Common law protections

The Australian Common Law and
its protection of human rights
Dr Laura Grenfell
Seminar Plan
• Why doesn’t the Australian Constitution
include a Bill of Rights?
• What rights are protected by the Australian
• In what ways do Australians rely on the
common law to protect their rights?
• Do the Constitution and the common law
protect the rights of Indigenous people ?
The Australian Constitution 1901
• Drafted in the 1890s – time of federation
• Considered one of the ’most democratic’
constitutions in the world for its time.
• Drafted solely by white men (elected)
• Why did the founding fathers not follow the
US example and include a bill of rights in the
Labour practices and tensions - 1890s
Kanakas – cane field workers (sometimes
indentured) from the Pacific Islands
Chinese workers in the Victorian goldfields
Racism, rights and the Constitution
• Openly discussed by members of the
constituent assembly that a Bill of Rights was
undesirable because it might protect
“chinamen, Japanese, Hindoos and other
• Also desire for free trade
and defence and sharing of
resources such as water
Not a Constitution of the People
Lowitja O’Donogue
“It says very little about
what it is to be Australian.
It says practically nothing
about how we find
ourselves here – save being
an amalgamation of former
colonies. It says nothing of
how we should behave
towards each other as
human beings and as
Rights protections in the Constitution
Only 4 express individual rights protections:
1. Compulsory acquisition of property by
federal government must be on just terms
2. Freedom of religion (state cannot establish a
religion or a religious test for public service)
3. Trial by jury (only some offences)
4. Freedom from discrimination on the basis of
state residence
Right to vote?
• Constitution does not expressly say that
citizens have a right to vote (but all citizens
must vote!)
• Australian courts say that such a right to vote
is implied (‘implicato’) through our system of
representative government - this is very
• Legislation restricts some people
from voting eg people in prison
Australian Constitution
• Few express individual rights
• Some implied rights – but when courts imply rights,
this is very controversial (unelected judges vs
• Human rights cases are difficult to follow – they are
generally about the independence of judicial power
and the judicial process.
• This means that Australians must often look to the
common law for protection.
• Constitution was drafted in the context of the
common law.
Common law protections - examples
the privilege against self-incrimination
legal professional privilege
access to the courts
access to legal counsel when an indigent (poor)
person is accused of a serious crime
immunity from interference with vested property
rights including native title rights
immunity from deprivation of liberty except by law
freedom of speech and movement and
procedural fairness when affected by the exercise of
public power.
Common law privilege against selfincrimination
Hammond v Commonwealth
The privilege against self-incrimination is part of our
legal heritage where it became rooted as a response
to the horrors of the Star Chamber. In the United
States it is entrenched as part of the Federal Bill of
Rights. In Australia is it part of the common law of
human rights. … the privilege is presumed to exist
unless it is excluded by express words or necessary
implication, that is by unmistakeable language.
Common law rules of statutory
• If the parliament intends to deprive someone of their
common law right, it must express its intention to do so
with irresistable clearness.
1908 test case of Minahan,
an Australian-born Chinese man
denied re-entry to Australia
on the basis of discriminatory
dictation tests designed
to restrict Asian immigration.
Common law rules of statutory
interpretation – Coco v The Queen
The insistence on express authorization of an abrogation or
curtailment of a fundamental right, freedom or immunity
must be understood as a requirement for some manifestation
or indication that the legislature has not only directed its
attention to the question of the abrogation or curtailment of
such basic rights, freedoms or immunities but has also
determined upon abrogation or curtailment of them. 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. General words will rarely be sufficient for that
purpose if they do not specifically deal with the question
because, in the context in which they appear, they will often
be ambiguous on the aspect of interference with fundamental
Test case – Al Kateb
• Italy
• Australia
Al Kateb
• Stateless Palestinian asylum
• Spent four years in
• Unsuccessful in seeking
• No country willing to take
• Could he be held in
immigration detention
indefinitely (ie forever)?
Al Kateb
Majority of the High Court:
As long as the detention is for the purpose of
deportation or preventing aliens from entering
Australia or the Australian community, the justice or
wisdom of the course taken by the Parliament is not
examinable in this or any other domestic court. It is
not for courts, exercising federal jurisdiction, to
determine whether the course taken by Parliament is
unjust or contrary to human rights.
Result: Mr Al Kateb could be held indefinitely in
Other common law rules of statutory
• Presumption that laws that affect substantive rights
do not operate retrospectively
• Presumption that parliament intends to legislate
consistently with its international obligations (eg
with human rights treaties and ILO conventions)
 Can these common law rules collectively be
understood as a Common Law Bill of Rights? This is
the view of (former NSW Chief Justice) Spigelman.
Do I agree with Spigelman?
• What are common law rights?
• Common law rights and freedoms can be
easily extinguished by Parliament !
• The history of the common law!
Human Rights influence on the
common law
Mabo v Queensland (No2) (1992)
The common law does not necessarily conform with
international law, but 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. A
common law doctrine founded on unjust
discrimination in the enjoyment of civil and political
rights demands reconsideration.
 Common law is constantly evolving
Megan Davis
Amending the Constitution in light of
21st century values
• Very difficult – only 8 successful referendums out of
• Constitution makes little reference to Indigenous
Section 51 (26)
The Parliament shall, subject to this Constitution, have
power to make laws for the peace, order, and good
government of the Commonwealth with respect to:
(xxvi) the people of any race, other than the
aboriginal race in any State, for whom it is deemed
necessary to make special laws;