‘Traditional’ rights and freedoms – Encroachments by Commonwealth Laws’ – Interim Report

August 7, 2015


The ALRC has released its Interim Report which reflects the law as at 17 July 2015.

Attached is a copy of the report titled ‘Traditional’ rights and freedoms – Encroachments by Commonwealth Laws’.



In February 2015, ALHR submitted to the ALRC that:

  • International human rights standards are the criteria by which the Commission should determine whether and what ‘traditional rights, freedoms and privileges’ may require protection from statutory incursion;
  • in addition to the principles of transparency and accountability, the following documents set out appropriate principles to guide the ALRC:
    • Guidance Notes 1 and 2 issued by the Parliamentary Joint Committee on Human Rights, December 2014;
    • Guide to Human Rights, Parliamentary Joint Committee on Human Rights, March 2014;
    • Rule of Law Principles, a Policy Statement of the Law Council of Australia, March 2011;
  • the issue of a Charter of Rights, or similar form of national protection of these human rights standards, cannot logically be quarantined from the Commission’s review.

ALHR noted that not every right or process of Australia’s common law heritage is necessarily beneficial nor should take priority over contemporary regulation by statute or constitution. A range of common law rules has been changed over time, through statutory amendment, because the rules became out-of-step with contemporary expectations. That something is traditional or long-standing does not necessarily mean that it is good or desirable. Age alone is an insufficient test by which to judge the desirability of particular laws or values. No one seeks to retain everything from the past, only the best, and to favour longstanding concepts over newer ideas is to refuse to progress.

In summary, ALHR submitted that laws encroaching on a freedom should:

  • Be clear, accessible and precise so that people know the legal consequences of the limitations or the circumstances under which authorities may restrict the right or freedom;
  • Be in pursuit of a legitimate objective;
  • Be necessary in pursuit of that objective;
  • Have a rational connection to the objective to be achieved;
  • Apply to all people equally and not discriminate on arbitrary or irrational grounds;
  • Be proportionate to the objective being sought (taking into consideration whether there are other less restrictive ways to achieve the aim, the impact of the legislation upon human rights, whether affected groups are particularly vulnerable, whether the merits of individual cases can be taken into account);
  • Contain effective and transparent safeguards or controls (including as to monitoring and access to review, public trial, no limitations on judicial discretion or information available to legal representatives, notification to persons affected by the legislation);
  • Not be disproportionately severe (eg not involve reverse burden offences and/or strict liability offence);
  • Not be retrogressive in terms of diminishing any existing rights or accepted norms, including international human rights norms;
  • Only permit proportionate subordinate legislation (in particular, not subordinate legislation that creates new offences or confers new powers on executive agencies);
  • Be transparent so that decisions made under the laws are open to scrutiny; and
  • Enshrine accountability by specifying to whom the decision-maker is accountable, by what process, according to what standards and involving what effects.