08.12.2014

List of other rights, freedoms and privileges

19.3       Laws that encroach on common law rights, freedoms, privileges and principles may include laws that do the following:

  • abrogate the liberty of the individual and authorise detention;[3]
  • legislate contrary to the ‘rule of law’;[4]
  • abrogate freedom of assembly;[5]
  • authorise the fraudulent exercise of power;[6]
  • authorise the unreasonable exercise of power;[7]
  • interfere with the Court’s power to issue habeas corpus in respect of a person not lawfully detained;[8]
  • remove the right to refuse a blood test;[9]
  • interfere with the right to go about lawful business;[10]
  • limit the right to bring an action for mental injury;[11]
  • require the making of a statutory declaration;[12]
  • interfere with the right to bring a private prosecution;[13]
  • permit a court to extend the scope of a penal statute;[14]
  • limit trial by jury;[15]
  • vest in persons or bodies exercising executive power, the power to determine whether a person has committed a criminal offence;[16]
  • criminalise behaviour on the basis of subjective offensiveness;[17]
  • permit the use of information obtained by means of telephone interception;[18]
  • permit the administration of interrogatories in criminal proceedings;[19]
  • remove mistaken belief as a defence to a criminal charge;[20]
  • deprive a subject of a right to appeal against a sentence a court has no power to pass;[21]
  • infringe on open court and derogate from judicial due process;[22]
  • alter the standard procedure of a court once it has been invested with jurisdiction;[23]
  • require courts to take secret evidence in the absence of an affected party’s legal representatives;[24]
  • abrogate the principle of open justice;[25]
  • interfere with the course of justice;[26]
  • restrict right to continue action once action commenced;[27]
  • deny legal representation;[28]
  • deny the opportunity for a hearing before dismissal from office;[29]
  • require the compulsory production of documents;[30]
  • permit the disclosure of information compulsorily acquired;[31]
  • interfere with the liberty to carry on a business;[32]
  • interfere with the right to enter into a legal contract;[33]
  • interfere with native title;[34]
  • permit search for and seizure of property;[35]
  • restrict fishing in tidal waters;[36]
  • limit the power to dispose of an interest in a lease;[37] and
  • prevent subleasing of land.[38]

19.4       Some Commonwealth laws that encroach on these common law rights, freedoms, privileges and principles may be justified. The ALRC seeks submissions identifying those laws that are not justified, and explaining why the laws are not justified.