Rights Protection: Common Law (VCE SSCE Legal Studies): Revision Notes
Rights protection: common law
In Australia, common law plays a vital role in protecting human rights. Common law refers to legal principles developed over time through judicial decisions in state and federal courts, rather than through legislation passed by parliament.
When resolving disputes involving alleged human rights breaches, judges can establish legal principles (known as precedents) that protect rights. These court-established protections are called common law rights.
Understanding the distinction: Common law rights differ from statutory rights in their origin. While statutory rights are explicitly written into legislation by parliament, common law rights emerge from judicial decisions and are established through the doctrine of precedent. This means judges create these protections by interpreting and applying the law to specific cases.
Key terms:
- 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 judges when deciding on cases
Many common law rights overlap with rights protected by statute law. For example, the right to a fair trial is protected by both common law precedents and legislation such as the Victorian Human Rights Charter.
Three ways courts protect human rights through common law
Courts protect human rights in Australia through three main approaches:
- Establishing new human rights – Courts create common law rights independent of statute law
- Recognising and upholding statutory rights – Courts interpret and enforce rights contained in legislation
- Determining the validity of legislation – Courts review whether laws exceed parliamentary powers
These three methods represent the core mechanisms through which the judicial system safeguards human rights. Understanding how each method operates is essential for analysing the effectiveness of common law protection in Australia.
Establishing new human rights
Judges can establish common law rights when resolving cases. These precedents then protect similar rights in future cases. Australian courts have established several important common law rights, including:
- Right to silence
- Right to a fair trial
- Right to legal representation
- Right of transgender people to marry
Right to silence
The right to silence protects accused persons from self-incrimination. This means someone charged with a criminal offence does not need to answer questions (except providing name and address in certain circumstances) or give evidence in court.
Case Example: RPS v The Queen (2000)
In this High Court case, the accused exercised their right to silence during trial. The prosecution suggested this silence indicated guilt.
High Court ruling:
- The accused had a right to remain silent
- Their silence could not be interpreted as a partial admission of guilt
- The prosecution cannot use an accused's unwillingness to dispute evidence as proof against them
Significance: This decision strengthened the common law right to silence and influenced the New South Wales Parliament to modify the Evidence Act 1995 (NSW) to clarify protections around silence.
Right to a fair trial
The right to a fair trial ensures accused persons receive a hearing before a competent, independent and impartial court. This right is protected by both statute law (such as the Victorian Human Rights Charter) and common law. Courts can stay (stop) proceedings if they determine a trial cannot be fair.
Case Example: 2022 Sexual Assault Trial
In October 2022, a high-profile sexual assault trial was abandoned after juror misconduct prevented a fair trial.
Facts:
- A juror took external research materials (academic articles on sexual assault) into the jury room
- The judge had instructed jurors at least 17 times not to conduct their own research
- The external material included information about false complaints
Outcome:
- The judge dismissed the jury and aborted the trial
- The decision protected the right to a fair trial by ensuring the verdict would be based only on evidence presented in court
- Both parties must have opportunity to address all evidence
- While a retrial was scheduled, the prosecution ultimately decided not to proceed
Key principle: This case demonstrates how courts actively protect the right to a fair trial by stopping proceedings when fairness is compromised.
Right to legal representation
The right to legal representation ensures accused persons can have a lawyer represent them during criminal trials. This right is recognised in both statute law (such as the Victorian Human Rights Charter) and common law. Judges can adjourn (pause) trials to allow accused persons time to obtain legal representation.
Case Example: Dietrich v The Queen (1992)
This landmark High Court case established important protections for legal representation in serious criminal cases.
Facts:
- In December 1986, a man was charged with smuggling 70 grams of heroin into Australia
- He applied to Victoria Legal Aid for assistance but was told he would only receive help if he pleaded guilty
- The accused refused to plead guilty and went to trial without legal representation
- He was found guilty on three charges and imprisoned
- After unsuccessful appeals in lower courts, he appealed to the High Court
High Court ruling:
- The accused had a right to a fair trial, which was breached due to lack of legal representation
- The Court upheld principles from the International Covenant on Civil and Political Rights (1966)
- Individuals charged with serious offences have a common law right to legal representation
- Trial judges can delay proceedings until an accused charged with a serious offence has a lawyer
Impact: This decision established a crucial precedent protecting the right to legal representation for serious criminal matters.
Key term:
- Appeal: an application to have a higher court review a ruling (decision)
Right of transgender people to marry
In 2003, the Family Court of Australia established important rights for transgender people through a landmark marriage case.
