Traditional rights, freedoms and privileges

1.1          The Australian Law Reform Commission has been asked to identify and critically examine Commonwealth laws that encroach upon ‘traditional’ or ‘common law’ rights, freedoms and privileges.[1]

1.2          What are traditional or common law rights, freedoms and privileges? The ALRC’s Terms of Reference,[2] which set out and limit the scope of this Inquiry, state that laws that encroach upon traditional rights, freedoms and privileges should be understood to refer to laws that do the following:

  • interfere with freedom of speech (Chapter 2);
  • interfere with freedom of religion (Chapter 3);
  • interfere with freedom of association (Chapter 4);
  • interfere with freedom of movement (Chapter 5);
  • interfere with vested property rights (Chapter 6);
  • retrospectively change legal rights and obligations (Chapter 7);
  • create offences with retrospective application (Chapter 7);
  • alter criminal law practices based on the principle of a fair trial (Chapter 8);
  • reverse or shift the burden of proof (Chapter 9);
  • exclude the right to claim the privilege against self-incrimination (Chapter 10);
  • abrogate client legal privilege (Chapter 11);
  • apply strict or absolute liability to all physical elements of a criminal offence (Chapter 12);
  • permit an appeal from an acquittal (Chapter 13);
  • deny procedural fairness to persons affected by the exercise of public power (Chapter 14);
  • inappropriately delegate legislative power to the executive (Chapter 15);
  • authorise the commission of a tort (Chapter 16);
  • disregard common law protection of personal reputation (Chapter 16);
  • give executive immunities a wide application (Chapter 17);
  • restrict access to the courts (Chapter 18); and
  • interfere with any other similar legal right, freedom or privilege (Chapter 19).[3]

1.3          The last item suggests the list is not exhaustive and leaves open the question of what is a traditional right, freedom or privilege. What rights, freedoms and privileges may be ‘similar’ to those on this list?

1.4          The list in the ALRC’s Terms of Reference appears to be drawn from similar lists of rights, freedoms, privileges and legal principles protected in Australian law by a principle of statutory construction known as the ‘principle of legality’. Before looking at this principle in more detail, it is worth noting how rights, freedoms and privileges are created and protected in Australian law.