Anglo Australasian Lawyers Society

The Common Law and the Protection of Human Rights

Chief Justice RS French

4 September 2009, Sydney

Introduction
1 The debate about whether Australia should have a Human Rights
Act is being pursued vigorously around the country. I express no view on
its merits. It has, however, involved repeated reference to the term
"unelected judges". That term has been used to suggest that a kind of
democratic deficit would result if judges were to be required to make
decisions involving the weighing up of important but competing societal
values – the kind of judgments not unusual in human rights jurisprudence.

2 There is, of course, nothing particularly unusual about judges

making that kind of judgment under both statute law and the common
law. So far as it concerns the judicial function, the human rights debate
does not offer a choice between judges making that kind of decision or
never making that kind of decision. The question at the heart of the
debate is really one of degree, namely would a Human Rights Act take
the judges too far beyond their current functions into the area of social
policy?

3 There are strong protagonists on either side of the argument and it

has a political dimension. It does, however, provide an opportunity for us
to reflect upon what it is that courts already do in applying the common
law which has been developed by the unelected judges of England and
Australia. It provides an opportunity to reflect about the way in which
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many of the things we think of as basic rights and freedoms come from
the common law and how the common law is used to interpret Acts of
Parliament and regulations made under them so as to minimise intrusion
into those rights and freedoms. We do so against the backdrop of the
supremacy of Parliament which can, by using clear words for which it can
be held politically accountable, qualify or extinguish those rights and
freedoms except to the extent that they may be protected by the
Constitution. For, subject to the Constitution, the Commonwealth
Parliament can legislate to change the common law just as it can legislate
to change its own statute law. It could also legislate to modify or repeal
its own Human Rights Act if it were to enact one. The Parliaments of the
States are in a similar position, save that it is not open to them to enact
laws which are inconsistent with valid laws of the Commonwealth.

4 It is helpful to start by thinking about the common law and its

character as part of the constitutional legacy we inherited from the United
Kingdom.

The common law – a constitutional legacy

5 The phrase "common law" refers to a body of principles or rules of
law worked out on a case-by-case basis by courts in England and latterly
in this country. That judicial law-making process is incremental. It has
been described as being like "the sluggish movement of the glacier rather
than the catastrophic charge of the avalanche"1.

6 The common law has a constitutional dimension because, amongst

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1
Rogers, Winfield and Jolowicz on Tort, (14th ed, Sweet & Maxwell, 1994) 17.
 3

other things, as Sir John Latham wrote in 19602:

… in the interpretation of the Constitution, as of all statutes,

common law rules are applied.

That constitutional dimension is also reflected in the institutional

arrangements which the common law brings with it. At its core are
public courts which adjudicate between parties and which are the
authorised interpreters of the law which they administer3. As Professor
Goodhart said, the most striking feature of the common law is its public
law, it being "… primarily a method of administering justice"4.

7 In the first of his McPherson Lectures last year, Spigelman CJ

recounted the role of "natural rights" in Blackstone's formulation of the
common law, Bentham's attack upon the idea of such rights as "nonsense
on stilts", and Henry Stephen's 19th century writing-down of Blackstone's
rights terminology5. Blackstone's language of natural right does not have
the same force today, but the role of the common law as a repository of
rights and freedoms is of considerable significance. A recent, non-
exhaustive list of common law rights in Australia contains the following6:

. the right of access to the courts;

. immunity from deprivation of property without compensation;

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2
Latham J, "Australia", (1960) 76 Law Quarterly Review 54 at 57.

3 Pollock F, The Expansion of the Common Law (1904) 51.

4 Goodhart AL, "What is the Common Law" (1960) 76 Law Quarterly Review 45
at 46.
5
Spigelman CJ, "The Common Law Bill of Rights", 10 March 2008, University
of Queensland, Brisbane.
6
Corrin J, "Australia: Country Report on Human rights", (2009) Victoria
University of Wellington Law Review, 37 at 41-42.
 4

. legal professional privilege;

. privilege against self-incrimination;
. immunity from the extension of the scope of a penal statute by a
court;
. freedom from extension of governmental immunity by a court;
. immunity from interference with vested property rights;
. immunity from interference with equality of religion; and
. the right to access legal counsel when accused of a serious crime.

To that list one would add:

. no deprivation of liberty, except by law;

. the right to procedural fairness when affected by the exercise of
public power; and
. freedom of speech and of movement.

These rights are of course of a limited nature and are contingent in the
sense that, subject to the Constitution, they can be modified or
extinguished by Parliament.

