Identifying laws that limit rights and freedoms

1.49       The central tasks of this Inquiry are to identify Commonwealth laws—not state and territory laws—that encroach upon traditional rights, freedoms and privileges, and to determine whether these encroachments are properly justified.[70] There is no doubt that laws often encroach on traditional rights and freedoms. In Malika Holdings v Stretton, McHugh J said that ‘nearly every session of Parliament produces laws which infringe the existing rights of individuals’.[71]

1.50       This report sets out many of the Commonwealth laws that may be said to interfere with the common law rights and freedoms listed in the Terms of Reference. It provides an extensive survey of such laws.[72]

1.51       The Terms of Reference ask the ALRC to include consideration of Commonwealth laws in the areas of commercial and corporate regulation, environmental regulation, and workplace relations. Such laws are highlighted throughout this report. However, the Terms of Reference are also clear that this Inquiry is not to be limited to these areas. This report is structured by the rights and freedoms in the Terms of Reference, but engages with commercial, environmental and workplace laws as they arise.

1.52       Having identified laws that affect traditional rights, it is vital to ask whether the laws are justified. The following section discusses justifications for limits on important rights and principles at a general level. More particular justifications are then discussed throughout this report.