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
- 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
- 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.
- 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.
- 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