![]() ![]() ġ.12 Taking the right to a fair trial as an example, Heydon said that rules found in certain statutes and in the common law ‘were worked out over a very long time by judges and legislators who thought deeply about the colliding interests and values involved in the light of practical experience of conditions in society to which the rules were applied’. ![]() ![]() Their makers seek, with some success, to make them generally coherent with each other and with the wider legal system. They are specifically adapted to the resolution of particular problems. He said that statutes and the common law protect rights often by ‘detailed and precise rules’ and vindicate ‘human rights directly and specifically’:Ĭommon law and statutory rules tend to be detailed. Whether the introduction of a bill of rights in Australia is desirable is widely debated, but it is not the subject of this Inquiry.ġ.11 In a 2013 speech, former Justice of the High Court of Australia, the Hon John Dyson Heydon AC QC, considered some of the benefits of protecting rights through statutes and the common law. ġ.10 To the extent that Australian law has protected and fostered rights and freedoms, it has long been statutes and judge-made law that have done so, rather than more broadly expressed bills of rights or international conventions on human rights. In the modern period, and subject to certain limitations which, for most persons, were of not the least importance, individuals could worship as they pleased, hold whatever meetings they pleased, participate in political activities as they wished, enjoy a very extensive freedom of expression and communication, and be wholly unthreatened by the grosser forms of interference with personal liberty, such as officially sanctioned torture, or prolonged detention without trial. ġ.9 These freedoms were also widely respected in the modern period: ![]() In normal times, Brian Simpson writes, ‘when there was neither war, nor insurrection, nor widespread problems of public order’,įew would deny that people in the United Kingdom enjoyed a relatively high level of personal and political freedom, and had done so earlier in the eighteenth and nineteenth centuries, though most of the population could only participate very indirectly, if at all, in government. The UK Human Rights Act, for example, was only enacted in 1998.ġ.8 In his book Human Rights and the End of Empire, English legal historian A W Brian Simpson wrote about the widely held assumption that, before international conventions on human rights, human rights were in the UK ‘so well protected as to be an example to the world’. ġ.7 Although Australia does not have a bill of rights, other common law countries with strong traditions of civil and political rights have not had bills of rights until comparatively recently. We do so against the backdrop of the supremacy of Parliament which can, by using clear words for which it can be held politically accountable, qualify or extinguish those rights and freedoms except to the extent that they may be protected by the Constitution. Many of the things we think of as basic rights and freedoms come from the common law and how the common law is used to interpret Acts of Parliament and regulations made under them so as to minimise intrusion into those rights and freedoms. The Hon Robert French, Chief Justice of the High Court of Australia, has said: They predate many international conventions and declarations that now also protect these rights-such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).ġ.6 ‘The common law is a vibrant and rich source of human rights,’ Professors George Williams and David Hume write in their book, Human Rights under the Australian Constitution. Many have been recognised by courts in Australia, England and other common law countries for centuries. Rights and freedoms under the common lawġ.5 The rights, freedoms and privileges listed in the Terms of Reference have a long heritage.
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