Rights protections in Australia

  • Constitution (express rights)
  • Statute law
  • Common law (including implied rights)
  • International treaties

“To live in a common law country is the best guarantee of the rights of the individual”

– Robert Menzies

Why are rights important ?

  • Central to a free and democratic society
  • Encourages respect for others and promote harmony amongst people of different backgrounds
  • Limits what the Government may do, protecting the individual, minorities and the community
  • Obliges the gov’t to act to protect individuals, minorities etc.

Constitution (express rights)

  • The Constitutional protects a limited number of rights, called express rights
  • These can only be changed via a referendum
  • There are usually stated to be 5, maybe a 6th
  • These rights are quite narrow but are often used as a basis for implied rights
  • These rights usually limit the actions of the C’th gov’t rather than protect basic rights

Statute law

  • Legislation has been passed by Parliament to protect a variety of rights
  • However, this legislation can be overturned at any point by a government. These are legally binding, but do not really ensure rights are protected in the future, as any future statute can overturn them.
  • This is usually in the form of anti-discrimination laws that protect equality
  • The HRC is able to investigate allegations of human rights violations, provide legal advice to victims and submit proposals to the gov’t

Common law

Two types:

  • Rights recognised through court decisions, especially HC interpretations of the Constitution. These are called implied rights. See separate tab for more details on implied rights.
  • Mabo/Dietrich

 

  • Other common law principles not regarding the Constitution.
  • These are rights emanating from the legal traditions or conventions of the Westminster system and the Common Law

Common law principles include:

  • Right not to self-incriminate
  • Principle of natural justice
  • Prohibition of searches/entry without warrant (Coco v the Queen 2004)
  • Standard of proof
  • Legal privilege (Baker v. Campbell 1983)
  • Right to bodily inviolability (Secretary of the Health Department v JWB and SMB 1992)

Note that the Common Law can be always changed by Parliament if they want to.

International treaties

  • Australia has been a signatory to several international treaties that deal with human rights
  • These are not legally binding until ratified by Parliament
  • Australia has no obligation to ratify them, nor does the UN have any real sanctions to deal with rights violations

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