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AUSTRALIAN HUMAN RIGHTS COMMISSION
Common law rights and human rightsscrutiny
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 Dean in the Teoh
case:
Where a statute or subordinate legislation is ambiguous, the courts should favour that constructionwhich 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?
Forner 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". Cases cited by Chief Justice Spigelman indicate that there are rebuttable
presumptions that Parliament did not intend:
to retrospectively change rights and obligations;
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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.)
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 Parliamenthas 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
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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 tothe 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
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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
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
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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.
Limitation of legal professional privilege
The "common law Bill of rights" listed by Chief Justice Spigelman refers to legal professional
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 appears broader in thiserspect
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 either as witnesses 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).
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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 byreferenece 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.
Resources
Use of the resources linked here in the development of this page is acknowledged:
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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, MelbourneUniversity 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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