Common Law and the Protection of Rights, Freedoms and Privileges: Insights from the ALRC Freedoms Inquiry
The Common Law and the Protection of Rights, Freedoms and Privileges: Insights from the ALRC Freedoms Inquiry, The Mayo Lecture for 2016, James Cook University, Townsville, 12 September 2016 by Professor Rosalind Croucher AM*IntroductionThank you, Ed Harridge, President of the James Cook University (JCU) Student Association, for inviting me to present the Marylyn Mayo Lecture for 2016. I am deeply honoured …
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20.9 As noted in Chapter 18, the common law has long regarded a person’s property rights as fundamental, and ‘property rights’ was one of the four areas identified as of concern in the national consultation on ‘Rights and Responsibilities’, conducted by the Australian Human Rights Commission in 2014.[5]20.10 With respect to the right to exclude …
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18.4 Blackstone observed, in 1773, that the ‘right of property’ was a deeply rooted idea.[5] In the national consultation on ‘Rights and Responsibilities’, conducted by the Australian Human Rights Commission (AHRC) in 2014, the recognition and protection of ‘property rights’ was one of the four areas identified as being of key concern.[6]18.5 Almost a century …
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16.10 Historically, the executive had the benefit of the broad common law immunity of ‘the Crown’.[10] This extended not only to the sovereign, but to the executive government. In Commonwealth v Mewett, which includes a discussion of the history and rationale of Crown immunity, Dawson J said:The immunities which the Crown enjoys from suit in …
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15.7 Access to the courts for the purpose of judicial review is an important common law right. Sir William Wade stated that ‘to exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power’.[6]15.8 In Church of Scientology v Woodward, Brennan J said:Judicial review is neither …
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14.6 In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (Lam), Callinan J explained that ‘natural justice by giving a right to be heard has long been the law of many civilised societies’. He quoted Stanley de Smith, Harry Woolf and Jeffrey Jowell:That no man is to be judged unheard was a precept …
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Criminal law13.11 The common law’s disapproval of retrospective criminal laws has deep roots and a long history. 13.12 In Leviathan, Thomas Hobbes wrote that ‘harm inflicted for a fact done before there was a law that forbade it, is not punishment, but an act of hostility: for before the law, there is no transgression of …
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12.12 Legal professional privilege is an important common law right. It allows a person to ‘resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services’.[2] It …
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11.9 The privilege against self-incrimination is ‘a basic and substantive common law right, and not just a rule of evidence’.[5] It reflects ‘the long-standing antipathy of the common law to compulsory interrogations about criminal conduct’.[6]11.10 In 1983 the High Court described the privilege as follows:A person may refuse to answer any question, or to produce …
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10.10 There is a common law principle that presumes ‘mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence’.[1] The general requirement of mens rea is said to be ‘one of the most fundamental protections in criminal law’,[2] and it reflects the idea that …
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