The Freedoms Inquiry
1 The Australian Law Reform Commission was asked to identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges recognised by the common law. The ALRC referred to this large and challenging project as the ‘Freedoms Inquiry’.2 In the Report, the ALRC discusses the source and rationale of many important rights …
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Read moreTerms of Reference
Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and PrivilegesI, Senator the Hon George Brandis QC, Attorney-General of Australia, having regard to the rights, freedoms and privileges recognised by the common law,REFER to the Australian Law Reform Commission (ALRC) for inquiry and report pursuant to section 20(1) of the Australian Law Reform Commission …
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Read moreJustifications for encroachment
12.38 Legal professional privilege is the common law’s way of resolving competing public interests: the public interest in the administration of justice, and the public interest in having all relevant evidence before the courts, in the interests of a fair trial.[51]12.39 In Esso Australia Resources v Commissioner of Taxation, the High Court noted the ‘obvious …
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Read moreJustifications for excluding the privilege against self-incrimination
11.43 The right to claim the privilege against self-incrimination is not absolute and may be removed or diminished by statute.[64] In Hamilton v Oades, the High Court held thatit is well established that Parliament is able to interfere with established common law protections, including the right to refuse to answer questions, the answers to which …
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Read moreApproaches to immunities
11.112 The privilege against self-incrimination is abrogated in a wide range of Commonwealth laws. Some of these laws provide use immunity and some derivative use immunity, and there is no consistent approach.[155] The laws administered by four of the Commonwealth’s most active and powerful agencies—ACC, ACCC, ASIC and ASIO—contain use immunity only, while tax laws …
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Read moreRight to obtain and adduce evidence and confront witnesses
8.84 A person’s right to defend themself against a criminal charge includes the right to cross-examine the prosecution’s witnesses and to obtain and adduce other evidence in support of their defence. Disclosure of evidence also serves the proper administration of justice. The High Court has spoken of ‘the desirability, in the interests of justice, of …
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Read moreJustifying limits on rights and freedoms
2.54 Laws that interfere with traditional rights and freedoms are sometimes considered necessary for many reasons—such as public order, national security, public health and safety. The mere fact of interference will rarely be sufficient ground for criticism.2.55 Important rights often clash with each other, so that some must necessarily give way, at least partly, to …
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Read moreThe Freedoms Inquiry
1.1 The Australian Law Reform Commission was asked to identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges recognised by the common law. The ALRC referred to this large and challenging project as the ‘Freedoms Inquiry’.1.2 In the Report, the ALRC discusses the source and rationale of many important rights …
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Read moreSummary
3.1 Existing and proposed laws are scrutinised for compatibility with rights and principles, including the traditional rights and freedoms identified in the Terms of Reference for this Inquiry, at a number of stages and by a number of different agencies, bodies and institutions. This chapter outlines some of these processes for testing compatibility, with a …
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Read moreTerms of Reference
Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and PrivilegesI, Senator the Hon George Brandis QC, Attorney-General of Australia, having regard to the rights, freedoms and privileges recognised by the common law,REFER to the Australian Law Reform Commission (ALRC) for inquiry and report pursuant to section 20(1) of the Australian Law Reform Commission …
Publications
Read more