2.2 The rights, freedoms and privileges set out in the Terms of Reference have a long and distinguished heritage. Many have been recognised in Australia, England and other common law countries for centuries. They form part of the history of the common law, embodying key moments in constitutional history, such as the sealing of the Magna Carta in 1215, the settlement of parliamentary supremacy following the Glorious Revolution of 1688 and the enactment of the Bill of Rights Act 1688. They were recognised and developed by the courts and some were declared and affirmed by historic statutes and further developed by modern legislation.
2.3 The Hon Robert French AC, Chief Justice of the High Court, has said that
many of the things we think of as basic rights and freedoms come from the common law and how the common law is used to interpret Acts of Parliament and regulations made under them so as to minimise intrusion into those rights and freedoms.
2.4 Many traditional rights and freedoms are recognised now as ‘human rights’. Murphy J referred to ‘the common law of human rights’ and Professors George Williams and David Hume have written that the common law is ‘a vibrant and rich source of human rights.’
2.5 Traditional rights recognised by the common law are now found in international agreements and bills of rights in other jurisdictions—including, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the bills of rights in the United States and Canadian constitutions, and the human rights Acts in the United Kingdom, New Zealand and two Australian jurisdictions, the Australian Capital Territory and Victoria. French CJ has said that the human rights and freedoms in the Charter of Human Rights and Responsibilities Act 2006 (Vic)(the Victorian Charter)‘in significant measure incorporate or enhance rights and freedoms at common law’.
2.6 Before the wave of international conventions in the aftermath of the Second World War, legislation and the common law were the principal sources of protection of rights and freedoms in the UK, Australia, New Zealand and Canada. In his book, Human Rights and the End of Empire, English legal historian AW Brian Simpson wrote about the widely held assumption that, before international conventions on human rights, human rights in the UK were ‘so well protected as to be an example to the world’. In normal times, Simpson writes, ‘when there was neither war, nor insurrection, nor widespread problems of public order, few would deny that people in the United Kingdom enjoyed a relatively high level of personal and political freedom’.
In the modern period, and subject to certain limitations which, for most persons, were of not the least importance, individuals could worship as they pleased, hold whatever meetings they pleased, participate in political activities as they wished, enjoy a very extensive freedom of expression and communication, and be wholly unthreatened by the grosser forms of interference with personal liberty, such as officially sanctioned torture, or prolonged detention without trial.
2.7 To the extent that Australian law has protected and fostered rights and freedoms, it has long been statutes and judge-made law that have done so. In a 2013 speech, former Justice of the High Court of Australia, the Hon John Dyson Heydon AC QC, considered some of the benefits of protecting rights through statutes and the common law. He said that statutes and the common law protect rights often by ‘detailed and precise rules’ and vindicate ‘human rights directly and specifically’:
[C]ommon law and statutory rules tend to be detailed. They are generally enforceable. They are specifically adapted to the resolution of particular problems. Their makers seek, with some success, to make them generally coherent with each other and with the wider legal system.
2.8 Taking the right to a fair trial as an example, Heydon said that rules found in certain statutes and in the common law ‘were worked out over a very long time by judges and legislators who thought deeply about the colliding interests and values involved in the light of practical experience of conditions in society to which the rules were applied’.
2.9 Identifying and critically examining laws that limit rights is a crucial part of protecting rights, and may inform decisions about whether, and if so how, such laws might need to be amended or repealed. This may be seen to complement work that considers other ways to protect rights—such as by creating new offences and new causes of action, or by enacting a bill of rights. Whether the introduction of a bill of rights in Australia is desirable is widely debated, and draws in part upon historical arguments about whether the courts or parliaments are better guardians of individual rights. However, the question is not the subject of this Inquiry.
2.10 The focus of this Inquiry is on identifying and critically examining Commonwealth laws that encroach upon traditional rights. However, as part of the context of this analysis, it is useful to first consider how these rights are protected in law from statutory encroachment. Broadly speaking, some protection is provided by the Australian Constitution and by rules of statutory construction, such as the principle of legality. These are discussed generally below and more fully throughout the report.
2.11 The Constitution expressly protects a handful of rights and has been found to imply certain other rights. The rights expressly protected by the Constitution are:
the right to trial by jury on indictment for an offence against any law of the Commonwealth—s 80;
freedom of trade, commerce and intercourse within the Commonwealth—s 92;
freedom of religion—s 116; and
the right not to be subject to discrimination on the basis of the state in which one lives—s 117.
