Rights and freedoms in Commonwealth laws – Issues Paper

The Australian Law Reform Commission (ALRC) today released an Issues Paper, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (IP 46), and has called for submissions from the public.

The Freedoms Inquiry is a review of Commonwealth legislation for consistency with traditional rights, freedoms and privileges.  These may be seen as fundamental freedoms in modern society, such as freedom of speech, of religion, of movement and association; and rights or privileges such as client legal privilege, the right to a fair trial, and access to the courts, to name a few. The Terms of Reference list 19 such rights, freedoms and privileges.

The Attorney-General has asked the ALRC to identify provisions in Commonwealth laws that encroach upon these traditional rights, freedoms and privileges, and critically examine these laws to determine whether the encroachment is justified.

ALRC President Professor Rosalind Croucher, Commissioner-in-charge of the Inquiry said, “Rights and freedoms are rarely absolute and will sometimes conflict with each other. This inquiry raises difficult questions of how fundamental rights and freedoms should be balanced in liberal democracies.  It is a great challenge, but it also an area in which the ALRC has considerable recent experience—freedom of speech, for example, was an important consideration in recent ALRC inquiries into privacy law, copyright, classification and censorship, and secrecy laws.”

The Issues Paper provides a brief explanation of each of the rights, freedoms and privileges listed in the Terms of Reference, their origin and rationale, and how they are protected from statutory encroachment. For each one the ALRC asks the question: What criteria or principles should be used for determining when encroachment is justified? The Issues Paper also invites people to identify Commonwealth laws that unjustifiably encroach on traditional rights and freedoms, and to explain why the laws are not justified.

The ALRC has been asked to consider commercial and corporate regulation, environmental regulation and workplace relations, but the inquiry is not limited to these areas.

The ALRC invites individuals and organisations to make submissions in response to specific questions, or to any of the background material and analysis contained in the Issues Paper.

The Issues Paper is available free of charge on the ALRC website at  www.alrc.gov.au/publications/traditional-rights-freedoms-ip46 and as an ebook.

The ALRC prefers submissions via the ALRC online submission form: www.alrc.gov.au/content/freedoms-ip46-submission

Submissions are due to the ALRC on 27 February 2015.

The ALRC plans to release a Discussion Paper in July 2015 and will provide its final report to the Attorney-General in December 2015.  Subscribe to the Freedoms Inquiry e-news on the ALRC website.