Rights 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 Covenant on Civil and Political Rights (ICCPR).

1.6          ‘The common law is a vibrant and rich source of human rights,’ Professors George Williams and David Hume write in their book, Human Rights under the Australian Constitution.[4] The Hon Robert French, Chief Justice of the High Court of Australia, has said:

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. We do so against the backdrop of the supremacy of Parliament which can, by using clear words for which it can be held politically accountable, qualify or extinguish those rights and freedoms except to the extent that they may be protected by the Constitution.[5]

1.7          Although Australia does not have a bill of rights, other common law countries with strong traditions of civil and political rights have not had bills of rights until comparatively recently. The UK Human Rights Act, for example, was only enacted in 1998.

1.8          In his book Human Rights and the End of Empire, English legal historian A W Brian Simpson wrote about the widely held assumption that, before international conventions on human rights, human rights were in the UK ‘so well protected as to be an example to the world’. In normal times, Brian 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, and had done so earlier in the eighteenth and nineteenth centuries, though most of the population could only participate very indirectly, if at all, in government.[6]

1.9          These freedoms were also widely respected in the modern period:

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.[7]

1.10       To the extent that Australian law has protected and fostered rights and freedoms,[8] it has long been statutes and judge-made law that have done so, rather than more broadly expressed bills of rights or international conventions on human rights. Whether the introduction of a bill of rights in Australia is desirable is widely debated, but it is not the subject of this Inquiry.

1.11       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’:

common 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.[9]

1.12       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’.[10]

1.13       Some of the rights and freedoms listed in the Terms of Reference are justiciable legal rights—they give rise to legal obligations and may be enforced in courts of law. In a 2010 speech Protecting Human Rights Without a Bill of Rights, Chief Justice French said:

It is also important to recognise, as Professor Bailey pointed out in his recent book on human rights in Australia, 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.[11]

1.14       Other matters listed in the Terms of Reference, such as those that concern access to the courts and their remedies and court procedures, do not fall neatly into either of these categories.

1.15       It might also be noted that some of the matters listed in the Terms of Reference might more precisely be called legal principles, rather than a right, freedom or privilege. For example, that legislative power should not be inappropriately delegated to the executive does not seem to be a right, freedom or privilege, but rather a constitutional principle. Accordingly, the phrase ‘rights, freedoms and privileges’—and sometimes simply ‘rights’—is used in this paper as shorthand for all the principles set out in the Terms of Reference.

1.16       It should also be noted that not all rights are protected by positive laws. Many rights and freedoms are protected in Australia by virtue of the fact, and to the extent, that laws do not prohibit, or otherwise encroach on, the rights and freedoms. The High Court said in Lange v ABC (1997):

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’.[12]

1.17       Many social and economic rights are also recognised 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.

1.18       Each chapter of this Issues Paper will start with a brief explanation of the particular right, freedom or privilege. But the focus of this Inquiry is on Commonwealth laws that encroach on these traditional or common law rights, rather than on the source or extent of the rights themselves. Therefore, after a brief consideration of the history, source and rationale of the relevant right or freedom, each chapter will consider how the right or freedom is protected from statutory encroachment.

[4]           George Williams and David Hume, Human Rights under the Australian Constitution (OUP, 2nd ed, 2013) 33.

[5]           Robert French, ‘The Common Law and the Protection of Human Rights’ 2.

[6]           Alfred William Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford University Press, 2004).

[7]           Ibid.

[8]           Traditions, culture and politics also play a role.

[9]           JD Heydon, Are Bills of Rights Necessary in Common Law Systems? Lecture Delivered at Oxford Law School (23 January 2013).

[10]         Heydon then said: ‘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.

[11]         Robert French, Protecting Human Rights Without a Bill of Rights, John Marshall Law School, Chicago (26 January 2010).

[12]         Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 564 (Brennan CJ, Dawson, Toohey, Gaudron, Mchugh, Gummow and Kirby JJ) quoting AG v Guardian Newspapers (No 2) [1990] 1 AC 109, 283.