2.12 Section 51(xxxi) of the Constitution provides that if the Commonwealth compulsorily acquires property, it must do so on ‘just terms’—which may also be conceived of as a right.
2.13 The High Court has also found certain rights or freedoms to be implied in the Constitution—notably, freedom of political communication. This freedom is not absolute, but any law that interferes with political communication must be ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’. The High Court has often said the freedom is not a personal right, but rather is ‘best understood as a constitutional restriction on legislative power’.
2.14 A right to vote has also been found to be implied in the Constitution—laws that limit adult suffrage can only be made when the law is ‘reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government’.
2.15 The High Court may have moved towards entrenching procedural fairness in courts as a constitutional right. Chapter III of the Constitution vests the judicial power of the Commonwealth in the High Court and in other courts that Parliament creates or invests with federal jurisdiction. In Leeth v Commonwealth,Deane and Toohey JJ observed that investing judicial power in ‘courts’ implies that courts ‘exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially’. In Dietrich v The Queen, the High Court drew natural justice implications from the nature of judicial power and held that a person accused of a serious crime might in some circumstances be denied a fair trial, if they were not represented by a lawyer. In Polyukhovich v Commonwealth, Deane J said:
Common sense and the provisions of Ch III, based as they are on the assumption of traditional judicial procedures, remedies and methodology, compel the conclusion that, in insisting that the judicial power be vested only in the courts designated by Chapter III, the Constitution’s intent and meaning were that judicial power would be exercised by those courts acting as courts with all that notion essentially requires.
2.16 In Polyukhovich, it was accepted that bills of attainder violate the constitutional separation of powers. The legislature cannot therefore usurp the distinctly judicial power of the courts to determine criminal guilt.
2.17 If procedural fairness were considered an essential characteristic of a court, Williams and Hume write, this might have the potential, among other things, to constitutionalise
the presumption of innocence, the ‘beyond reasonable doubt’ standard of proof in criminal proceedings, the privilege against self-incrimination, limitations on the use of secret evidence, limitations on ex parte proceedings, limitations on any power to continue proceedings in the face of an unrepresented party, limitations on courts’ jurisdiction to make an adverse finding on law or fact that has not been put to the parties, and limitations on the power of a court or a judge to proceed where proceedings may be affected by actual or apprehended bias.
2.18 It remains to be seen whether this will become settled doctrine of the court.
2.19 The Constitution does not directly and entirely protect many of the rights, freedoms and privileges listed in the ALRC’s Terms of Reference. One reason the Constitution does not expressly protect most civil rights, Professor Helen Irving writes, was the ‘general reserve about directly including policy in the Constitution, instead of powers subsequently to enact policy’.
Specifically, the British legal tradition (in which in fact the ideas of freedom and ‘fair play’, far from being overlooked, were thought central) largely relied on the common law, rather than statute or constitutional provision to define and protect individual rights and liberties. This approach was adopted for the most part by the Australians in constitution-making. It explains in large degree the shortage (as it is now perceived) of explicit statements of ideals and guarantees of rights, and descriptions of essential human and national attributes.
2.20 Professor Jeffrey Goldsworthy has written that the constitutional tradition Australia inherited from Britain was ‘obviously not opposed to rights such as freedom of speech, but was opposed to judges having power to protect them from interference by legislation’:
With a few exceptions, our framers relied on other mechanisms for protecting rights, including constitutional conventions; the common law; presumptions of statutory interpretation; and community attitudes, of tolerance and respect for rights, expressed through the ballot box.
2.21 In Australian Capital Television v Commonwealth,Dawson J suggested that those who drafted the Constitution saw constitutional guarantees of freedoms as ‘exhibiting a distrust of the democratic process’:
They preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers. Their model in this respect was, not the United States Constitution, but the British Parliament, the supremacy of which was by then settled constitutional doctrine.
A common law constitution?
2.22 The term ‘common law constitutionalism’ is now ‘widely used to denote the theory that the most fundamental constitutional norms of a particular country or countries (whether or not they have a written constitution) are matters of common law’. Under this theory, the common law is said to incorporate fundamental moral principles, against which the legality of governmental decisions, and even Acts of Parliament, may be tested. Many of the rights and freedoms listed in the Terms of Reference, even those not fully protected by the Australian Constitution, would be considered constitutional in this way.
