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  • The Australian Law Reform Commission’s report, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (‘Freedoms Report’), was tabled on 2 March 2016, concluding an 18-month inquiry.
  • The Terms of Reference set out two main tasks: to identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges; and to critically examine those laws to determine whether the encroachment was appropriately justified.
  • The Inquiry provided the opportunity for an exploration of the common law’s contribution to the protection of rights, as many of the 19 rights, freedoms and privileges listed in the Terms of Reference – like freedom of speech, fair trial rights, legal professional privilege, the privilege against self-incrimination, non-retrospectivity of obligations and the criminal standard of proof – may be seen as creatures of the common law.

The Hon Robert French AC, Chief Justice of the High Court, has said that ‘many of the things we think of as basic rights and freedoms come from the common law and how the common law is used to interpret Acts of Parliament and regulations made under them so as to minimise intrusion into those rights and freedoms’ (‘The Common Law and the Protection of Human Rights’, speech to the Anglo Australasian Lawyers Society, Sydney, 4 September 2009, 2).

By reading down laws to minimise possible encroachments on rights and freedoms, the common law – through statutory interpretation – plays a role in protecting them.

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