Encroachments on rights, freedoms and privileges

1.39       This Inquiry is not primarily about the history and source of common law rights and freedoms, nor about how the rights and freedoms are legally protected from statutory encroachment. Rather, the Inquiry is primarily about identifying Commonwealth laws that encroach upon traditional rights and freedoms, and determining whether these encroachments are properly justified.[30]

1.40       There is no doubt that laws often encroach on people’s rights. In Malika Holdings v Stretton (2001), McHugh J said that ‘nearly every session of Parliament produces laws which infringe the existing rights of individuals’. [31] Despite this, many common law rights and freedoms still represent an important ideal. Arguably, this is implicit in the Terms of Reference.

1.41       However, there may sometimes be good reasons to encroach on traditional rights and freedoms. For one thing, important rights often clash with each other, so that some important rights must necessarily give way, at least partly. Very few rights are considered absolute. International instruments that protect human rights commonly include provisions that set out, often in general terms, circumstances in which the relevant right may be limited.

1.42       This Issues Paper sets out some of the common justifications for encroaching on particular rights and freedoms, but also invites submissions addressing this topic.

1.43       Each chapter asks two questions. The first is directed at general principles or criteria that might be applied to help determine whether a law that encroaches on the right is justified. General justifications may be found in international instruments, but the ALRC hopes that in their submissions people will highlight other more specific justifications for encroaching on these rights. The answers to the first question in each chapter, when refined and consolidated, may provide a useful tool to test existing and future laws that encroach on rights and freedoms.

1.44       The second question that is raised in each chapter is directed at specific Commonwealth laws. The ALRC asks people to identify laws that unjustifiably encroach on each right and freedom, and to explain why these laws are not justified.

1.45       The ALRC will critically examine these laws and their justifications, as directed in our Terms of Reference. The general principles identified in answer to the first question will provide a useful guide.

1.46       The ALRC appreciates that many laws may be part of a broader regime, reflecting complex policy objectives, and therefore should not be examined in isolation.

1.47       As suggested above, the ALRC will focus on laws that unjustifiably encroach on common law rights, freedoms and privileges, and principally, those listed in the Terms of Reference.