Case Example: Attorney-General for the Commonwealth v Kevin & Jennifer (2003)
Facts:
- Kevin and Jennifer married in 1999
- Kevin was registered as female at birth but underwent gender reassignment surgery in 1997 to transition to male
- The Commonwealth Government challenged the marriage's validity through the Attorney-General
- The government argued Kevin was not a man for purposes of the Marriage Act 1961 (Cth)
- At that time, same-sex marriages were not recognised in Australia
Court ruling:
- The Family Court initially validated the marriage in October 1999
- The Full Court of the Family Court dismissed the government's appeal in 2003
- The Court ruled that "man" in the Marriage Act includes post-operative transgender persons
- This established the right of post-operative transgender people to lawfully marry in Australia
Historical significance: This decision expanded human rights protections for transgender people, preceding the Marriage Act amendments in 2017 that allowed marriage equality for all people regardless of sex, gender or gender identity.
Other common law rights
Australian courts have established or strengthened several other common law rights, including:
- Right to humane treatment when denied liberty (e.g. in prison or lockdown)
- Right to freedom of movement
- Right of First Nations people to maintain connection to Country
- Right to freedom of thought, conscience, religion or belief (with lawful exceptions)
The development of common law rights is an ongoing process. As society evolves and new human rights issues emerge, courts continue to establish and refine protections through their decisions in cases brought before them.
Recognising and upholding statutory rights
Beyond creating common law rights, courts also interpret and enforce human rights contained in legislation. This includes rights protected under the Victorian Human Rights Charter, such as:
- Right to equality before the law
- Right to effective protection against discrimination
- Right to humane treatment when deprived of liberty
Case Example: Certain Children v Minister for Families & Children (2016) – Barwon Prison Case
This case demonstrates how courts uphold statutory human rights protections.
Facts:
- In November 2016, approximately 40 teenage offenders were transferred to Barwon Prison, a maximum-security adult facility
- The transfer followed riots at the Melbourne Youth Justice Centre that damaged the facility
- Children were allegedly locked in cells for up to 23 hours daily
- They were reportedly handcuffed during their one hour outside cells
- Some children allegedly suffered bruising from excessive force by security officers
Government's position:
- All youth facilities were full after the riots
- Barwon Prison was used for "emergency accommodation"
- Young offenders were housed in a section completely separate from adult prisoners
Supreme Court ruling (Justice Garde):
- The decision to transfer youth offenders to Barwon Prison was unlawful
- The decision failed to consider children's rights under the Children, Youth and Families Act 2005 (Vic) and the Human Rights Charter
- Locking children in cells (solitary confinement) for extended periods breached their right to humane treatment when deprived of liberty under the Human Rights Charter
- The Court of Appeal upheld this decision
Broader significance: The Victorian Ombudsman later referred to this case when examining whether lockdown of public housing tower residents during COVID-19 breached their rights to protection against cruel, inhuman and degrading treatment, and their right to humane treatment when deprived of liberty.
Determining the validity of human rights legislation
Courts protect human rights by exercising their power to declare Acts of Parliament ultra vires (invalid) if they exceed parliamentary law-making powers.
Key term:
- Ultra vires: a Latin term meaning "beyond the powers"; a law made beyond (i.e. outside) the powers of the parliament
When the Commonwealth Parliament passes legislation beyond its constitutional powers, parties alleging human rights breaches can challenge the legislation in the High Court of Australia. The High Court can declare legislation invalid if it was made outside the Commonwealth Parliament's law-making powers outlined in the Australian Constitution.
Critical principle: Parliament cannot override High Court rulings on constitutional matters. This gives the High Court ultimate authority in determining whether legislation exceeds constitutional boundaries, providing a crucial safeguard against potential parliamentary overreach.
Case Example: Palmer v Western Australia (2021) – Border Closures Challenge
This case examined whether COVID-19 border restrictions breached constitutional rights.
Facts:
- In May 2020, businessman Clive Palmer challenged Western Australia's border closures implemented to control COVID-19 spread
- Palmer claimed the closure breached section 92 of the Australian Constitution, which guarantees that "trade, commerce, and intercourse" (travel) between states shall be absolutely free
- The Western Australian Government argued it had power under the Emergency Management Act 2005 (WA) to implement emergency measures to control a "plague or epidemic"
High Court ruling:
- The Western Australian Government had authority to impose border restrictions
- The burden on interstate movement was "suitable" or reasonably justified to prevent virus spread into Western Australia
- The restrictions were appropriate to protect health and life
- Palmer's challenge was dismissed
Key principle: This case demonstrates the High Court's role in balancing human rights (freedom of movement) against public health protections during emergencies.
