Common law rights, human rights scrutiny in Australia


Australia is unusual among Common Law countries when there is no Charter or Charter or Bill of Rights.

However, ordinary courts have the power to protect human rights, including the rule of law, except when required by law.

The former chairman of the Supreme Court of New South Wales, Spigelman, described the law that established the rights supposing that Parliament should not be limited unless that intention remains clear as a “common law of the Bill of Rights.” ”

Parliament assumes that it does not intend to restrict fundamental rights.

An established principle of interpretation of the Australian courts is that it is assumed that Parliament does not intend to restrict fundamental rights unless it is clearly indicated. In Coco v The Queen (1994), 179, CLR 427, 437, the Supreme Court affirmed this principle as follows:

The courts should not force the legislator to intervene in fundamental rights. This intention should be clearly expressed in clear and unambiguous language.

Although the presumption is that legislation is compatible with the repeal of sufficiently clear words, this assumption represents a considerable degree of protection for what has been called the “principle of legality”. At Electrolux Home Products Pty Ltd v The Australian Workers’ Union, Judge Gleeson said:

The presumption is not just a clue to common sense about what a parliament would probably want in a liberal democracy; is a working hypothesis whose existence is known both by Parliament and by the courts in which legal language is interpreted. The hypothesis is an aspect of the rule of law.

This assumption includes the fundamental rights recognized by the common law.

A similar presumption applies to consistency with the obligations of international law, including obligations under the Human Rights Treaty, which entered into force for Australia before the adoption of the relevant legislation. As noted by the Judge President, Mason and Judge Deane in the Teoh case:

If a law or subordinate law is ambiguous, courts should favor construction which is in conformity with Australian obligations under an international treaty or convention to which Australia is a party, at least in cases where legislation is subsequently enacted, or with accession or ratification of the relevant international instrument. This is because the prima facie Parliament intends to fulfill Australia’s obligations under international law.

What common law rights are relevant?

The cases cited by the president of the Spigelman Court indicate that there is a rebuttable assumption that Parliament did not intend:

Change rights and obligations retrospectively; violate personal liberty;

Commitment to freedom of movement;

Impairment of freedom of expression; change the practice of criminal law on the basis of a fair trial; restrict access to the courts; allow acquittal; interferes with the process of justice; to raise the lawyer’s secret; exclude the right to self-incrimination;

Extension of criminal law; refuse procedural justice to citizens affected by the exercise of public power; give broad powers to executive powers;

Interference with acquired property rights; authorize the commission of a complaint;

Transfer property without compensation; disregard the general law of protection of personal reputation; and intervene in the equality of religion.

I have also noted that while presumption against racial discrimination has not been identified, it has been established that racial discrimination violates the rights of ordinary law. (Constantine vs. Imperial Hotels Ltd [1944] 1 KB 693 in 708).

Judge Spigelman noted that

This common law law overlaps the list of human rights listed in international human rights instruments, but is not identical to them.

(For more in-depth discussion on this page of rights recognized in major human rights treaties, see Rights and freedoms: Right to Justice).

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