s demand for more power is desperate and illegitimate. ICAC should be abolished and investigation of corrupt conduct should be investigated by the police and prosecuted in criminal courts,” says Mr Breheny.

For media and comment: Simon Breheny, Director, Legal Rights Project, [email protected] or 0400 967 382


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