In addition to this clause, the Commission also proposes clarifying that courts cannot declare that Acts of Parliament are invalid on the ground that they are incompatible with human rights. However, a statutory instrument that is not compatible with human rights may be invalid if it goes beyond what is authorised by the empowering Act, read in accordance with the interpretive clause. (b) Limitations clause A limitations clause describes the circumstances in which human rights may be permissibly limited. Most human rights are not absolute, and circumstances may require that different rights be balanced against important public interests, and countervailing rights. For example, it may be necessary to balance the right to freedom of expression with the right to privacy; and the right to access information with national security interests. The Commission proposes an overarching limitations clause be included in the Human Rights Act. The limitations clause should be based on the ‘proportionality’ test that is strongly established in international law and applicable to human rights instruments. The wording of the limitations clause should serve a dual purpose of being a straightforward and complete legal test for the courts to apply, and a clear directive to public servants on how to conduct the limitations analysis in their day‑to‑day work. A clause of this kind should incorporate an overarching statement to the effect that the rights and freedoms contained in the Human Rights Act may be subject only to such reasonable limits as are prescribed by law and can be demonstrably justified in a free and democratic society. The Commission has not proposed a particular form of words for the limitations clause but has identified its important elements. When deciding whether a limit is reasonable and justifiable, the following factors are relevant: 62 • whether the limitation is in pursuit of a legitimate purpose • the relationship between the limitation and its purpose, including whether the limitation is necessary to achieve the legitimate purpose, and whether it adopts a means rationally connected to achieving that purpose • the extent of the interference with the human right • whether there are any less restrictive and reasonably available means to achieve the purpose • whether there are safeguards or controls over the means adopted to achieve the purpose. Additionally, the limitations clause should prescribe that absolute rights, such as freedom from torture and freedom from forced work, must not be subject to any limitations. The Commission further proposes that the limitations clause include examples that highlight the minimum core of certain ICESCR rights. This will signify that ICESCR rights should not be limited to such an extent as to encroach upon the minimum protection required by the right. (c) Notification to Parliament regarding incompatible laws State and territory Human Rights Acts provide that if a court cannot reasonably interpret a law in a manner that is consistent with human rights though applying the interpretive clause, the court has the power to issue a ‘declaration of incompatibility’ (DOI). DOIs are designed to notify Parliament that a law is considered incompatible with human rights, and trigger a process for Parliament to review the legislation. Parliament can choose whether or not to respond to the declaration. However, the High Court’s comments in the 2010 decision in Momcilovic v The Queen7 have led to legal uncertainty about the constitutionality of DOIs at the federal level. This poses a risk that a federal Human Rights FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights