Traditional Rights and Freedoms - Encroachments by Commonwealth Laws ALRC Report Released

The Australian Law Reform Commission (ALRC) released its interim paper yesterday (3 August 2015) on the Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and Privileges.

Terms of Reference

The Attorney-General, Senator the Hon George Brandis QC, asked the Australian Law Reform Commission to review identify and critically examine Commonwealth laws that encroach upon ‘traditional’ or ‘common law’ rights, freedoms and privileges.

Common Law Rights, Freedoms and Privileges

The ALRC’s Terms of Reference, which set out and limit the scope of the Inquiry, state that laws that encroach upon traditional rights, freedoms and privileges should be understood to refer to laws that do the following:

• interfere with freedom of religion (Chapter 3);
• interfere with freedom of association (Chapter 4);
• interfere with freedom of movement (Chapter 5);
• interfere with freedom of speech (Chapter 2);
• interfere with vested property rights (Chapter 6);
• retrospectively change legal rights and obligations (Chapter 7);
• create offences with retrospective application (Chapter 7); ·  alter criminal law practices based on the principle of a fair trial (Chapter 8);
• reverse or shift the burden of proof (Chapter 9);
• exclude the right to claim the privilege against self-incrimination (Chapter 10);
• abrogate client legal privilege (Chapter 11);
• apply strict or absolute liability to all physical elements of a criminal offence (Chapter 12);
• permit an appeal from an acquittal (Chapter 13);
• deny procedural fairness to persons affected by the exercise of public power (Chapter 14);
• inappropriately delegate legislative power to the executive (Chapter 15);
• authorise the commission of a tort (Chapter 16);
• disregard common law protection of personal reputation (Chapter 16);
• give executive immunities a wide application (Chapter 17);
• restrict access to the courts (Chapter 18); and
• interfere with any other similar legal right, freedom or privilege (Chapter 19).

The closing date for submissions to this Issues Paper was 27 February 2015.

Results from the Interim Paper

In the Interim Report, the ALRC discusses the source and rationale of these important common law rights, freedoms and privileges, and discusses how they have been protected by theConstitution, the Parliament and the courts. The Interim Report also provides an extensive survey of current Commonwealth laws that limit traditional rights, freedoms and privileges and considers how such laws may be justified.

In total, the interim report identifies over 186 respective Commonwealth laws which may breach common law rights, freedoms and privileges in 16 specific areas including:

• Scrutiny Mechanisms;
• Freedom of Speech;
• Freedom of Religion;
• Freedom of Association;
• Freedom of Movement;
• Property Rights;
• Retrospective Laws;
• Fair Trial;
• Burden of Proof;
•  Privilege Against Self-incrimination;
• Client Legal Privilege;
• Strict and Absolute Liability;
• Procedural Fairness;
• Delegating Legislative Power;
•  Immunity from Civil Liability; and
• Judicial Review.

The closing date for submissions for the interim paper is 21 September 2015. 

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ALRC Website - Issues Paper and Current Interim Paper