Cameron Miranda
The common law is a rich source of human rights, with a long heritage of protecting human rights principles. Common law courts have the power to provide significant protection of human rights, including the rule of law, except where legislation specifically overrides this power. Common law recognition of rights generally lacks provisions contained in human rights treaties for obligations on governments to actively promote and protect human rights. However, common law principles do contain concepts intended to provide protection for children and people with disabilities in some areas. While the common law and the European Convention on Human Rights (ECHR) are distinct systems, they overlap and complement each other in protecting human rights. The ECHR sets out a broader range of rights than the common law, but the common law can still offer protection for human rights and has developed under the influence of the ECHR, absorbing some of its rights and protective techniques.
| Characteristics | Values |
|---|---|
| Common law principles contain concepts intended to provide protection for children and people with disabilities | |
| Common law recognition of rights | Lacks provisions contained in human rights treaties for obligations on governments to take active measures to promote and protect human rights |
| Common law courts have the power to provide significant protection of human rights principles | Rule of law |
| Common law rights overlap with the rights protected in international instruments and bills of rights | |
| Common law freedoms | Freedom of association, freedom from slavery, freedom of speech, opinion, religion, movement |
| Common law principles | Non-discrimination |
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What You'll Learn
Common law and the protection of fundamental freedoms
Australia is a country founded on the rule of law and has a strong tradition of respecting the rights and freedoms of every individual. Despite the absence of a Constitutional Bill of Rights, Australia's common law courts have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power.
Common law recognition of rights generally lacks the provisions contained in human rights treaties for obligations on governments to take active measures to promote and protect human rights. However, common law principles do contain concepts intended to provide protection for children and people with disabilities in some areas. For example, the right to a fair trial, freedom of association, and freedom from slavery (and possibly forced labour) are all included among fundamental common law freedoms.
The common law and the European Convention on Human Rights (ECHR) currently sit alongside each other as distinct, overlapping, and complementary systems for protecting human rights. Some rights are acknowledged by both common law and the ECHR, but the ECHR sets out a broader range of rights. While the common law can offer protection for human rights, it does not place equivalent limits on what Parliament can do.
In the absence of a specific legislative restriction that is consistent with the Constitution, the enjoyment of most common law rights and freedoms is not confined to Australian citizens. Common law rights overlap with the rights protected in international instruments and bills of rights, and a statute that encroaches on a traditional common law right will often also encroach on its related human right.
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Common law and the protection of freedom of speech
Freedom of speech is a principle that supports an individual's or community's right to express their opinions and ideas without fear of retaliation, censorship, or legal sanction. This right is recognised in international and regional human rights law, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples' Rights.
In Australia, despite the absence of a Constitutional Bill of Rights, common law plays a significant role in protecting human rights, including freedom of speech. The Australian Government recognises the importance of freedom of speech and believes it underpins the country's democracy. The common law principle holds that legislation should not infringe on fundamental rights and freedoms unless it expresses a clear intention to do so and the infringement is reasonable. This provides a substantial level of protection for freedom of speech, particularly concerning public affairs and political matters.
The historical context is important to understanding the role of common law in protecting freedom of speech in Australia. The Australian constitutional tradition inherited from Britain was not opposed to rights such as freedom of speech but was reluctant to grant judges the power to protect these rights from legislative interference. As a result, Australia's constitution-making process relied on other mechanisms for protecting rights, including common law and presumptions of statutory interpretation.
One well-established principle of statutory interpretation in Australian courts is the presumption that Parliament does not intend to limit fundamental rights unless it clearly states this intention. This presumption constitutes a significant protection for freedom of speech, as it sets a high bar for any legislative restrictions on this right. However, it is important to note that this presumption can be overridden by sufficiently clear wording in legislation.
While common law provides important protections for freedom of speech in Australia, it is not without its limitations. Common law recognition of rights may lack the explicit provisions found in human rights treaties, which outline obligations on governments to actively promote and protect human rights. Additionally, the interpretation of the limitations on freedom of speech due to harm and offence can be culturally and politically relative, as evident in the varying approaches taken by different countries.
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Common law and the protection of freedom from slavery
Common law plays a crucial role in protecting human rights, including the fundamental freedom from slavery. While international human rights treaties impose obligations on governments to actively promote and protect human rights, common law principles often overlap with these rights and provide additional safeguards.
In the context of slavery, common law has had a complex and evolving relationship with the issue. Historically, slavery was recognised as legal under common law in certain contexts, particularly in colonial settings. For example, in the case of Pearne v Lisle (1749), Lord Hardwicke held that slavery was not contrary to English law and was lawful in colonial Antigua.
However, a significant shift occurred with the landmark judgment in Somersett v Stewart (1772). In this case, Lord Mansfield stated that slavery was so "odious" that it could only be introduced by positive law, and as there was no such law in English legal tradition, he ordered the liberation of an enslaved person, granting them freedom. This decision set a powerful precedent, suggesting that freedom from slavery is indeed a fundamental common law freedom.
