13.3 Rights Protection: Common Law

precedent

a principle established in a legal case that is followed by courts in later cases where the material facts are similar

common law rights

freedoms established by judged when deciding on cases

ultre vires

“beyond the powers”; a law made beyons the powers of the parliament

codify (codification)

to collectt all law on one topic together into a single statute

abrogate (abrogation)

to abolish or cancel a law (e.g. the cancellation of common law by passing an Act of Parliament)

ways human rights are protected by common law

• throught the courts establishing new human rights- independent of the human rights protected by state law

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

• through the court determining the validity of human rights legislation

how is common law established or developed 

through decisions made by judges in state and federal courts over years 

when making decisions in cases judges may…

establish a new legal principle that protects human rights

examples of common law rights that have been established by Australian courts

• the right to silence

• the right to fair trial

• the right to legal representation

• the right of transgender people to marry

courts are able to 

strengthen and uphold the various Human rights protected under statute law - including the Human Rights Charter 

how do courts protect the human rights of australians

by using their power to declare Acts of Parliament invalid if they are made outside or beyond parliament’s law-making powers/ jurisdiction

High Court invalid legisation declaration

if it breaches a right protected by the Australian Constitution

rights that cannot be overridden by parliament

High Court judgements 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 area 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 gaps in the law to parliament that protects human rights, which may encourage parliament to change the law to further protect rights

• historically, courts have been able to protect human rights and parliament has not overly interfered with common law rights by abrogating them

weaknesses of common law in protectin 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, leaving it up to parliament to protect those rights

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