8 It is also important to recognise, as Peter Bailey points out in his

recent book on human rights in Australia, that common law "rights" have
varied meanings. In their application to interpersonal relationships,
expressed in the law of tort or contract or in respect of property rights,
they are justiciable and may be said to have "a binding effect". But
"rights", to movement, assembly or religion, for example, are more in the
nature of "freedoms". They cannot be enforced, save to the extent that
their infringement may constitute an actionable wrong such as an
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interference with property rights or a tort. Bailey says7:

So a common law "freedom" is not really like a human

rights type claim. A common law "freedom" is built up as a
general principle appears to be established by individual
cases. The single instances come first; the "freedom"
follows as a kind of title. In human rights, the "right" comes
first and the remedy (if one can be achieved) follows.

9 The common law method, in contrast with that involved in the

implementation of a Bill of Rights, was described by Professor Lumb as
being "based on a step by step approach, with the recognition and
development of rights reflecting a casuistic approach to the interpretation
of a "rights" issue in the light of relevant remedies and legislative
restrictions"8. Professor Lumb wrote in 1983 of judges in a common law
system without a constitutional Bill of Rights9:

The creativity of the judges is … restricted by the ground

rules of the system which does not have its source in a
fundamental constitutional document which is subject to
final review by a constitutional court. As a corollary of this,
the doctrine of parliamentary sovereignty enables the rules
to be changed and even abrogated. Judicial decisions even
of the most basic nature (whatever may be the conventions
which restrict the legislative power) are subject to being
superseded by legislation which, although open to
interpretation, is not open to invalidation by a constitutional
court.

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7
Bailey P, The Human Rights Enterprise in Australia and Internationally
(LexisNexis, 2009) [1.5.3].
8
Lumb RD, Australian Constitutionalism, (Butterworths, 1983) 102.
9
Lumb, RD, Australian Constitutionalism, (Butterworths, 1983) 102.
 6

Lumb went on to suggest that rights and freedoms might be regarded as

"residual in nature" and defined by reference to statutory rules and
common law exceptions. In my opinion, however, the word "residual" is
too weak, having regard to the way in which the courts have developed
the principle of legality affecting the interpretation of statutes by
reference to those rights and freedoms.
Common law rights and freedoms and the interpretation of
statutes

10 The common law has been referred to in the High Court as "… the
ultimate constitutional foundation in Australia"10. It has a pervasive
influence upon constitutional and statutory interpretation. As McHugh J
said in Theophanous, a case which applied the implied freedom of
political communication to the common law of defamation11:

The true meaning of a legal text almost always depends on a

background of concepts, principles, practices, facts, rights
and duties which the authors of the text took for granted or
understood, without conscious advertence, by reason of their
common language or culture.

11 The exercise of legislative power in Australia takes place in the

constitutional setting of a "liberal democracy founded on the principles
and traditions of the common law"12. The importance of the principles
and traditions of the common law in Australia is reflected in the long-
established proposition that statute law is to be interpreted consistently

______________________
10
Wik Peoples v Queensland (1996) 187 CLR 1 at 182.
11
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 196.
12
R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC
539 at 587.
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with the common law where the words of the statute permit. Historically
this proposition may be seen to have derived from judicial antagonism to
legislative incursions on judge-made law. In a passage still frequently
quoted, O’Connor J in the 1908 decision Potter v Minahan13 said,
referring to the 4th edition of Maxwell on The Interpretation of Statutes:

It is in the last degree improbable that the legislature would

overthrow fundamental principles, infringe rights, or depart
from the general system of law, without expressing its
intention with irresistible clearness; and to give any such
effect to general words, simply because they have that
meaning in their widest, or usual, or natural sense, would be
to give them a meaning in which they were not really used.
[Footnote omitted]

12 The principle enunciated in Potter v Minahan has evolved into an

approach to interpretation which is protective of fundamental rights and
freedoms and which closely resembles the "principle of legality"
developed by the courts of the United Kingdom. That principle has the
form of a strong presumption that broadly expressed official discretions
are to be subject to rights and freedoms recognised by the common law.
It has been explained in the House of Lords as requiring that Parliament
"squarely confront what it is doing and accept the political cost"14.
Parliament cannot override fundamental rights by general or ambiguous
words. The underlying rationale is the risk that, absent clear words, the

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13
(1908) 7 CLR 277 at 304.
14
R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC
115 at 131. See also R v Lord Chancellor; Ex parte Witham [1998] QB 575
and Dyzenhaus D, Hunt M and Taggart M, "The Principle of Legality in
Administrative Law: Internationalisation as Constitutionalisation" (2001) 1
Oxford University Commonwealth Law Journal 5.
 8

full implications of a proposed statute law may pass unnoticed15:

In the absence of express language or necessary implication

to the contrary, the courts therefore presume that even the
most general words were intended to be subject to the basic
rights of the individual.

