Cameron Miranda
In Australia, common law rights are inherited from the British legal system and are a key principle of the country's democratic system of government. These rights are distinct from laws made in Parliament, as they are often referred to as 'judge-made' laws, formed when judges make decisions in court. Common law rights in Australia cover a range of areas, including freedom of speech, opinion, religion, association, and movement. Notably, Australia does not have a Bill of Rights, but its Constitution and legislation provide safeguards for protecting human rights.
| Characteristics | Values |
|---|---|
| Common law rights are inherited from British courts | Freedom of speech, opinion, religion, association, and movement |
| Common law is often called "judge-made" law | Right to housing, healthcare, sanitation, and education |
| Common law principles contain concepts intended to provide protection for children and people with disabilities | Right to practice a religion, meet in groups, express opinions, and protest |
| Common law freedoms include freedom from slavery and trafficking | Right to privacy |
| Common law rights are recognised and protected by the Australian Constitution and legislation | Right to freedom for individuals to discuss and debate political issues |
| Common law provides strong protections for freedom of speech related to public affairs and political matters |
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What You'll Learn
Common law vs. human rights treaties
Common law in Australia is inherited from the United Kingdom and is often called 'judge-made' law, distinguishing it from laws made in Parliament. Common law principles in Australia cover issues dealt with by the International Covenant on Civil and Political Rights (ICCPR) Article 9, such as the right to personal liberty, which includes freedom from slavery and trafficking in persons.
However, common law recognition of rights generally lacks the provisions contained in human rights treaties, which outline obligations on governments to actively promote and protect human rights. Human rights treaties, such as the Universal Declaration of Human Rights (UDHR), have paved the way for the adoption of more than seventy human rights treaties globally and regionally. The UDHR, along with the International Covenant on Civil and Political Rights and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights, form the so-called International Bill of Human Rights.
In Australia, the absence of a Constitutional Bill of Rights has sparked debate about how far human rights are protected by the role of Parliament and common law. The establishment of the Parliamentary Joint Committee on Human Rights in 2012 was seen as a significant enhancement of the Federal Parliament's role in human rights scrutiny. This committee's responsibilities are defined by reference to seven major human rights treaties to which Australia is a party, including the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination.
While common law principles may cover certain human rights issues, human rights treaties provide a more comprehensive framework for the protection and promotion of human rights, with clear obligations on governments to respect, protect, and fulfil these rights.
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Freedom from slavery
Australia does not have a Constitutional Charter or Bill of Rights, which is unusual among common law countries. However, 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.
The right to freedom from slavery prohibits people from being held in conditions in which the powers attaching to the right of ownership are exercised. This is defined in the International Convention for the Suppression of the Slave Trade and Slavery of 1926. This right is further supported by the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which defines debt bondage as a condition arising from a pledge by a debtor of their personal services as security for a debt.
The right to freedom from forced labour requires that a person be free from work or service compelled under the threat of penalty, which the person has not offered to perform voluntarily. This does not include work normally required of a person who is under detention or conditional release from detention, any service of a military character, or any national service required by law of conscientious objectors.
While Australia does not have a Bill of Rights, its Constitution and legislation provide safeguards for human rights, and the Australian Human Rights Commission has developed a model for a national Human Rights Act.
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Freedom of speech
Australia does not have a Bill of Rights, but its Constitution and legislation provide safeguards for human rights. The Australian Human Rights Commission Act 1986 outlines the responsibilities of the Australian Human Rights Commission as the Commonwealth agency responsible for monitoring and promoting human rights protection.
The Australian Constitution does not explicitly protect freedom of expression, but the High Court has inferred a freedom of political communication from sections 7 and 24 of the Constitution. These sections require that members of Parliament be "directly chosen by the people". The High Court found that for this to be an informed choice, there must be free access to relevant political information. This freedom of political communication is seen as a freedom from government restraint, rather than a right conferred directly on individuals.
