Human rights scrutiny, common law rights, and the rule of law
Among common law nations, Australia is unique in that it lacks a Bill of Rights or a Constitutional Charter.
Common law courts possess the authority to furnish substantial safeguards for human rights concepts, such as the rule of law, unless specifically superseded by legislation.
It is assumed that Parliament did not aim to restrict fundamental rights.
The presumption that Parliament did not intend to restrict basic rights, unless it expressly states so, is a well-established tenet of legislative interpretation in Australian courts.
The concept in question was reiterated by the High Court in Coco v. The Queen (1994) 179 CLR 427 at 437.
The legislature shouldn’t be accused by the courts of wanting to trample on fundamental rights. Such an objective needs to be expressed in crystal clear, unambiguous language.
It has been said that the “principle of legality” is substantially protected by the assumption that legislation is meant to be consistent with fundamental rights, even though this presumption can be overruled by plain language.
Chief Justice Gleeson stated in Electrolux Home Products Pty Ltd v. Australian Workers’ Union:
The presumption is a working hypothesis, the existence of which is known to both parliament and the courts, upon which legislative language will be read. It is not only a commonsense guide to what a parliament in a liberal democracy is likely to have intended. One component of the rule of law is the hypothesis.
The common law recognizes several fundamental rights as part of this presumption.
Regarding compliance with commitments under international law, including those under human rights treaties, which were enforceable for Australia before the relevant legislation was passed, a similar presumption is applicable. According to Chief Justice Mason of the High Court and Justice Deane in the Teoh case:
In cases where a statute or subordinate legislation is unclear, the courts ought to give preference to interpreting it in a way that aligns with Australia’s responsibilities under a treaty or international convention to which the country is party. This is especially true when the legislation was passed subsequent to, or while contemplating, entering into, or ratifying the relevant international instrument. This is because Australia’s international law responsibilities are intended to be implemented by Parliament, at least in theory.
Constructive actions
The human rights treaties’ responsibilities on governments to actively promote and preserve human rights as well as to refrain from acting in a way that is incompatible with those rights are typically absent from common law recognition of rights.
Common law principles do include ideas meant to protect people with disabilities and children in some situations, but in other cases, this has resulted in additional violations of human rights due to pertinent statutory provisions and a lack of suitable administrative and policy settings.
For instance, a disabled person who is deemed unfit to enter a plea to criminal charges in the interest of a fair trial may be held without charge or trial for an indefinite period of time without the courts being able to address the blatant (and in some cases egregiously severe) violations of ICCPR Article 9 that have occurred.
Individual freedom
Article 9 of the ICCPR deals with topics that are obviously covered by common law principles in this field, however Article 9 offers further clarity in certain areas.
Article 9 incorporates a legality principle, similar to the common law norm, by mandating that any limitations be expressly stipulated by law.
Less is known about how much the ICCPR’s definition of personal liberty encompasses other relevant freedoms and rights.
Confidentiality
According to the UN Human Rights Committee’s ruling in Toonen v. Australia, for instance, the right to private life—which includes intimate behavior between consenting adults—is guaranteed under the ICCPR. As of yet, no equally expansive common law presumption has been found that expressly limits how far the legislature might trespass into private affairs.
Associational freedom
Given the opinions expressed by the Full Federal Court in Dr. Haneef’s case, it would seem that common law protects freedom of association. It is less evident how rights to participate in trade union activity are currently interpreted under common law.
The Slave Trade
Based on the seminal ruling in Somersett v. Stewart (1772) 98 ER 499 by Lord Mansfield, it would seem that one of the essential common law liberties is the absence of slavery, if not forced labor.
It would seem reasonable that freedom from slavery and human trafficking would fall under the category of personal liberty.
Rights under common law and legislative scrutiny
The extent to which Australia’s common law and parliamentary function protect human rights has been a major topic of discussion in the country’s legislative recognition of human rights debate.
The Human Rights (Parliamentary Scrutiny) Act of 2011 was put into action with the creation of the Parliamentary Joint Committee on Human Rights in 2012. The Commission views this as a major improvement to the Federal Parliament’s involvement in human rights scrutiny.
Australia is a party to seven key human rights treaties, which establish the Committee’s tasks and the criteria for legislation to be backed by Statements of Compatibility with human rights.
-} The United Nations Declaration of Human Rights
-} The World Economic, Social, and Cultural Rights Convention
-} The Agreement to Do Away With All Forms of Racial Discrimination
-} The Agreement to End All Forms of Discrimination Against Women
-} The international convention against torture and other cruel, inhuman, or cruel punishment
-} The Convention Ensuring the Welfare of Children
-} A convention pertaining to the rights of people with disabilities.
This gives the Committee a very broad mandate. There have also been discussions in Parliament on whether the Committee’s mandate should extend to examine laws and their effects on broader sources of rights, like common law rights.