The impact of this case extended beyond England. In Scotland, for instance, Joseph Knight, a servant, sought freedom from his employer, arguing that setting foot in Scotland freed him from perpetual servitude, as slavery was not recognised in Scottish law. While the records do not indicate the basis for this claim, it is possible that the Mansfield decision influenced this case.
Despite these advancements, the recognition of freedom from slavery in common law has not always been consistent or universal. For instance, in the context of colonial territories, complex legal questions arose when slaves were brought to England, where the tradition of freedom protected by habeas corpus clashed with the recognition of slave ownership in colonies.
In conclusion, while common law has played a pivotal role in advancing the fundamental freedom from slavery, as evidenced by the Somersett v Stewart case, the protection it offers is not absolute and may be subject to legislative overrides and jurisdictional variations. Nonetheless, the recognition of freedom from slavery as a common law freedom sets an important precedent and contributes to the broader protection of human rights.
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Common law and the protection of children's rights
Common law principles contain concepts that aim to provide protection for children in some areas. For example, the right to personal liberty, as outlined in the 1772 Somersett v Stewart case, encompasses freedom from slavery and trafficking in persons. This case set a precedent that has been applied to protect children from modern slavery and trafficking.
In the UK, the Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone, including children, is entitled to. This Act incorporates the rights set out in the European Convention on Human Rights into domestic British law. The Equality Act 2010 also protects children, young people, and adults against discrimination, harassment, and victimization in relation to housing, education, clubs, the provision of services, and work.
The United Nations Convention on the Rights of the Child (UNCRC) is another important instrument that outlines the rights of children. It defines a child as everyone under 18, unless "under the law applicable to the child, majority is attained earlier". The UNCRC includes the right to privacy, the right to protection from exploitation, and the right to legal help and fair treatment if accused of breaking the law.
In addition to international law, common law also plays a role in protecting children's rights. For example, in Australia, common law courts have the power to provide significant protection of human rights principles, including those related to children's rights. This is despite Australia not having a Constitutional Charter or Bill of Rights, which is unusual among common law countries.
Furthermore, the British legal tradition, which forms the basis of Australian common law, relied on common law to define and protect individual rights and liberties. This approach was adopted by Australia during its constitution-making process, which explains the shortage of explicit statements of rights and guarantees in the Australian Constitution.
In conclusion, while international law plays a significant role in protecting children's rights, common law also contributes by providing additional protections and shaping the interpretation and application of those rights in specific contexts.
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Common law and the protection of people with disabilities
Common law principles contain concepts that aim to provide protection for people with disabilities in some areas. However, in some instances, this has led to further breaches of human rights due to relevant statutory provisions and a lack of appropriate administrative and policy settings. For example, in the interest of a fair trial, a person with a disability may be found unfit to plead to criminal charges and, as a result, be detained indefinitely without the courts intervening to remedy the obvious and severe breaches of the International Covenant on Civil and Political Rights (ICCPR) Article 9.
Common law, in the British legal tradition, has been central to defining and protecting individual rights and liberties, which has influenced Australia's constitution-making. Common law rights overlap with the rights protected in international instruments and bills of rights, influencing each other. While Australia does not have a Constitutional Charter or Bill of Rights, its common law courts have the power to provide significant protection of human rights principles, including the rule of law, unless legislation specifically overrides this power.
In Australia, the common law provides strong protections for freedom of speech related to public affairs and political matters. Additionally, it is presumed that Parliament does not intend to limit fundamental rights unless it clearly expresses this intention. This presumption constitutes a substantial level of protection for the "principle of legality".
In the United States, disability rights are protected by the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications. The ADA also applies to the United States Congress. The Voting Accessibility for the Elderly and Handicapped Act of 1984 ensures that polling places are physically accessible to people with disabilities during federal elections. Additionally, the Fair Housing Act requires housing providers to make reasonable exceptions to their policies and operations to provide people with disabilities equal housing opportunities.
At the international level, the Convention on the Rights of Persons with Disabilities outlines the obligations of States Parties to protect the rights of persons with disabilities. States Parties must recognize the equality of all persons before the law and prohibit discrimination on the basis of disability, guaranteeing equal and effective legal protection. They must also take all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including armed conflict, humanitarian emergencies, and natural disasters.
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Frequently asked questions
Common law in Australia protects human rights by upholding the rule of law, which is a fundamental principle in the country. It also protects rights by interpreting Acts of Parliament and regulations to minimise intrusion into rights and freedoms.
Freedom of association, freedom from slavery, and freedom of speech related to public affairs and political matters are some rights protected by common law in Australia.
The Australian Human Rights Commission Act 1986 established the Australian Human Rights Commission, which is responsible for monitoring and promoting human rights protection. The Commission also has responsibilities under various anti-discrimination Acts, such as the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984.
Common law and international human rights treaties like the European Convention on Human Rights (ECHR) are distinct but complementary systems for protecting human rights. While the ECHR outlines a broader range of rights, common law often overlaps with its principles and has been influenced by it.
Common law's ability to protect human rights is limited by the sovereignty of Parliament, which can qualify or extinguish rights and freedoms through legislation. Additionally, common law may not provide the same level of protection as statutory or constitutional provisions in certain areas, such as the right to a fair trial.
