A 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 …
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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 …
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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 …
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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 …
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Read moreConnection by laws and customs
6.4 The definition of native title in s 223 of the Native Title Act refers to interests in relation to land and waters possessed under traditional laws and customs where Aboriginal peoples or Torres Strait Islanders ‘by those laws and customs, have a connection with the land or waters’. These words are taken from the …
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Read moreAccommodation of change to laws and customs
Proposal 5–1 The definition of native title in s 223 of the Native Title Act should be amended to make clear that traditional laws and customs may adapt, evolve or otherwise develop. 5.15 The ALRC proposes that there be explicit acknowledgment in the Native Title Act that traditional laws and customs under which native title …
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Read moreContinuity of acknowledgment and observance of laws and customs
Proposal 5–3 The definition of native title in s 223 of the Native Title Act should be amended to make clear that it is not necessary to establish that(a) acknowledgment and observance of laws and customs has continued substantially uninterrupted since sovereignty; and(b) laws and customs have been acknowledged and observed by each …
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Read moreThe basis of native title law
2.26 The source for native title in Mabo [No 2] was the recognition by the common law of the pre-existing rights and interests of Aboriginal and Torres Strait Islander peoples.[21] As Dr Paul Burke commentsthe most fundamental choice was to adopt a ‘laws and customs’ approach in which ideas of ‘laws and customs’ become universal, …
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Read moreProgram 1: Conducting inquiries into aspects of Australian laws and related processes for the purposes of law reform
The objective of this program is to produce, for each inquiry, a Report, that contains the evidence base—including in-depth research and analysis of relevant laws, legal frameworks and processes, and community consultation and feedback—and recommendations that will assist the Government to make informed decisions about the development, reform and harmonisation of Australian laws and related …
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Read moreIncapacity and contract law
11.4 The assumption underlying any contract is that each party has freely entered into a binding agreement, having assessed whether or not the terms are in their best interests. Some categories of person—including minors and people with impaired mental capacity—have traditionally been regarded by the law as being incapable of looking after their own interests, …
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