Common law rights, human rights scrutiny and the rule of law

Presumption regarding limiting rightsWhich common law rights are relevantLimits of common law rights | Where common law may extend treaty based recognition | Examples | Common law rights and parliamentary scrutinyResources |  Comments  

Australia is unusual among common law countries in not having a statutory or Constitutional Charter or Bill of Rights.

However, common law courts have power to provide significant protection of human rights principles including the rule of law, except where specifically overriden by legislation.

Former NSW Chief Justice Spigelman has described case law setting out rights which Parliament is presumed not to have intended to limit or overrule, unless this intention is made clear, as a "common law Bill of Rights".

Parliament presumed not to intend to limit fundamental rights

 A well established principle of statutory interpretation in Australian courts is that Parliament is presumed not to have  intended to limit fundamental rights, unless it indicates this intention in clear terms. In Coco v The Queen (1994) 179 CLR 427 at 437 the High Court restated this principle as follows:  

The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. 

Although the presumption -  that legislation is intended to be consistent with fundamental rights - can be overridden by sufficiently clearly words, this presumption constitutes a substantial level of protection for what has been termed the "principle of legality".  In Electrolux Home Products Pty Ltd v Australian Workers' Union, Chief Justice Gleeson said:

The presumption is not merely a commonsense guide to what a parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.

This presumption includes fundamental rights recognised by the common law.

A similar presumption applies regarding consistency with international law obligations, inluding human rights treaty obligations, which came into force for Australia prior to the passage of the legislation concerned. As stated by High Court Chief Justice Mason and Justice Deane in the Teoh case:

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, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law. 

Which common law rights are relevant?

 Cases cited by Chief Justice Spigelman indicate that there are rebuttable presumptions that Parliament did not intend:

  • to retrospectively change rights and obligations;
  • to infringe personal liberty;
  • to interfere with freedom of movement;
  • to interfere with freedom of speech;
  • to alter criminal law practices based on the principle of a fair trial;
  • to restrict access to the courts;
  • to permit an appeal from an acquittal;
  • to interfere with the course of justice;
  • to abrogate legal professional privilege;
  • to exclude the right to claim self-incrimination;
  • to extend the scope of a penal statute;
  • to deny procedural fairness to persons affected by the exercise of public power;
  • to give executive immunities a wide application;
  • to interfere with vested property rights;
  • to authorise the commission of a tort;
  • to alienate property without compensation;
  • to disregard common law protection of personal reputation; and
  • to interfere with equality of religion.

He also noted that while a presumption against racial discrimination has yet to be identified, racial discrimination has been found to breach common law rights. (Constantine v Imperial Hotels Ltd [1944] 1 KB 693 at 708). 

Chief Justice Spigelman noted that

This common law bill of rights overlaps with, but is not identical to, the list of human rights specified in international human rights instruments.

(For further discussion on this site of rights recognised in the main human rights treaties see Rights and freedoms: right by right.)

Limits of common law rights

Positive measures | Personal liberty

In addition to lacking a presumption against discrimination, the "common law Bill of Rights" may in some respects be narrower or less specific than treaty based recognition of human rights. This issue is only discussed briefly here since

  • in establishing the Parliamentary Joint Committee on Human Rights, the Federal Parliament has already decided not to rely exclusively on common law presumptions in conducting human rights scrutiny, but to ensure scrutiny of legislation by reference to human rights instruments; and
  • as indicated above by reference to the Teoh case for example, courts considering human rights issues have also referred to the presumption that Parliament does not intend to act inconsistently with international law, including obligations assumed by Australia under human rights treaties.

As discussed below, by contrast, there may also be areas where the "common law Bill of Rights" extends to issues not covered, or not clearly covered, by treaty obligations.

Positive measures

Common law recognition of rights generally lacks the provisions contained in the human rights treaties for obligations on governments to take active measures to promote and protect human rights, in addition to refraining from acting inconsistently wth rights. 

Common law principles do contain concepts intended to provide protection regarding children and regarding people with disability in some areas,  although in some instances this has led (because of relevant statutory provisions and lack of appropriate administrative and policy  settings) to further breaches of human rights.

