31.07.2015

The Inquiry

1.1 The Australian Law Reform Commission (ALRC) has been asked to identify and critically examine Commonwealth laws that encroach upon ‘traditional’ or common law rights, freedoms and privileges.^[1] In this Interim Report, the ALRC analyses the source and rationale of many of these important common law rights and provides an extensive survey of current Commonwealth laws that limit these rights. The ALRC also discusses how laws that limit traditional rights might be justified and whether some of these laws merit further scrutiny.

1.2 This chapter considers these matters at a more general level, providing a conceptual foundation for the Inquiry: What are traditional rights, freedoms and privileges? What is their source and where may they be found? How do they relate to human rights in international treaties and bills of rights? To what extent, if any, may Parliament interfere with traditional rights and freedoms? Should laws that limit rights and freedoms require particular scrutiny and justification and, if so, how might this be done—by applying what standard and following what type of process?

[1]
The Terms of Reference were given to the ALRC by Senator the Hon George Brandis QC, Attorney-General of Australia. They are set out in full at the front of this paper. ‘Traditional’ and ‘common law’ are both used in the Terms of Reference.