The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. The ICCPR recognises that the freedom of opinion and expression includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art, or through any other media. However, this freedom may be subject to restrictions, as outlined in Article 19(3) of the ICCPR, which states that the exercise of these freedoms carries duties and responsibilities and may be subject to formalities, conditions, restrictions, or penalties as are prescribed by law and are necessary in a democratic society.
The Australian Human Rights Commission has developed a model for a national Human Rights Act, which would provide further protection for human rights, including freedom of speech and expression.
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Freedom of association
Australia does not have a Bill of Rights, but it does have a common law system that protects certain fundamental freedoms, including freedom of association. This freedom is also protected by statute and, to a lesser extent, by the national Constitution.
The right to freedom of association includes the right to form and join trade unions for the protection of one's interests. This is an essential component of democracy, as it empowers individuals to express their political opinions, engage in cultural and social activities, observe religious beliefs, and elect leaders to represent their interests.
While there are no explicit restrictions on this freedom in common law, it may be limited by statute in the interests of national security, public safety, public order, public health, or the protection of the rights and freedoms of others.
The Australian Human Rights Commission has developed a model for a national Human Rights Act, which would further protect this freedom. As it stands, however, the protection of freedom of association in Australia is largely dependent on cultural norms and historical traditions that underpin Australian social and political life.
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The right to privacy
Australia does not have a Bill of Rights, but its Constitution and legislation provide some safeguards for human rights. The Australian Human Rights Commission has developed a model for a national Human Rights Act.
The Australian Privacy Principles set out broad principles that are binding on government agencies and large companies. Most Australian states and territories have enacted legislation to protect information privacy.
Common law in Australia provides limited personal privacy protections through trespass and defamation laws. For example, in Ettingshausen v Australian Consolidated Press Ltd (1991) 23b NSWLR 443, a well-known rugby player successfully took defamation action regarding the publication of a photograph that revealed his genitals. This was, in essence, a claim for breach of privacy.
In Doe v Australian Broadcasting Corporation [2007] VCC 281, the ABC published information that identified the plaintiff as a victim of rape by her husband, contrary to the Judicial Proceedings Reports Act 1958 (Vic). Justice Hempel found the defendant liable in tort for invasion of privacy, relying on the High Court's comments in the Lenah Game Meats case.
In 2008, the Court of Appeal of the Supreme Court of Victoria held that "damages should be available for breach of confidence occasioning distress, either as equitable compensation, or under Lord Cairns' Act." This refers to the equitable doctrine of breach of confidence, which differs from a tort of invasion of privacy but has some applications when privacy has been invaded.
In 2009, the New South Wales Law Reform Commission released a report, "Invasion of Privacy" (Report 120), recommending that the Civil Liability Act 2002 (NSW) be amended to provide a statutory cause of action for invasion of privacy. Various law reform commissions have made similar recommendations.
In 2014, the Australian Law Reform Commission (ALRC) tabled the final report, "Serious Invasions of Privacy in the Digital Era" (ALRC Report 123), after a change of government. There has not been a formal response from the Australian government.
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Frequently asked questions
Common law rights in Australia are rights derived from the common law system, which is a collection of laws made by judges in courts (also known as "judge-made law") rather than laws made in Parliament. Common law in Australia was inherited from the United Kingdom and its courts.
Some examples of common law rights in Australia include freedom of speech related to public affairs and political matters, and the freedom from slavery and trafficking in persons. In the case of *Mabo and Others v Queensland (No 2) (1992)*, the High Court recognised that Aboriginal and Torres Strait Islander peoples have rights to their land that existed before the arrival of the British and continue today.
While common law rights are derived from the common law system, human rights in Australia are recognised and protected through various sources, including international law, federal laws, the Constitution, and common law. Human rights treaties provide more detailed provisions outlining the obligations of governments to actively promote and protect human rights, whereas common law principles may lack such explicit provisions.
