The common law
4.13 Freedom of speech has been characterised as one of the ‘fundamental values protected by the common law’.[5] Heydon J has observed that ‘there are many common law rights of free speech’ in the sense that the common law recognises a ‘negative theory of rights’ under which rights are marked out by ‘gaps in the …
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Read moreLaws that interfere with freedom of speech
4.67 A wide range of Commonwealth laws may be seen as interfering with freedom of speech and expression, broadly conceived. Commonwealth laws prohibit, or render unlawful, speech or expression in many different contexts and include:criminal laws;secrecy laws;privilege and contempt laws;anti-discrimination laws;media, broadcasting and telecommunications laws;information laws; andintellectual property laws.[76]4.68 Some of these laws impose limits …
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Read moreCommon law foundations
2.2 The rights, freedoms and privileges set out in the Terms of Reference have a long and distinguished heritage. Many have been recognised in Australia, England and other common law countries for centuries. They form part of the history of the common law, embodying key moments in constitutional history, such as the sealing of the …
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Read more40 years of law reform—is the flame still burning?*
* This article draws from earlier articles that appeared in the ALRC’s Annual Reports of 1975, 1999–2000, and 2004–05 and the 2015 Michael Kirby lecture by Professor Rosalind Croucher AM.Institutional anniversaries, particularly those where significant longevity is involved, provide a time to reflect on the legacy of an organisation and to interrogate its ongoing role …
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Read moreGetting to Grips with Encroachments on Freedoms in Commonwealth Laws
Professor Rosalind Croucher AM,* President, Australian Law Reform Commission, to the Australian Academy of Law, Sydney, 27 October 2015 AAL President, the Hon Kevin Lindgren AM, thank you for allowing me to speak about the ALRC’s current inquiry, that we call the ‘freedoms inquiry’.I would like to begin my short talk this evening by acknowledging the traditional custodians …
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Read moreAdvocacy through law reform
Moot Court Bench—Coffee Hour Seminar, Professor Rosalind Croucher AM*, President, Australian Law Reform Commission, Jackson McDonald, Perth, 29 September 2015.IntroductionThank you Dr David Cox, both as Chair of the Law Reform Commission of Western Australia and as a partner of Jackson McDonald, for hosting today’s seminar.Thank you to Lorraine Finlay, Director of Mooting, Murdoch University …
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Read moreA common law principle
18.1 Judicial review is about setting the boundaries of government power.[1] It is about ensuring government officials obey the law and act within their prescribed powers.[2] Access to the courts for the purpose of judicial review is an important common law right. Sir William Wade stated that ‘to exempt a public authority from the jurisdiction …
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Read moreLaws that restrict access to the courts
18.13 Restrictions on access to the courts arise in many forms. A common method of restricting access to the courts is to exclude a decision from review under the ADJR Act,[21] or restrict judicial review according to procedures under a particular legislative framework.[22]The most controversial method of restricting access to the courts is the inclusion …
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Read moreA common law principle
17.1 Immunity provisions in legislation can limit the legal protection given to important rights and freedoms. They may operate to allow some interference—usually by government agencies—with a person’s liberty, freedom of movement, bodily security, property, and other rights, and deny civil redress. Although sometimes necessary, laws that give immunity from civil liability and authorise what …
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Read moreExamples of laws that delegate legislative power
16.25 It is quite common for Commonwealth legislation to delegate to the executive the power to make certain laws. There are thousands of legislative instruments currently in force in Australia, covering a wide range of subject matter, including laws about food standards, fisheries, civil aviation, corporations, superannuation, taxation and migration, to name only a few …
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