13 In the celebrated Metric Martyrs case16, Laws LJ may have pushed

the envelope of the principle when he characterised it as protecting
"rights of a constitutional character recognised by the common law". The
abrogation of such rights by statute would require a demonstration of the
actual intention of the legislature to do so, rather than some imputed or
constructive or presumed intention. That could only be done if the statute
used words or words so specific that the inference of an intention to
abrogate such a right would be irresistible. Laws LJ described this
approach as providing "most of the benefits of a written constitution, in
which fundamental rights are accorded special respect", while preserving
the sovereignty of the legislature and the flexibility of the uncodified
British Constitution17.

14 Although Commonwealth statutes in Australia are made under a

written constitution, the Constitution does not in terms guarantee
common law rights and freedoms against legislative incursion.
Nevertheless, the interpretive rule can be regarded as "constitutional" in
character even if the rights and freedoms which it protects are not.

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15
[2000] 2 AC 115 at 131.
16
Thoburn v Sunderland City Council [2003] QB 151.
17
[2003] QB 151 at 187.
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15 There have been many applications of the general rule which, in

Australia, had its origin in Potter v Minahan. It has been expressed in
quite emphatic terms. Common law rights and freedoms are not to be
invaded except by "plain words"18 or necessary implication19.

16 In Bropho v State of Western Australia20 the High Court of

Australia restated the presumption "against the modification or abolition
of fundamental rights or principles" and identified the passage from
Maxwell quoted in Potter v Minahan as supplying its rationale. What
was important about the restatement was the strength of its affirmation. It
was affirmed again in Coco v The Queen21 in the context of interference
with individual rights and freedoms. The presumption, however, is not
limited in terms to those rights, freedoms or doctrines presently
recognised by the common law. Native title, which was not recognised
by the common law of Australia until 1992, is taken not to have been
extinguished by legislation unless the legislation reveals a plain and clear
intent to have that effect. This presumption applies to legislation which
may have predated the decision in Mabo (No 2) by many decades and in
some cases by more than 100 years. It is a requirement which flows from
"the seriousness of the consequences to indigenous inhabitants of
extinguishing their traditional rights and interest in land"22. It may be

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18
Re Cuno (1889) 43 Ch D 12 at 17 per Bowen LJ.
19
Melbourne Corporation v Barry (1922) 31 CLR 174 at 206 per Higgins J.
20
(1990) 171 CLR 1.
21
(1994) 179 CLR 427.
22
Mabo v Queensland (No 2) (1992) 175 CLR 1 at 64.
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seen as a particular application of the presumption against interference

with common law rights only recently discovered by the courts.

17 Two recent high profile cases involving the application of the

presumption were judgments of the Full Court of the Federal Court in
Minister for Immigration and Citizenship v Haneef23 and Evans v New
South Wales24. In Haneef, after referring to what the High Court said in
Coco and what Lord Hoffman had said, enunciating the principle of
legality in Simms, the Full Court construed the term "association" in s 501
of the Migration Act 1958 (Cth) narrowly. That section defined the
circumstances in which a person would not pass the "character test" and
so be liable for refusal or cancellation of a visa on character grounds. The
relevant criterion was that:

The person has or has had an association with someone else,

or with a group or organisation, whom the Minister
reasonably suspects has been or is involved in criminal
conduct.

The Court there said25:

Having regard to its ordinary meaning, the context in which

it appears and the legislated purpose, we conclude that the
association to which s 501(6)(b) refers is an association
involving some sympathy with, or support for, or
involvement in, the criminal conduct of the person, group or
organisation. The association must be such as to have some
bearing upon the person's character. (emphasis in original)

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23
(2007) 163 FCR 414.
24
(2008) 168 FCR 576.
25
(2007) 163 FCR 414 at 447 [130]
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18 In determining the validity of a regulation made under the World

Youth Day Act 2006 (NSW), the Full Court referred to Potter v Minahan,
Bropho and Coco and quoted what Gleeson CJ said about the principle of
legality in Electrolux Home Products Pty Ltd v Australian Workers'
Union26. The former Chief Justice had said:

The presumption is not merely a commonsense guide to

what a parliament in a liberal democracy is likely to have
intended; it is a working hypothesis, the existence of which
is known both to parliament and the courts, upon which
statutory language will be interpreted. The hypothesis is an
aspect of the rule of law.

