The common law
5.1 In practice, Australians are generally free to associate with whomever they like, and to assemble to participate in activities including, for example, a protest or demonstration. However, freedom of association and assembly are less often discussed, and their scope at common law less clear than related freedoms, such as freedom of speech.5.2 This chapter …
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4.1 Generally speaking, Australians enjoy significant religious freedom, particularly by comparison to other jurisdictions. Australians enjoy the freedom to worship and practise religion, as well as the freedom not to worship or engage in religious practices.4.2 The common law provides limited protection for freedom of religion.[1] The scope of religious freedom at common law is …
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3.1 Freedom of speech has been characterised as one of the ‘fundamental values protected by the common law’[1] and as ‘the freedom par excellence; for without it, no other freedom could survive’.[2]3.2 This chapter discusses the source and rationale of the common law right of freedom of speech; [3] how this right is protected from …
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Read more9. Native Title: Comparisons with Common Law Jurisdictions
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Read moreA common law principle
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]18.2 This chapter discusses the source and rationale of this common law principle; how the principle is protected from statutory encroachment; and when laws that limit judicial review may be …
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17.1 It is a fundamental tenet of the rule of law that no one is above the law. This principle applies to the government, its officers and instrumentalities: their conduct should be ruled by the law. AV Dicey wrote that the rule of law encompasses:equality before the law or the equal subjection of all classes to …
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Read moreA common law duty
14.1 The common law recognises a duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations.[1] In Kioa v West (1985), Mason J said:It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, …
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13.1 ‘It is a golden rule, of great antiquity, that a person who has been acquitted on a criminal charge should not be tried again on the same charge.’[1] It is said that to try a person twice is to place them in danger of conviction twice—to ‘double their jeopardy’. However, critics of the principle …
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12.1 There is a common law presumption that ‘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 thatit is …
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Read moreA common law privilege
11.1 Client legal privilege is an ‘important common law immunity’[1] and a ‘fundamental and general principle of the common law’.[2] It ‘exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers’.>[3]11.2 The common law protects confidentiality in a lawyer-client relationship by giving people …
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