The Australian Law Reform Commission has released the final report of its inquiry on Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129)
The ALRC was asked to identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges recognised by the common law. The ALRC has identified a variety of laws that limit traditional rights and freedoms and whether some of these laws merit further scrutiny.
The ALRC reported that migration laws pursue the objective of regulating, in the national interest, the coming into, and presence in, Australia of non-citizens. Pursuit of this objective may involve some limitations on traditional rights and freedoms. However, such limitations should be proportionate.
The Inquiry expressed significant concerns that a number of migration laws are not proportionate.
The ALRC suggests that these laws would benefit from further analysis to ensure that the laws do not interfere unjustifiably with traditional rights and freedoms.
The ALRC concerns related to the following areas pf migration legislation:
- the freedom of association and assembly – the operation of the ‘character test’ in the Migration Act,
- the right not to be subject to retrospective laws – the Migration Act people smuggling offence
- the right not to be subject to retrospective laws – provisions in the Migration Act converting applications for permanent protection visas into applications for temporary protection visas,
- the right to procedural fairness – for example, the fast track review process for decisions to refuse protection visas,
- the right to judicial review – for example, the privative clause in the Migration Act.
The MIA raised objections to many of these provisions when they were introduced for inclusion in the migration legislation: