13.3 Common Law

Protecting rights 

• Judges can play a significant role in protecting rights when resolving disputes in which there has been an alleged breach of human rights.

• They also have an important role in interpreting the meaning of legislation that protects rights.

• When making a decision, they may establish a precedent that protects human rights.

• These are known as common law rights

Examples of Protecting rights 

• Some of the human rights that have been established by the courts overlap with human rights contained in statute law.

• E.g. the right to a fair trial

• We will explore three ways human rights can be protected through common law:

• Through the courts establishing new human rights, independent of the human rights protected by statute law

• Through the courts recognising and upholding human rights contained in statute law

• Through the courts determining the validity of human rights legislation

Establishing new human rights 

• Some examples of common law rights that have been established by the courts include:

• The right to silence

• The right to a fair trial

• The right to legal representation

• The right of transgender people to marry

The right to silence 

• Means that a person accused of committing a criminal offence does not need to answer any questions and does not need to provide evidence in court.

• Helps protect against self-incrimination

• Over the years, a number of cases have reinforced common law right to silence

• RPS v The Queen – High Court upheld the accused’s right to silence and their right to not have their silence interpreted as a partial admission of guilt

• Court’s ruling strengthened the common law right to silence.

The right to a fair trial 

• Protected by statute and common law (Victorian Human Rights Charter).

• A court may stay (stop) a trial from proceeding if it considers the trial to be unfair.

The right to legal representation 

• Also protected by both statute law and common law.

• In some instances, a judge has adjourned a trial to give an accused time to access legal representation.

• The right of an accused to have legal representation was recognised by the High Court in Dietrich v The Queen.

The right of transgender people to marry 

• In a 2003 case, the Family Court of Australia had to consider whether a person who was born as female and who had full gender reassignment surgery to transition to male, was considered to be a man for the purposes of Australian marriage laws (which at the time banned same-sex marriage).

• The ruling in this case was important in relation to establishing the rights of transgender people to marry.

Other common law rights 

• The right to humane treatment when denied liberty

• The right to freedom of movement

• The right of First Nations people to not be denied their connection to their Country

• The right to freedom of through, conscience and religion or belief

Recognising and upholding human rights 

• In addition to creating common law rights, the courts can also recognise, uphold and strengthen the various human rights protected under statute law.

• These include the right to equality before the law, the right to effective protection against discrimination and the right to humane treatment when deprived of liberty.

Determining the validity of human rights legislation 

• Courts can protect human rights by using their power to declare Acts of Parliament invalid.

• If they are made outside or beyond parliament’s law-making powers (i.e. made ultra vires)

• For example, if the Commonwealth Parliament passes legislation that is beyond it’s law making powers (outlined in the Constitution) the party who alleges their rights have been breached may challenge the legislation in the High Court.

Codification or abrogation of court decisions 

• Court judgements that establish, uphold or recognise human rights can be codified by parliament.

• As the supreme law-making body, parliament may abrogate human rights that have been established in common law.

• Cannot override rights established in High Court judgments involving the interpretation of the Constitution.

Strengths of common law in protecting human rights 

• Courts are independent of parliament and can establish precedent free from political pressures

• Courts can make decisions to establish human rights in areas where parliament has not established human rights 

• Courts can infer human rights without needing to consider how those rights may need to be limited 

• Courts can highlight to parliament gaps in the law that protects human rights, which may encourage parliament to change the law to further protect rights

Weaknesses of common law in protecting human rights 

• Common law rights are not always easy to define or identify (as opposed to statutory rights)

• Courts must wait for a case to come before them to be able to declare the existence of human rights 

• Parliament, as the supreme law- making body, can abrogate common law rights 

• Often courts are reluctant to recognise certain human rights (eg right to privacy), leaving it up to parliament to protect those rights 

• Judges are limited in applying the law to case that is before them, and cannot extend their decision to human rights or issues that are not in dispute in the case