Common law rights, human rights scrutiny and the rule of law
Australia is unusual among common law countries in not having a 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 legislation specifically overrides this power.
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".
InElectrolux 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.
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 with 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.
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.
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
Freedom of association would appear to be included in common law, considering 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.
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) appears to be included among fundamental common law freedoms.
A right to personal liberty appears naturally to encompass freedom from slavery and trafficking in persons.
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 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 legislation 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.
- The Common Law Bill Of Rights (PDF) Hon J J Spigelman AC: 2008 Mcpherson Lectures: Statutory Interpretation & Human Rights
- The Common Law and the Protection of Human Rights (PDF), Chief Justice Robert French, 4 September 2009, Sydney
- Protecting Human Rights Without a Bill of Rights (PDF)Chief Justice Robert French, 26 January 2010
- The Common Law principle of legality in the Age Of Rights (PDF): D. Meagher, Melbourne University Law Review 2011
- Common Law v Human Rights: Which Better Protects Freedoms? J.Southalan, Australian Lawyers for Human Rights 2011
- Judges and Human Rights: Hon Justice Maxwell, President of the Victorian Court of Appeal, May 2012
- Law Council of Australia Rule of Law Principles page
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