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 Constitution?

• 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 Constitution?

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 barbarians’

• Also desire for free tradeand defence and sharing of resources such as water

Not a Constitution of the PeopleLowitja 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 Australians.”

Rights protections in the Constitution

Only 4 express individual rights protections:1. Compulsory acquisition of property by

federal government must be on just terms2. 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 indirect!

• 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 parliament)

• 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 self-incrimination

Hammond v CommonwealthThe 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 interpretation

• 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 rights.

Test case – Al Kateb

• Italy • Australia

Al Kateb

• Stateless Palestinian asylum seeker

• Spent four years in detention

• Unsuccessful in seeking asylum

• No country willing to take him

• Could he be held in immigration detention indefinitely (ie forever)?

Al KatebMajority 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 detention!!

Other common law rules of statutory interpretation

• 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

• http://www.youtube.com/watch?v=tNGjFLNYgok

Amending the Constitution in light of 21st century values

• Very difficult – only 8 successful referendums out of 42!!

• Constitution makes little reference to Indigenous people:

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 other than the aboriginal race in any State,aboriginal race in any State, for whom it is deemed necessary to make special laws;