Submission to the Australian Law Reform Commission Inquiry Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (IP 46)

This submission responds to the Australian Law Reform Commission Issues Paper on Traditional rights and freedoms. The Paper considers a number of common law rights and freedoms, asks what principles should be applied to determine whether encroachment on those rights is justified and seeks examples of unjustified encroachments in Commonwealth legislation. Drawing, in part, on international human rights law standards, PIAC’s submission makes recommendations regarding the freedoms of speech, religion and association; discusses the impact of delegated legislation on rights and freedoms; and considers the impact on access to justice caused by the legislative and practical limitations in relation to judicial review. Given the limited Terms of Reference – they do not, for example, consider a number of fundamental rights such as the right to privacy – PIAC also recommends that a process be undertaken to establish a comprehensive but non-binding document setting out how human rights apply in Australia, how they should be protected in domestic law and how they can be justifiably limited.