A common law privilege
10.1 The privilege against self-incrimination is ‘a basic and substantive common law right, and not just a rule of evidence’.[1] It reflects ‘the long-standing antipathy of the common law to compulsory interrogations about criminal conduct’.[2]10.2 This chapter discusses the source and rationale of the privilege; how this privilege is protected from statutory encroachment; and when …
Publications
Read moreA common law principle
9.1 In criminal trials, the prosecution bears the burden of proof. This has been called ‘the golden thread of English criminal law’[1] and, in Australia, ‘a cardinal principle of our system of justice’.[2] This principle and the related principle that guilt must be proved beyond reasonable doubt are fundamental to the presumption of innocence.[3]9.2 However, …
Publications
Read moreA common law right
8.1 The right to a fair trial has been described as ‘a central pillar of our criminal justice system’,[1] ‘fundamental and absolute’,[2] and a ‘cardinal requirement of the rule of law’[3].8.2 Fundamentally, a fair trial is designed to prevent innocent people being convicted of crimes. It protects people’s life, liberty and reputation. Being wrongly convicted …
Publications
Read moreThe common law
7.1 People should generally not be prosecuted for conduct that was not an offence at the time the conduct was committed. If on Wednesday it is not an offence to go fishing at Bondi Beach, then people will usually expect that a law will not be enacted on Thursday making it an offence to have gone …
Publications
Read moreA common law right
6.1 The common law has long regarded a person’s property rights as fundamental. William Blackstone said in 1773: ‘There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property.’[1]6.2 However, many laws have been made that interfere with property rights. This chapter discusses the source and …
Publications
Read moreA common law right
5.1 Freedom of movement concerns the freedom of citizens both to move freely within their own country and to leave and return to their own country. It has its origins in ancient philosophy and natural law, and has been regarded as integral to personal liberty.[1]5.2 This chapter discusses the source and rationale of freedom of movement; …
Publications
Read moreA common law right
4.1 In practice, Australians are generally free to associate with whomever they like, and to assemble together to participate in 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. Lord Bingham described the approach …
Publications
Read moreA common law right
3.1 Freedom of religion protects not only the freedom to observe or practise religious beliefs, but also the freedom not to observe or practise any religion or belief.[1] This chapter discusses the source and rationale for protecting freedom of religion; how this freedom is protected from statutory encroachment; and when laws that encroach on this …
Publications
Read moreA common law right
2.1 Freedom of speech is a fundamental common law right.[1] It has been described as ‘the freedom par excellence; for without it, no other freedom could survive’.[2]2.2 This chapter discusses: the source and rationale of freedom of speech; how it is protected from statutory encroachment; and when laws that encroach on freedom of speech may …
Publications
Read moreRights and freedoms under the common law
1.5 The rights, freedoms and privileges listed in the Terms of Reference have a long heritage. Many have been recognised by courts in Australia, England and other common law countries for centuries. They predate many international conventions and declarations that now also protect these rights—such as the Universal Declaration of Human Rights and the International …
Publications
Read more