2.23 Commonly associated with the writing of Professor Trevor Allan and Lord Justice John Laws, common law constitutionalism has been called ‘a potent phenomenon within contemporary public law discourse’. Allan has written that ‘the common law is prior to legislative supremacy, which it defines and regulates’:
We should not underestimate the power of the common law constitution to protect fundamental rights, and the central role it ascribes to the individual conscience in testing the moral credentials of law, or rather of what purports to be law but may, on inspection, prove to be an infringement of the rule of law.
2.24 Some even suggest that courts may invoke this common law constitution to invalidate Acts of Parliament. The theory has been said to invert the traditional relationship between statute law and the common law. Professor Jeffrey Goldsworthy, a critic of common law constitutionalism, has written that the theory amounts to a ‘takeover bid’ which replaces legislative supremacy with judicial supremacy. The political constitution, Thomas Poole writes, is ‘turned on its head in favour of a system of constitutional politics whose central institution is the common law court’.
2.25 The theory has its leading proponents in the UK, which lacks a written and rigid constitution. In Australia, it has not been applied to invalidate unambiguous statutes. In South Australia v Totani, French CJ said that it is
self-evidently beyond the power of the courts to maintain unimpaired common law freedoms which the Commonwealth Parliament or a State Parliament, acting within its constitutional powers, has, by clear statutory language, abrogated, restricted, or qualified.
2.26 Common law constitutionalism does however find a more confined application in an accepted principle of statutory construction known as the ‘principle of legality’.
The principle of legality
2.27 The principle of legality is a principle of statutory interpretation that gives some protection to certain traditional rights and freedoms, including almost all of those listed in the Terms of Reference. In fact, as Spigelman has said, the ‘protection which the common law affords to the preservation of fundamental rights is, to a very substantial degree, secreted within the law of statutory interpretation’.
2.28 The principle of legality may go back at least as far as Blackstone and Bentham. It may be a new label for a traditional principle. Early Australian authority may be found in the 1908 High Court case, Potter v Minahan. A more recent statement of the principle appears in Re Bolton; Ex parte Beane:
Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.
2.29 The rights or freedoms protected by the principle of legality ‘often relate to human rights and are sometimes described as having a constitutional character’. The principle ‘extends to the protection of fundamental principles and systemic values’. There is no settled list of rights protected by the principle, but in Momcilovic, Heydon J set out the following examples:
[F]reedom from trespass by police officers on private property; procedural fairness; the conferral of jurisdiction on a court; and vested property interests …; rights of access to the courts; rights to a fair trial; the writ of habeas corpus; open justice; the non-retrospectivity of statutes extending the criminal law; the non-retrospectivity of changes in rights or obligations generally; mens rea as an element of legislatively-created crimes; freedom from arbitrary arrest or search; the criminal standard of proof; the liberty of the individual; the freedom of individuals to depart from and re-enter their country; the freedom of individuals to trade as they wish; the liberty of individuals to use the highways; freedom of speech; legal professional privilege; the privilege against self-incrimination; the non-existence of an appeal from an acquittal; and the jurisdiction of superior courts to prevent acts by inferior courts and tribunals in excess of jurisdiction.
2.30 The primary rationale for this principle of statutory construction was provided by Lord Hoffmann:
[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
2.31 The ‘political cost’ of the decision was also something referred to by French CJ. The interpretation of legislation takes place ‘against the backdrop of the supremacy of Parliament’, which can qualify or extinguish rights and freedoms by ‘clear words’—but words ‘for which it can be held politically accountable’. As suggested in Coco v The Queen, the principle may ‘enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights’.
2.32 The principle of legality may be applied not only to statutes, but also to regulations and other delegated legislation, where in fact it may assume greater importance, given such laws are not made directly by Parliament.
2.33 The principle of legality is similar to interpretation provisions in some human rights Acts, such as s 32(1) of the Victorian Charter, which provides: ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’. French CJ has said that this provision is ‘analogous to the common law principle of legality’. The principle of legality could be similarly codified in a Commonwealth statute, such as the Acts Interpretation Act 1901 (Cth). This could act as a clear statement of parliamentary support for the principle of legality and further protect fundamental rights and freedoms from statutory limitation.
