Conclusions
3.186 Legislation prohibits, or renders unlawful, speech or expression in many different contexts. However, some of these provisions relate to limitations that have long been recognised by the common law itself, such as obscenity and sedition.3.187 Numerous Commonwealth laws may be seen as interfering with freedom of speech and expression. There are, for example, more …
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Read moreEfficacy of scrutiny and review mechanisms
Overlapping parliamentary scrutiny2.45 Since the establishment of the Human Rights Committee, the overwhelming majority of bills which have an impact on the rights, freedoms and privileges listed in the Terms of Reference have been subject to at least two separate streams of parliamentary committee review. Table 1 sets out the extent of overlap in the …
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Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and PrivilegesI, Senator the Hon George Brandis QC, Attorney-General of Australia, having regard to the rights, freedoms and privileges recognised by the common law,REFER to the Australian Law Reform Commission (ALRC) for inquiry and report pursuant to section 20(1) of the Australian Law Reform Commission …
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Read moreA common law right
3.1 Freedom of religion protects not only the freedom to observe or practise religious beliefs, but also the freedom not to observe or practise any religion or belief.[1] This chapter discusses the source and rationale for protecting freedom of religion; how this freedom is protected from statutory encroachment; and when laws that encroach on this …
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Read moreProtections from statutory encroachments
Australian Constitution3.10 Section 116 of the Australian Constitution provides:The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.[11]3.11 This provision …
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Read moreJustifications for encroachments
3.19 Like all freedoms, the freedom of religion is not absolute: ‘it is subject to powers and restrictions of government essential to the preservation of the community’.[26] As White J of the South Australian Supreme Court has stated: the common law has never purported to prevent the Parliament from asserting and exercising absolute right to …
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Read moreProtections from statutory encroachment
1.19 Subject to the Constitution, the Commonwealth Parliament—sovereign in Australia—generally has the power to make laws that encroach on common law rights, freedoms and privileges. Constraints on Parliament may be largely political, not legal.[13]1.20 Some argue that legislative powers should be limited, for example by enshrining in the Australian Constitution a bill of rights. Others …
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Download Questions in PDF2. Freedom of SpeechQuestion 2–1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified?Question 2–2 Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?3. Freedom of ReligionQuestion 3–1 What general …
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Read moreTerms of Reference
Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and PrivilegesI, Senator the Hon George Brandis QC, Attorney-General of Australia, having regard to the rights, freedoms and privileges recognised by the common law,REFER to the Australian Law Reform Commission (ALRC) for inquiry and report pursuant to section 20(1) of the Australian Law Reform Commission …
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Read moreAHRC Free Speech Conference 2014
Thursday 7 August 2014, Professor Rosalind Croucher President, Australian law Reform Commission [1] TextIntroduction[Acknowledgement of country—Gadigal and Guring-gai people of the Eora Nation.]I have been asked to speak today on the ALRC’s newest inquiry. The Attorney-General, Senator the Hon George Brandis QC, has presented us with a wonderful project. It has two main tasks.The first is to identify Commonwealth laws that …
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