Australian Law Reform Commission Paper on Traditional Rights and Freedoms—Encroachments by Commonwealth Laws

The Australian Law Reform Commission has published an issues paper entitled Traditional Rights and Freedoms—Encroachments by Commonwealth Laws as part of a consultation process to identify national legislation that encroaches on traditional rights, freedoms and privileges.  These include fundamental freedoms such as freedom of speech, of religion, of movement and association; and rights or privileges such as client legal privilege, the right to a fair trial, and access to the courts, to name a few.

The Commission will then examine those laws to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified:

"For the purpose of the inquiry ‘laws that encroach upon traditional rights, freedoms and privileges’ are to be understood as laws that:

• reverse or shift the burden of proof;
• deny procedural fairness to persons affected by the exercise of public power;
• exclude the right to claim the privilege against self - incrimination;
• abrogate client legal privilege;
• apply strict or absolute liability to all physical elements of a criminal offence;
• interfere with freedom of speech;
• interfere with freedom of religion;
• interfere with vested property rights;
• interfere with freedom of association;
• interfere with freedom of movement;
• disregard common law protection of personal reputation;
• authorise the commission of a tort;
• inappropriately delegate legislative power to the Executive;
• give executive immunities a wide application;
• retrospectively change legal rights and obligations;
• create offences with retrospective application;
• alter criminal law practices based on the principle of a fair trial;
• permit an appeal from an acquittal;
• restrict access to the courts; and
• interfere with any other similar legal right, freedom or privilege."

The Issues Paper provides a brief explanation of each of the rights, freedoms and privileges listed in the Terms of Reference, their origin and rationale, and how they are protected from statutory encroachment. For each one the Commission asks the question: What criteria or principles should be used for determining when encroachment is justified? The Issues Paper also invites people to identify Commonwealth laws that unjustifiably encroach on traditional rights and freedoms, and to explain why the laws are not justified.

The Commission is accepting public submissions until the end of February 2015. It plans to release a Discussion Paper in July 2015 and provide its final report to the Australian Attorney-General in December 2015.