2.34 Finally, it should be stressed that the principle ‘does not constrain legislative power’. Subject to the Constitution, Parliament has the power to modify or extinguish common law rights. Chief Justice Robert French has said while the principle has a ‘significant role to play in the protection of rights and freedoms’, it does not ‘authorise the courts to rewrite statutes’. The principle of legality will have a very limited application where encroaching on a right is a clear objectof a statute.
2.35 Each chapter of this Report sets out examples of international instruments that protect the relevant right or freedom. Most commonly cited is the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party.
2.36 Instruments such as the ICCPR provide some protection to rights and freedoms from statutory encroachment, but, like the principle of legality, generally only when a statute is unclear or ambiguous:
Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party.
2.37 In Mabo v Queensland [No 2], Brennan J said that ‘international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights’.
2.38 However, even international instruments to which Australia is a party do not create binding domestic law in Australia. Nor do they abrogate the power of the Commonwealth Parliament to make laws that are inconsistent with the rights and freedoms set out in these instruments. In Dietrich v The Queen, Mason CJ and McHugh J said:
Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions.
2.39 In Minister for Immigration v B, Kirby J said that the High Court ‘cannot invoke international law to override clear and valid provisions of Australian national law’.
2.40 International law protects rights in other ways. For example, Australia periodically reports to and appears before relevant United Nations human rights treaty bodies. And as discussed below and in Chapter 3, Australian parliamentary committees scrutinise laws for compatibility with core international human rights treaties. The United Nations Human Rights Committee also considers communications from individuals who claim to be victims of a human rights violation.
2.41 While the focus of the Terms of Reference is upon common law rights and freedoms, international human rights law informs approaches to domestic law and also the ALRC’s obligations in conducting inquiries.
The nature of common law rights
2.42 Some of the rights and freedoms listed in the Terms of Reference directly give rise to legal obligations and may be enforced in courts of law. Others are more like freedoms or liberties and are protected in Australia by virtue of the fact, and largely only to the extent, that laws do not encroach on the freedom. The High Court said in Lange v Australian Broadcasting Corporation:
Under a legal system based on the common law, ‘everybody is free to do anything, subject only to the provisions of the law’, so that one proceeds ‘upon an assumption of freedom of speech’ and turns to the law ‘to discover the established exceptions to it’.
2.44 In some other jurisdictions, rights and freedoms are afforded additional protection from statutory encroachment by bills of rights and human rights statutes. The degree of protection offered by these statutes varies. A constitutionally entrenched bill of rights, such as that found in the United States Constitution, allows the judiciary to declare a law invalid. This may be contrasted with the Human Rights Act 1998 (UK), which does not give courts the power to strike down legislation, but provides that ‘[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible’ with rights and freedoms set out in the European Convention on Human Rights. The Victorian Charter has a similar provision, quoted above.
2.45 Common law rights overlap with the rights protected in these international instruments and bills of rights. In their history and development, each may be seen as an important influence on the other. A statute that encroaches on a traditional common law right will often, therefore, also encroach on its related human right. However, the two rights may not always have the same scope. While some common law rights are often conceived of as residual, human rights are rarely thought of in this way. Moreover, human rights have been said to tend to grow in content and form. Professor Tom Campbell has written:
More and more interests are recognized as justifying the protection that flows from being adopted as a human right. This growth is a matter of the form of human rights as well as their content. Thus, even traditional core civil and political liberties are seen as involving positive correlative duties to secure the interest identified in the right, and not, as before, merely negative correlative duties to let people be and leave them alone to go their own way. Human rights are also being put to a wider variety of uses.
2.46 Many social and economic rights are also recognised as human rights in international law—for example, the right to work and the right to housing. As important as these rights may be, they are not the focus of this Inquiry.
2.47 In the absence of a specific legislative restriction which is consistent with the Constitution, the enjoyment of most common law rights and freedoms is not confined to Australian citizens.
2.48 At common law, people who are not Australian citizens (‘aliens’), other than enemy aliens, are to be treated, while they are in Australia, as being within ‘the Queen’s Peace’, not as outlaws placed beyond the ordinary legal system. The High Court has noted on several occasions that such people are entitled to the same protection with respect to civil rights as the law affords to Australian citizens.