For example, a person with disability who is (in the interests of the right to a fair trial)  found unfit to plead to criminal charges, may as a consequence be detained indefinitely, without the courts having found any capacity to remedy the obvious (and in some cases extremely severe) breaches of ICCPR Article 9 involved.

Personal liberty

Privacy | Freedom of association | Freedom of assembly | Slavery | Torture and human treatment

Common law principles in this area clearly cover the issues dealt with by ICCPR Article 9, although Article 9 provides more detail in some respects.

As with the common law principle, Article 9 includes a principle of legality, in requiring that any restrictions be specifically provided by law.

It is less clear how far the concept of personal liberty extends to cover other related rights and freedoms under the ICCPR.

Privacy

The right to privacy under the ICCPR includes a right to private life (including intimate behaviour between consenting adults), as confirmed for example by the UN Human Rights Committee in Toonen v Australia. There does not appear to be any correspondingly broad common law presumption yet identified specifically to restrict the extent to which the legislature may intrude into private life.

Freedom of association

Although freedom of association is not expressly referred to in Chief Justice Spigelman's listing, freedom of association would appear to be included among relevant rights, having regard to the views of the Full Federal Court in Dr Haneef's case. The present status at common law of rights to engage in trade union activity is less clear.

Freedom of assembly

Freedom of assembly is not mentioned among the rights expressly mentioned in Chief Justice Spigelman's listing, although it can be seen to be closely connected to freedom of movement and of expression, which are.

Slavery

Having regard to Lord Mansfield's landmark judgment in Somersett v Stewart (1772) 98 ER 499, freedom from slavery (if not necessarily freedom from forced labour) would also appear to be included among fundamental common law freedoms for this purpose.

A right to personal liberty appears naturally to encompass freedom from slavery and trafficking in persons.

Contracts involving any form of slavery or trafficking in persons would now be unenforceable in common law courts as contrary to public policy. (This was not always clearly the case - public policy having changed by legislative measures, by the actions of common law courts themselves in and subsequent to Somersett's case,  and the abandonment of military, administrative and legislative support for slave trading activities, such as the activities of the Royal African Company established by a Charter granted by Queen Elizabeth I).

Torture; cruel, inhuman or degrading treatment or punishment; humane conditions in detention

Common law principles cover some. but not necessarily all. of the content of ICCPR Articles 7 and 10.

Physical forms of torture constitute torts (such as trespass) in the absence of, or in excess of, legal authority, and are thus subject to the presumption that legislation is not intended to authorise commission of a tort.

How far other forms of mistreatment are subject to the same principle is less clear - since it would depend on whether the mistreatment concerned constitutes a tort.

 Where common law rights may extend treaty based recognition of human rights

Property rights and review of executive action | Legal professional privilege | Rights against self incrimination

Property rights and review of executive action

Spigelman CJ notes that common law presumptions include presumptions that the Parliament does not intend to interfere with vested property rights, or to alienate property without compensation.

The Universal Declaration of Human Rights states (Article 17) that

  1. Everyone has the right to own property alone as well as in association with others.
  2. No one shall be arbitrarily deprived of his property.

These provisions are not reproduced in either the ICCPR or ICESCR.

However, ICCPR Article 26 requires the "equal protection of the law". This provision states

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The ICCPR thus provides wide ranging protection regarding discrimination affecting property rights. There are also provisions regarding discrimination affecting property rights in CERD (Article 5) , the CRPD (Article 12.5), and CEDAW (which  rerefers to discrimination in "the political, economic, social, cultural, civil or any other field" and refers specifically to equality in the administration of property in Article 15.

None of the human rights instruments subsequent to the Universal Declaration, however, refer to interference with property rights, outside of discrimination issues. (Notoriously, there has been large scale interference with property rights in modern AUstralian history involving discrimination against Aboriginal and Torres Strait Islander peoples.)

In common with the Australian Constitution, the human rights treaties do not contain a more general "due process" clause such as is contained in the United States Constitution. 

