principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. (c) Role of Parliament • Ability to override rights and freedoms The Australian Parliament routinely passes laws that are not human rights compliant and common law rights are routinely overridden by legislation – frequently without sufficient scrutiny or public debate. The scrutiny that may be undertaken is often not through the lens of a human rights proportionality analysis.80 In 2015, the Australian Law Reform Commission’s inquiry into Traditional Rights and Freedoms: Encroachments by Commonwealth Laws identified many laws that engage and potentially unjustifiably interfered with traditional common law rights, including freedom of speech, religion, movement, association and the right to fair trial.81 Professor George Williams conducted his own survey of laws in 2016, identifying 350 examples of laws that ‘arguably encroach upon rights and freedoms essential to the maintenance of a healthy democracy’.82 He found that executive power has rapidly increased since 9/11 and ‘since that time parliamentarians have been less willing to exercise self-restraint by not passing laws that undermine Australia’s democratic system’.83 After this case, prison policy in the UK was changed. Journalists are now allowed to interview prisoners so that they can help them investigate and challenge any miscarriages of justice. Meanwhile, O’Brien was released and exonerated of murder. Simms, however, was not. Sourced from: Amnesty International submission to Free & Equal Some opponents of stronger legal protections for human rights suggest that robust Parliamentary mechanisms provide sufficient protection.84 However this ignores political realities of lawmaking, and the role of all three branches of government in protecting human rights. Where Parliament makes laws for the mainstream voting public, socially excluded or under-represented groups may fall through the cracks in the law-making process.85 These groups also lack legal recourse if their rights are subsequently infringed.86 This point is discussed further in chapter 3.5. While, ideally, Parliamentarians would debate every law thoroughly, and pass the best possible laws, in reality, law making may often be a rushed and politicised process. Without human rights entrenched in Australia’s domestic law, Parliamentarians may overlook them in practice, leading to many laws on the books that are not human rights compliant. FREE AND EQUAL A Human Rights Act for Australia 2022 55