2.49 A related issue concerns whether common law rights have extra-territorial effect—that is, do they apply to people who are outside Australia, or on their way to Australia. Generally, Australian common law does not apply of its own force in areas beyond the limits of Australia. In Ruddock v Vadarlis, Beaumont J held that asylum seekers aboard the MV Tampa had not, and could not, assert a common law right to enter Australia; and it is unlikely they had other Australian common law rights that could be enforced.
2.50 There is a common law presumption that legislation does not have extra-territorial application. Australian law may be given extra-territorial effect in legislation—for example, as has been done in relation to child sex offences. Where Australian law has extra-territorial effect, common law rights may apply. For example, an Australian military tribunal operating outside Australia would be expected to observe natural justice.
‘The liberties often associated with the Magna Carta were a product of the institutions of Parliament and the Courts, over the course of centuries. However, the development of those institutions was significantly influenced by the Magna Carta’: James Spigelman, ‘Magna Carta: The Rule of Law and Liberty’ (Centre for Independent Studies, 15 June 2015) 1. See also Paul Brand, ‘Magna Carta and the Development of the Common Law’ (Patron’s Address, Academy of Law, Sydney, 18 May 2015); Nicholas Cowdery, ‘Magna Carta—800 Years Young’ (Speech, St James’ Church, Sydney, 14 June 2015).
Bill of Rights 1688 1 Will & Mar Sess 2 c 2 (Eng). The Bill of Rights remains an important element in the rule of law in Australia, as illustrated by Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; Port of Portland v Victoria (2010) 242 CLR 348.
Robert French, ‘The Common Law and the Protection of Human Rights’ (Speech, Anglo Australasian Lawyers Society, Sydney, 4 September 2009).
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 346.
George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013) 33.
Momcilovic v The Queen (2011) 245 CLR 1, .
AW Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford University Press, 2004).
Traditions, culture and politics also play a role. ‘Legal rights do not necessarily offer better protection than societal rights. Public opinion, peer pressure and individual conscience may be more effective in seeing that rules are obeyed than expensive and elaborate bureaucratic and court procedures which may have very low compliance rates’: Tom Campbell, Rights: A Critical Introduction (Taylor & Francis, 2011) 87.
J D Heydon, ‘Are Bills of Rights Necessary in Common Law Systems?’ (Lecture, Oxford Law School, 23 January 2013).
‘Abstract slogans and general aspirations about human rights played no useful role in their development. The great detail of this type of regime renders it superior to bills of rights’: Ibid.
A bill of rights might give courts the power to strike down, or make declarations about, laws that unjustifiably limit rights.
See, eg, discussion in Attorney-General’s Department, National Human Rights Consultation Report (2009).
See, eg, Jeremy Waldron, ‘The Core of the Case against Judicial Review’  The Yale Law Journal 1346. Hiebert contrasts the two ‘rival paths’ in liberal constitutionalism to rights protection: one is the codification of rights, as in the US; the other emphasises parliamentary supremacy, as in Westminster-modelled parliamentary systems: Janet L Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69 Modern Law Review 7, 7–8.
Some stakeholders nevertheless took the opportunity to argue that the most appropriate way to protect traditional rights is to enact a Commonwealth Human Rights Act: National Association of Community Legal Centres, Submission 143; Law Council of Australia, Submission 140; Australian Privacy Foundation, Submission 116; Kingsford Legal Centre, Submission 110.
Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1, 349 (Dixon J).
See Australian Capital Television v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; Unions NSW v State of New South Wales (2013) 88 ALJR 227. The High Court has said that ‘freedom of association to some degree may be a corollary of the freedom of communication’: Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 181,  (Gummow and Hayne JJ).
This is part of the second limb of the Lange test, as set out by French CJ in Hogan v Hinch (2011) 243 CLR 506.
McCloy v New South Wales  HCA 34 . See also Unions NSW v New South Wales (2013) 252 CLR 530 at 554 . Ratnapala and Crowe question the accuracy and usefulness of this distinction: Suri Ratnapala and Jonathan Crowe, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 3rd ed, 2012) 421.
Roach v Electoral Commissioner (2007) 233 CLR 162,  (Gummow, Kirby and Crennan JJ). See also, Rowe v Electoral Commissioner (2010) 243 CLR 1.