As a constitutional provision invalidating legislative action, the due process clause of the US Constitution, as interpreted in Dred Scott v. Sandford, 60 U.S. 393 (1857), notoriously served to privilege the property "rights" of slave owners above the rights and freedoms of enslaved human beings (until Dred Scott was reversed by the expenditure of blood in the Civil War and resulting actions).

The due process clause of the US Constitution. as applied to cases involving economic regulation in the late 19th and early 20th century, has also been strongly  criticised as giving the judicial branch of government power over matters more appropriately decided by elected representatives. For example, Lochner v. New York, 198 U.S. 45 (1905) saw the U.S. Supreme Court invalidating a New York State law which limited the working week to 60 hours - on the basis that this violated freedom of contract, and thus the due process clause of the US Constitution.

As a principle of interpretation of legislation,  and as a component of scrutiny of human rights appropriately combined with other human rights principles, however,  a due process approach might be regarded as less prone to dangerous and oppressive results than it has been at times as a constitutional right, and more useful as a means of democratic accountability.

The body of administrative law (both in its common law origins and as reflected in legislation), reflects the substance of a due process approach. Consideration might be appropriate of how the same approach could be incorporated within human rights scrutiny regarding legislation.

Limitation of legal professional privilege

The "common law Bill of rights" listed by Chief Justice Spigelman refers to legal professonal privilege in general terms.

ICCPR Article 14 refers to the right to legal representation (which would include legal professional privilege) only in the context of criminal trials. The common law approach apprears broader in this erspect

Rights against self incrimination

ICCPR Article 14 recognises the right of a person charged with a criminal offence not to be required to incriminate him or herself. The common law rights listed by  Chief Justice Spigelman are expressed as including a more general right against self incrimination. This appears a significantly broader right, applicable to people having the right to avoid self incrimination eiher as wtnesses in criminal proceedings against another person, or in non-criminal proceedings (such as coronial inquiries, inquiries by regulatory bodies, or inquiries by bodies such as anti-corruption or anti-crime commissions).  

Examples of application of the presumption against limitation of fundamental rights

Chief Justice French of the High Court of Australia has discussed examples of the appllication of the presumption against limitation of fundamental rights in "The Common Law and the Protection of Human Rights" :

  • Mabo v Queensland (no.2): legislation presumed not to have extinguished native title
  • Minister for Immigration and Citizenship v Haneef: "association" in Migration Act construed narrowly to limit effect on common law rights
  • Evans v New South Wales: regulation making power regarding World Youth Day found not to authorise a regulation directed to conduct causing "annoyance … to participants in a World Youth Day event"
  • Davis v Commonwealth: Provisions of the Australian Bicentennial Authority Act requiring permission from the Authority to make use of words such as "bicentenary", "bicentennial", "200 years", "Australia", "Sydney", "Melbourne", "Founding", "First Settlement"  in conjunction with the figures 1788, 1988 or 88 - found to exceed constitutional power by referenece to common law concern for freedom of expression.

Common law rights and parliamentary scrutiny

Much of the debate in Australia about legislative recognition of human rights has been about how far human rights in Australia are already protected by the role of Parliament and the common law.

The Commission regards the establishment of the Parliamentary Joint Committee on Human Rights in 2012, giving effect to the Human Rights (Parliamentary Scrutiny) Act 2011, as a very significant enhancement of the role of the Federal Parliament in human rights scrutiny.

The responsibilities of the Committee, and the requirements for legislaion to be accompanied by Statements of Compatibility with human rights, are defined by reference to seven major human rights treaties to which Australia is a party:

  • the International Covenant on Civil and Political Rights
  • the International Covenant on Economic, Social and Cultural Rights
  • the Convention on the Elimination of All Forms of Racial Discrimination
  • the Convention on the Elimination of All Forms of Discrimination against Women
  • the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • the Convention on the Rights of the Child
  • the Convention on the Rights of Persons with Disabilities.

This presents the Committee with a wide ranging mandate. Issues have also been raised within Parliament whether the mandate of the Committee should also include scrutiny of legislation regarding impact on rights from wider sources, and in particular common law rights.

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