International law
2.92 A consideration of international law is also useful to examine perspectives on how the rights of Indigenous peoples have changed over time. International law has progressively articulated more tangible human rights and freedoms for Indigenous peoples.2.93 International law has relevance to native title claims at a number of levels. This provides the context for …
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Read moreThe law reform brief
The scope of the Inquiry1.14 The ALRC examined four areas of the Native Title Act. Broadly, these areas included: the legal requirements for recognising native title rights and interests; the nature and content (scope) of native title rights and interests; the Act’s provisions for authorisation of an applicant; and the Act’s provisions governing when persons …
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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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Read moreA common law principle
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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Read moreA common law principle
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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Read moreA common law principle
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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Read moreA 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 …
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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, …
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