Codification and abrogation of court decisions
The relationship between courts and parliament involves two key concepts that demonstrate the interplay between judicial and legislative branches:
Codification
Codify (codification): to collect all law on one topic together into a single statute
Parliament can codify court judgments by passing legislation that reinforces and endorses legal principles established by courts. This confirms and enshrines common law rights in statute form.
Example of codification in action: The Victorian Parliament codified principles from Dietrich v The Queen through the Criminal Procedure Act 2009 (Vic), which now:
- Allows courts to stay (stop) proceedings involving serious criminal offences to allow accused persons to obtain legal representation
- Permits courts to order Victoria Legal Aid to provide representation if the accused cannot afford it and a fair trial requires representation
Similarly, the right to silence is now partially contained in statute law.
Abrogation
Abrogate (abrogation): to abolish or cancel a law (e.g. the cancellation of common law by passing an Act of Parliament)
As the supreme law-making body, parliament can abrogate (cancel) common law rights by passing legislation that overrides judicial decisions.
Limitation on parliamentary power: While parliament can abrogate most common law rights, it cannot override High Court judgments involving interpretation of the Australian Constitution. Constitutional matters are beyond parliamentary modification, ensuring fundamental constitutional protections remain intact.
Strengths and weaknesses of common law protection
Strengths of common law in protecting human rights
Judicial independence: Courts operate independently of parliament and can establish precedents free from political pressures. This allows judges to make decisions based on legal principles rather than political considerations.
Filling legislative gaps: Courts can establish human rights in areas where parliament has not yet legislated. This allows the legal system to respond to emerging rights issues without waiting for parliamentary action.
Flexible rights development: Courts can recognise human rights without needing to consider practical limitations or implementation details. Judges focus on legal principles and can develop rights incrementally through cases.
Highlighting legal gaps: Court decisions can identify gaps in statutory protection, potentially encouraging parliament to pass legislation that further protects rights. Judicial rulings often spark legislative reform.
Historical effectiveness: Courts have successfully protected human rights over time, and parliament has generally respected common law rights without excessive interference through abrogation.
Weaknesses of common law in protecting human rights
Unclear definition: Common law rights are not always easy to define or identify compared to rights explicitly stated in legislation. The boundaries of these rights may be uncertain until tested through litigation.
Reactive nature: Courts must wait for cases to come before them to declare human rights. They cannot proactively establish rights protections but must respond to disputes brought by parties.
Parliamentary supremacy: Parliament, as the supreme law-making body, can abrogate common law rights by passing legislation. This means common law protections are potentially vulnerable to legislative override.
Judicial reluctance: Courts are sometimes reluctant to recognise certain human rights (such as the right to privacy), preferring to leave these matters for parliament to address through legislation.
Limited scope: Judges must apply law to the specific case before them and cannot extend decisions to human rights or issues not in dispute in that case. This limits the breadth of protection in individual judgments.
Balancing act: The strengths and weaknesses of common law protection reflect a fundamental tension in the Australian legal system between judicial independence and parliamentary supremacy. Understanding this balance is crucial for evaluating the effectiveness of common law as a mechanism for protecting human rights.
Exam guidance
When analysing common law protection of rights:
- Explain how courts create precedents that establish rights through their decisions
- Evaluate the balance between judicial independence and parliamentary supremacy
- Assess effectiveness by considering both successful rights protections and limitations
- Use specific case examples to support your analysis
- Consider the interplay between common law and statute law
Key Points to Remember:
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Common law rights are freedoms established by judges when deciding cases, creating precedents that protect similar rights in future cases
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Courts protect rights through three key methods: establishing new rights, recognising statutory rights, and determining legislative validity
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Important common law rights include the right to silence, fair trial, legal representation, and transgender marriage rights (established in landmark cases like RPS v The Queen, Dietrich v The Queen, and Kevin & Jennifer)
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Courts can declare legislation ultra vires (beyond powers) if it exceeds parliamentary authority, protecting constitutional rights
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Parliament can codify (confirm) or abrogate (cancel) common law rights, but cannot override High Court constitutional interpretations
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Strengths of common law protection include judicial independence, flexibility, and ability to fill legislative gaps; weaknesses include reactive nature, unclear boundaries, and vulnerability to parliamentary override