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: • 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 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. (i) 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 Momcilovic v The Queen have led to legal uncertainty about the constitutionality of DOIs at the federal level. This poses a risk that a federal Human Rights Act could not validly include a provision empowering federal courts to make them. In light of this uncertainty, the Commission has considered a number of options to address potential constitutional concerns. It does not propose incorporating a formal DOI power for the courts to apply, and instead suggests an alternative approach. In the course of applying the interpretive clause in the Human Rights Act, a court may, as part of its reasoning process, indicate whether a statute can be interpreted in line with the Human Rights Act or whether the statute demonstrates a parliamentary intention to depart from Australia’s human rights obligations. If a court finds that it is not reasonably possible to interpret a statute in a way that is consistent with the Human Rights Act, this would usually be indicated in the reasons for judgment regardless of whether a ‘formal’ DOI power exists. FREE AND EQUAL A Human Rights Act for Australia 2022 25