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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.)
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; 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, however, there may also be other 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 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.
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 the case - public policy having changed by legislative measures, by the actions of common law courts themselves, and the abandonment of military, administrative and legislative support for slave trading activities, such as those of the Royal African Company . 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 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
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. In common with the Australian Constitution, the human rights treaties do not contain a "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.
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.
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.
Resources
Use of the resources linked here in the development of this page is acknowledged:
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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