Williams and Hume, above n 5, 375.
Leeth v Commonwealth (1992) 174 CLR 455, 486–7.
Dietrich v The Queen (1992) 177 CLR 292, 315, 337, 362, 374.
Polyukhovich v Commonwealth (1991) 172 CLR 501, 607.
A bill of attainder is a statute that states that a specific person is ‘guilty of an offence constituted by past conduct and impos[es] punishment in respect of that offence’: Ibid .
Williams and Hume, above n 5, 376.
Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution (Cambridge University Press, 1999) 162.
Jeffrey Goldsworthy, ‘Constitutional Implications Revisited’ (2011) 30 University of Queensland Law Journal 9, 25.
Australian Capital Television v Commonwealth (1992) 177 CLR 106, . Mason CJ said: ‘The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen’s rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy’: Ibid .
Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge University Press, 2010) 17.
Thomas Poole, ‘Dogmatic Liberalism? TRS Allan and the Common Law Constitution’ (2002) 65 The Modern Law Review 463, 463.
See, eg, TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2003); TRS Allan, The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford University Press, 2013).
See, eg, John Laws, The Common Law Constitution (Cambridge University Press, 2014). Paul Craig, Jeffrey Jowell and Dawn Oliver are the other ‘prime movers’ behind this ‘quiet revolution’ identified by Poole: Thomas Poole, ‘Questioning Common Law Constitutionalism’ (2005) 25 Legal Studies 142, 142.
Poole, above n 32.
TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2003) 271.
TRS Allan, ‘In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law’ 190.
See also the comments of Sir Robin Cooke, former President of the New Zealand Court of Appeal, and discussed in Justice Michael Kirby, ‘The Struggle for Simplicity: Lord Cooke and Fundamental Rights’ (Speech, New Zealand Research Foundation Conference, Auckland, 4 April 1997).
Goldsworthy, Parliamentary Sovereignty, above n 31, 15.
Poole, above n 32, 463.
South Australia v Totani (2010) 242 CLR 1, . In a speech, Chief Justice French said: ‘The theoretical question whether fundamental common law principles can qualify legislative power has not been definitively answered in Australia. … The omens are not promising for the proponents of a free-standing common law limitation. However, the question has been left, at least theoretically, open’: Robert French, ‘Common Law Constitutionalism’ (Robin Cooke Lecture, Wellington, New Zealand, 27 November 2014).
The phrase ‘principle of legality’ is also used to refer to ‘a wider set of constitutional precepts requiring any government action to be undertaken only under positive authorisation’: Brendan Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372, 373. In this Report, the phrase is used to refer to the narrower point of statutory interpretation. Recent papers on the principle also include Dan Meagher, ‘The Common Law Principle of Legality in the Age of Human Rights’ (2011) 35 Melbourne University Law Review 449; James Spigelman, ‘The Common Law Bill of Rights’ (2008) 3 Statutory Interpretation and Human Rights: McPherson Lecture Series.
Spigelman, above n 43, 9. See also Robert French, ‘The Common Law and the Protection of Human Rights’ (Speech, Anglo Australasian Lawyers Society, Sydney, 4 September 2009) 2.
James Spigelman, ‘The Principle of Legality and the Clear Statement Principle’ (2005) 79 Australian Law Journal 769, 775. It has ‘many authorities, ancient and modern, Australian and non-Australian’: Attorney-General for South Australia v Corporation of the City of Adelaide (2013) 249 CLR 1, 66  (Heydon J). Although the continuity of the principle is questioned in Lim, above n 43, 380.
Jeffrey Goldsworthy, ‘The Constitution and Its Common Law Background’ (2014) 25 Public Law Review 265, 279.
‘It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used’: Potter v Minahan (1908) 7 CLR 277, 304.
Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523. This was quoted with approval in Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).
Momcilovic v The Queen (2011) 245 CLR 1,  (Heydon J).
Lee v New South Wales Crime Commission (2013) 302 ALR 363, (Gageler and Keane JJ).