In that case, the regulation making power, interpreted according to the

common law principle, was found not to authorise a regulation directed to
conduct causing "annoyance … to participants in a World Youth Day
event".

19 In the quotation from Professor Lumb's text on Australian

constitutionalism mentioned earlier, the suggestion was made that
common law rights and freedoms could be regarded as "residual". And
indeed the common law has always adhered to the proposition that "…
everybody is free to do anything, subject only to the provisions of the
law"27. That may suggest that freedom is what is left over when the law
is exhausted. But the principle of legality in England and the interpretive
principle in Australia suggest that it is more than that. TRS Allan put it

______________________
26
(2004) 221 CLR 309.
27
Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 283
(Lord Gough); Lange v Australian Broadcasting Corporation (1997) 189 CLR
520 at 564.
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thus28:

The traditional civil and political liberties, like liberty of the

person and freedom of speech, have independent and
intrinsic weight: their importance justifies an interpretation
of both common law and statute which serves to protect
them from unwise and ill-considered interference or
restriction. The common law, then, has its own set of
constitutional rights, even if these are not formally
entrenched against legislative repeal.

20 By way of example, there has long been a particular recognition at

common law that freedom of speech and the press serves the public
interest. Blackstone said that freedom of the press is "essential to the
nature of a free State"29. Lord Coleridge in 1891 characterised the right
of free speech as "one which it is for the public interest that individuals
should possess, and, indeed, that they should exercise without
impediment, so long as no wrongful act is done".30

21 The limitations on freedom of speech in respect of "criminal

matters" and "wrongful acts" which were accepted by both Blackstone
and Lord Coleridge beg the question of what could be treated as
"criminal" or "wrongful" by the legislature. This point was taken up in

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28
Allan T R S, "The Common Law of the Constitution: Fundamental Rights and
First Principles" in Saunders C (ed), Courts of Final Jurisdiction: The Mason
Court in Australia (1996) 148.
29
William Blackstone, Commentaries on the Laws of England (first published
1769), Vol 4, 151-152.
30
Bonnard v Perryman [1891] 2 Ch 269 at 284 and see R v Police of the
Metropolis; Ex parte Blackburn (No 2) [1968] 2 QB 150 at 155; Wheeler v
Leicester City Council [1995] AC 105 at 106; Attorney-General v Guardian
Newspapers Ltd (No 2) [1990] 1 AC 109 at 220.
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criticism of the Blackstone approach in the United States, in the context

of discussion about the First Amendment31.

22 Despite its limits and vulnerability to statutory change, the

common law gives a high value to freedom of expression, particularly the
freedom to criticise public bodies32. Courts applying the common law
may be expected to proceed on an assumption that freedom of expression
is not to be limited save by clear words or necessary implication. An
example of a common law principle expressly protecting freedom of
speech is the rule in England that local authorities and other organs of
government cannot sue for libel at common law. There is no public
interest favouring the right to sue and it was said by the House of Lords
in the Derbyshire County Council Case in 1993 to be contrary to the
public interest "because to admit such actions would place an undesirable
fetter on freedom of speech"33. That principle was applied by the New
South Wales Court of Appeal in 199434.

23 The Court of Appeal in the Derbyshire County Council Case,

referred to Article 10 of the European Convention on Human Rights,
which relates to freedom of expression. The United Kingdom is party to
that Convention. Balcombe and Butler-Sloss LJJ took the view that,
where the law is uncertain, the courts should approach it in such a way as

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31
Chafee Z, Freedom of Speech, (Legal Books Repr, 1920 ) 11.
32
Halsbury’s Laws of England (4th ed, 1989) Vol 8(2) par 107.
33
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 549.
34
Ballina Shire Council v Ringland (1994) 33 NSWLR 680.
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to ensure that it does not involve a breach of Article 1035. And in a New
South Wales Court of Appeal decision in the following year,36 Kirby P
referred to the provisions of Article 19.2 of the International Covenant on
Civil and Political Rights, which Australia has ratified37.

