A common law principle
9.8 The presumption of innocence has been recognised since ‘at latest, the early 19th Century’.[5] In 1935, the House of Lords said the presumption of innocence principle was so ironclad that ‘no attempt to whittle it down can be entertained’.[6] In 2005, the House of Lords said that the underlying rationale for the presumption of …
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8.12 The right to a fair trial is ‘manifested in rules of law and of practice designed to regulate the course of the trial’.[11] Strictly speaking, it is ‘a right not to be tried unfairly’ or ‘an immunity against conviction otherwise than after a fair trial’, because ‘no person has the right to insist upon …
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7.10 In 13th century England, the Magna Carta guaranteed to local and foreign merchants the right, subject to some exceptions, to ‘go away from England, come to England, stay and go through England’.[2] William Blackstone wrote in his Commentaries on the Laws of England that every Englishman under the common law had the right to …
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6.13 There has been some recognition by Australian courts that freedom of association should be considered a common law right.[2] In Tajjour v New South Wales (Tajjour), Keane J cited High Court authority for the proposition that, at common law, freedom of association is a ‘fundamental aspect of our legal system’.[3]6.14 The approach of the …
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5.8 Arguably, ‘the struggle for most of the principal civil liberties we have today originated in the struggle for various aspects of religious liberty’.[1] However, the common law itself has provided little protection for freedom of religion.[2]5.9 Australian courts have stated that religious belief is a ‘fundamental right because our society tolerates pluralism and diversity …
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4.13 Freedom of speech has been characterised as one of the ‘fundamental values protected by the common law’.[5] Heydon J has observed that ‘there are many common law rights of free speech’ in the sense that the common law recognises a ‘negative theory of rights’ under which rights are marked out by ‘gaps in the …
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2.2 The rights, freedoms and privileges set out in the Terms of Reference have a long and distinguished heritage. Many have been recognised in Australia, England and other common law countries for centuries. They form part of the history of the common law, embodying key moments in constitutional history, such as the sealing of the …
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18.1 Judicial review is about setting the boundaries of government power.[1] It is about ensuring government officials obey the law and act within their prescribed powers.[2] 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 …
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17.1 Immunity provisions in legislation can limit the legal protection given to important rights and freedoms. They may operate to allow some interference—usually by government agencies—with a person’s liberty, freedom of movement, bodily security, property, and other rights, and deny civil redress. Although sometimes necessary, laws that give immunity from civil liability and authorise what …
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15.1 The common law recognises a duty to accord a person procedural fairness—a term often used interchangeably with natural justice—when a decision is made that affects a person’s rights, interests or legitimate expectations.[1] Courts may construe a statutory provision as implying that a power be exercised with regard to procedural fairness where a party’s interests …
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