Laws with retrospective operation
13.58 Retrospective laws are enacted quite frequently in Australia. Palmer and Sampford identified 99 retrospective laws (that is, either retroactive or retrospective) passed by the Commonwealth Parliament between 1982 and 1990, not including ‘routine revision’ statutes.[71]13.59 This chapter will discuss four retroactive criminal laws, which may in fact be the only retroactive criminal laws passed …
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Read moreA common law right
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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Read moreA common law principle
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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Read moreLaws that reverse the legal burden
9.64 This section identifies a number of Commonwealth laws that place a legal burden on the defendant in respect of particular issues. Offences that reverse the legal burden of proof on an issue essential to culpability arguably provide the greatest interference with the presumption of innocence, and their necessity requires the strongest justification. Such laws, …
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Read moreA common law right
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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Read moreThe common law
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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Read moreLaws that interfere with freedom of association and assembly
6.58 A wide range of Commonwealth laws may be seen as interfering with freedom of association and freedom of assembly, broadly conceived. Some of these laws impose limits that have long been recognised by the common law, for example, in relation to consorting with criminals and preserving public order. Arguably, such laws do not encroach …
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Read moreThe common law
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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Read moreLaws that interfere with freedom of religion
5.66 Freedom of religion is infringed when a law prevents individuals from exercising their religion or requires them to engage in conduct which is prohibited by their religion.[80] Alternatively, the freedom will also be infringed when a law mandates a particular religious practice. There are few, if any, Commonwealth laws that can be said to …
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