Momcilovic v The Queen (2011) 245 CLR 1,  (Heydon J) (citations omitted). In Malika Holdings v Stretton, McHugh J said: ‘No doubt there are fundamental legal principles—a civil or criminal trial is to be a fair trial, a criminal charge is to be proved beyond reasonable doubt, people are not to be arrested or searched arbitrarily, laws, especially criminal laws, do not operate retrospectively, superior courts have jurisdiction to prevent unauthorised assumptions of jurisdiction by inferior courts and tribunals are examples. Clear and unambiguous language is needed before a court will find that the legislature has intended to repeal or amend these and other fundamental principles’: Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, . Other lists appear in: Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014); Spigelman, above n 43; Williams and Hume, above n 5. See also Australian Law Reform Commission, Traditional Rights and freedoms—Encroachments by Commonwealth Laws, Issues Paper No 46 (2014) Ch 19.
R v Secretary of State for the Home Department; ex parte Simms  2 AC 115 131.
Robert French, ‘The Common Law and the Protection of Human Rights’ (Speech, Anglo Australasian Lawyers Society, Sydney, 4 September 2009) 2.
Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ). This is a classic discussion of the principle of legality, although the phrase ‘principle of legality’ is not used.
See Dan Meagher and Matthew Groves, ‘The Common Law Principle of Legality and Secondary Legislation’ (forthcoming, to be published in the University of New South Wales Law Journal).
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(1). See also Human Rights Act 1998 (UK) s 3(1).
Robert French, ‘Common Law Constitutionalism’ (Robin Cooke Lecture, Wellington, New Zealand, 27 November 2014).
Momcilovic v The Queen (2011) 245 CLR 1,  (French CJ). In a 2012 speech, Chief Justice Robert French said: ‘The common law principle of legality has a significant role to play in the protection of rights and freedoms in contemporary society while operating consistently with the principle of parliamentary supremacy. It does not, however, authorise the courts to rewrite statutes in order to accord with fundamental human rights and freedoms’: Chief Justice Robert French, ‘The Courts and Parliament’ (Speech, Queensland Supreme Court, Brisbane, 4 August 2013).
Chief Justice Robert French, The Courts and the Parliament (Queensland Supreme Court Seminar, Brisbane, 4 August 2012).
‘The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked’: Lee v New South Wales Crime Commission (2013) 302 ALR 363,  (Gageler and Keane JJ).
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
The other United Nations human rights treaties Australia has signed are: International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008); Convention on the Rights of the Child, opened for signature 20 December 1989, 1577 UNTS 3 (entered into force 2 September 1990); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1980, 1249 UNTS (entered into force 3 September 1981).
In Coleman v Power, Gleeson CJ distinguished between statutes enacted before ratification of a particular international treaty and those statutes enacted after ratification, arguing that only the latter can be interpreted in line with the relevant treaty: Coleman v Power (2004) 220 CLR 1, .
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). There is a ‘common law principle that statutes should be interpreted and applied, so far as their language permits, so as not to be inconsistent with international law or conventions to which Australia is a party’: Momcilovic v The Queen (2011) 245 CLR 1,  (French CJ). Every statute is ‘to be so interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations or with established rules of international law’: Jumbunna Coal Mine NL v Victorian Coal Miners’Association (1908) 6 CLR 309, 353 (O’Connor J).
Mabo v Queensland [No 2] (1992) 175 CLR 1, 42. Professor Ivan Shearer has said: ‘This puts the matter in a nutshell: the Covenant is not as such part of the law of Australia, but is a powerful influence on the judges in developing the common law’: Ivan Shearer, ‘The Relationship between International Law and Domestic Law’ in Brian Opeskin and Donald Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, 1997) 56.
Dietrich v The Queen (1992) 177 CLR 292, 305.
Minister for Immigration v B (2004) 219 CLR 365,  (Kirby J). Similarly, in The Malaysian Declaration Case, Kiefel J said that a ‘statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with established rules of international law … However, if it is not possible to construe a statute conformably with international law rules, the provisions of the statute must be enforced even if they amount to a contravention of accepted principles of international law’. Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, .
See Attorney-General’s Department, United Nations Human Rights Reporting <http://www.ag.gov.au>.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) First Optional Protocol, art 1.
The Terms of Reference do not expressly refer to Australia’s legal obligations under international human rights instruments, as pointed out by Councils for Civil Liberties, Submission 142; Law Council of Australia, Submission 140; Refugee Advice & Casework Service, Submission 119. See also Monash University Castan Centre for Human Rights, Submission 18.