24 The application of the principle in support of freedom of

expression was seen at the level of constitutional characterisation of
powers in the decision of the High Court in Davis v Commonwealth38.
1988 was the bicentenary of European settlement of Australia. A
company was established called the Australian Bicentennial Authority to
plan and implement celebrations of the bicentenary. The Australian
Bicentennial Authority Act 1980 (Cth) was enacted to, inter alia, to
reserve to the Authority the right to use or licence the use of words such
as "bicentenary", "bicentennial", "200 years", "Australia", "Sydney",
"Melbourne", "Founding", "First Settlement" and others in conjunction
with the figures 1788, 1988 or 88. Articles or goods bearing any of these
combinations without the consent of the Authority would be forfeited to
the Commonwealth. In their joint judgment striking down some aspects
of these protections, Mason CJ, Deane and Gaudron JJ (Wilson, Dawson

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35
Derbyshire County Council v Times Newspapers Ltd [1992] QB 770 at 813.
36
The Derbyshire and Ballina cases were discussed by Kirby J as part of a
wider consideration of domestic application of international human rights norm
and the Bangalore Principles: The Road from Bangalore – The First Ten Years
of the Bangalore Principles on the Domestic Application of International
Human Rights Norms.
37
(1994) 33 NSWLR 680 at 698.
38
(1988) 166 CLR 79.
 15

and Toohey JJ agreeing) said39:

Here the framework of regulation … reaches far beyond the

legitimate objects sought to be achieved and impinges on
freedom of expression by enabling the Authority to regulate
the use of common expressions and by making unauthorized
use a criminal offence. Although the statutory regime may
be related to a constitutionally legitimate end, the provisions
in question reach too far. This extraordinary intrusion into
freedom of expression is not reasonably and appropriately
adapted to achieve the ends that lie within the limits of
constitutional power.

25 The common law can of course only go so far. It does not provide
the support for freedom of expression that would accord it the status of a
"right". It cannot withstand plainly inconsistent statute law.

26 The interpretive presumptions have not gone without criticism.

Lords Simon and Diplock said of the general presumption40:

We are inclined to think that it may have evolved through a

distillation of forensic experience of the way parliament
proceeded at a time when conservatism alternated with a
radicalism which had a strong ideological attachment to the
common law. However valid this particular aspect of the
forensic experience may have been in the past, its force may
be questioned in these days of statutory activism.

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39
(1988) 166 CLR 79 at 100; see at 116 per Brennan J.
40
Maunsell v Olins [1975] AC 373 at 394.
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Julius Stone, writing in 1946, described the effects of the presumptions

upon legislation, which is the major source of law, as "obviously
serious"41.

27 In his 1908 essay in the Harvard Law Review on common law and
legislation, Roscoe Pound described the general presumption as lacking
justification and confronting the social reformer and legal reformer with
the situation that a legislative act representing the fruits of their labours
would find no sympathy in those who apply it, would be construed
strictly and would be made to interfere with the status quo as little as
possible42. In the concluding portion of his essay he enunciated the
democratic principle which should cause statute law to be preferred over
common law43:

We recognize that legislation is the more truly democratic

form of law-making. We see in legislation the more direct
and accurate expression of the general will. We are told that
law-making of the future will consist in putting the sanction
of society on what has been worked out in the sociological
laboratory. That courts cannot conduct such laboratories is
self evident. Courts are fond of saying that they apply old
principles to new situations. But at times they must apply
new principles to situations both old and new. The new
principles are in legislation. The old principles are in
common law. The former are as much to be respected and
made effective as the latter – probably more so as our
legislation improves. The public cannot be relied upon

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41
Stone J, The Province and Function of Law: Law Logic, Justice and Social
Control: A Study in Jurisprudence (Associated General Publications Pty Ltd,
Sydney, 1946) 199.
42
Pound R, "Common Law and Legislation" (1908) 21 Harvard Law Review 383
at 387.
43
Ibid at 406-407.
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permanently to tolerate judicial obstruction or nullification

of the social policies to which more and more it is compelled
to be committed.

28 Finn J has observed of a similar rule of construction applied in the

United States:

More generally the more we expose the bases of our

interpretative principles and evaluate them in the light both
of contemporary legislative practice and the modern
understanding of interpretation as a process; the greater is
the likelihood of continuing reappraisal of the validity and
vitality of those principles.

29 The common law interpretive principle protective of rights and

freedoms against statutory incursion retains its vitality, although it has
evolved from its origins in a rather anti-democratic, judicial antagonism
to change wrought by statute. It has a significant role to play in the
protection of rights and freedoms in contemporary society, while
operating in a way that is entirely consistent with the principle of
parliamentary supremacy. Whether it goes far enough, or whether we
need a Human Rights Act to enhance that protection with judicial and/or
administrative consideration of statutory consistency with human rights
and freedoms, is a matter for ongoing debate.