2.51 The first of the tasks of this Inquiry is to identify Commonwealth laws—not state and territory laws—that encroach upon traditional rights, freedoms and privileges. 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’, although perhaps fewer encroach on the most important and fundamental of common law rights. 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, without making a judgment about the justification for them.
2.52 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. These laws are highlighted throughout this Report.
2.53 Having identified laws that affect traditional rights and freedoms, the second task was to ask whether the laws were appropriately justified. The following section discusses justifications for limits on important rights and principles at a general level—and particularly the framing principle of proportionality. More particular justifications are then discussed throughout the Report, in the context of the rights listed in the Terms of Reference.
See Terms of Reference.
Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290,  (McHugh J).
Although in this same passage, McHugh J also said that ‘times change’: ‘What is fundamental in one age or place may not be regarded as fundamental in another age or place… [C]are needs to be taken in declaring a principle to be fundamental’: Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290,  (McHugh J).
A list of all the statutory provisions cited in this report is included at Appendix A. Lists of certain laws that limit rights are also set out in G Williams, Submission 76; Institute of Public Affairs, Submission 49.
The Terms of Reference are also clear that this Inquiry is not to be limited to these areas.