Australian Law Reform Commission releases report on rights and freedoms
March 2, 2016
BY Kevin Zakreski
The Australian Law Reform Commission has just published its report on Traditional Rights and Freedoms—Encroachments by Commonwealth Laws. The report identifies rights, freedoms, and privileges recognized by the common law, examines commonwealth (federal) laws that may infringe them, and considers potential approaches to restricting rights and freedoms. The report’s goals are summarized in the following terms in the ALRC’s press release:
In this far-reaching inquiry, the Australian Law Reform Commission was asked to identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges recognised by the common law. In the final Report, the ALRC discusses the source and rationale of these important rights and freedoms and provides an extensive survey of current Commonwealth laws that limit them. The ALRC has identified a range of Commonwealth laws that may warrant further consideration or review, providing a road map for future work to ensure that encroachments on rights, freedoms and privileges are avoided or appropriately justified.
Additionally, the Report provides a thorough analysis of how laws are scrutinised by government agencies, parliamentary committees and others for compatibility with rights, and examines possible justifications for statutory restrictions of common law rights and freedoms. It discusses how laws that limit traditional rights and freedoms might be critically tested and justified, for example by using a proportionality test. Rights are rarely absolute, but must be balanced with other rights and with the public interest when these interests conflict.
The report’s analysis was “structured to include the following elements with respect to each right, freedom or privilege”:
- an analysis of the source and rationale of the right;
- an overview of how the right is protected from statutory encroachment by the Constitution, the principle of legality, and international law;
- a general discussion of how limits on the right might be justified;
- an extensive survey of current Commonwealth laws that may limit the right; and
- a discussion of the justifications for some of these laws, with some laws being identified as possibly unjustified and therefore deserving further review.
In analyzing encroachments of the traditional rights, freedoms, and privileges, the ALRC was specifically directed “to consider, among other areas of law, commercial and corporate regulation, environmental regulation, and workplace relations.”
The report is the product of a lengthy inquiry. It was preceded by an issues paper and an interim report, and considered 151 public submissions from individuals and inquiries. The full report and a summary version are both available for free download on the ALRC project webpage.