The ALRC must aim to ensure that the laws, proposals and recommendations it reviews, considers or makes are, as far as practicable, consistent with Australia’s international obligations that are relevant to the matter: Australian Law Reform Commission Act 1996 (Cth) s 24(1)(b).
The most comprehensive and compelling explanation of the nature of rights and liberties and the jural relations that they create was provided by the American jurist Wesley Newcomb Hohfeld: Wesley Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16. For a discussion, see Suri Ratnapala, Jurisprudence (Cambridge University Press, 2009) ch 13. In a speech about common law protections of human rights, Chief Justice French said that it was ‘important to recognise … that common law ‘rights’ have varied meanings. In their application to interpersonal relationships, expressed in the law of tort or contract or in respect of property rights, they are justiciable and may be said to have ‘a binding effect’. But ‘rights’, to movement, assembly or religion, for example, are more in the nature of ‘freedoms’. They cannot be enforced, save to the extent that their infringement may constitute an actionable wrong such as an interference with property rights or a tort’: Chief Justice Robert French, ‘Protecting Human Rights Without a Bill of Rights’ (Speech, John Marshall Law School, Chicago, 26 January 2010).
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 564 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) quoting Attorney General v Guardian Newspapers (No 2)  1 AC 109, 283. The corollary of this principle is that no person or authority may interfere with the liberty of a person except by authority of law: see, eg, Entick v Carrington (1765) 19 St Tr 1029.
‘The traditional doctrine in English law is that Parliament is sovereign. However, individuals may say or do whatever they please provided they do not transgress the substantive law or infringe the legal rights of others. Furthermore, public authorities including the Crown may do nothing but that which they are authorized to do by some rule of common law (including the royal prerogative) or statute and, in particular, may not interfere with the liberties of individuals without statutory authority. Where public authorities are not authorized to interfere with the individual, the individual has liberties. It is in this sense that such liberties are residual rather than fundamental and positive in their nature: they consist of what remains after taking account of all the legal restraints that impinge upon an individual’: Hugh Tomlinson, Richard Clayton and Victoria Butler-Cole, The Law of Human Rights (University Press, 2009) 28.
One consequence of the fact that many common law rights are residual is that Parliament can always ‘legislate fundamental rights out of existence’: Ibid 29.
Human Rights Act 1998 (UK) s 3(1).Section 4(2) also gives the courts a power to make a ‘declaration of incompatibility’. In a speech about human rights, Lady Hale said that statements from Lord Nicholls, Lord Steyn and Lord Rodger in Ghaidan v Godin Mendoza gave ‘a very broad meaning’ to what was ‘possible’: ‘as long as an interpretation was not contrary to the scheme or essential principles of the legislation, words could be read in or read out, or their meaning elaborated, so as both to be consistent with the convention rights and “go with the grain” of the legislation, even though it was not what was meant at the time’: Lady Hale, ‘What’s the Point of Human Rights?’ (Warwick Law Lecture, 28 November 2013). See also, Ghaidan v Godin Mendoza  2 AC 557.
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(1).
Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone, Protecting Human Rights: Instruments and Institutions (Oxford University Press, 2003) 17.
The Report focuses on the rights and freedoms listed in the Terms of Reference.
At common law, freedom of movement concerns the freedom of citizens to leave and return to their own country. Therefore, migration laws applying to non-citizens are not generally considered to directly engage this particular right. See Ch 7.
Bradley v Commonwealth (1973) 128 CLR 557, 582 (Barwick CJ); Re Minister for Immigration and Multicultural Affairs v Te (2002) 212 CLR 165,  (Gummow J); Singh v Commonwealth (2004) 222 CLR 322,  (Gummow, Hayne and Heydon JJ).
In Commonwealth v Yarmirr, the High Court held that native title rights and interests were capable of being recognised by the common law in respect of the sea and sea-bed beyond the low-water mark: Commonwealth v Yarmirr (2001) 208 CLR 1, –. However, there was no suggestion that the common law extended beyond the territorial sea.
Ruddock v Vadarlis (2001) 110 FCR 491, . Beaumont J stated that the absence of a common law claim was fatal to the case for relief in the form of the common law prerogative writ of habeas corpus. See also CPCF v Minister for Immigration  HCA 1.
Criminal Code div 272.