In the light of these statements and practices, those who prefer to regard Australia as a separate common law system for each state and territory would no doubt argue that Australian courts were “technically” not bound by the House of Lords (or any other English court) and only by the Privy Council, and that the High Court`s instructions to the lower courts in this matter were merely based on judicial policy. namely, the desirability of uniformity. [52] Priestley, above No. 1, 232. See also L.J. Priestley, “A federal common law in Australia?” (1995) 46 South Carolina Law Review 1043, 1065–7. 2.4 Many traditional rights and freedoms are now recognized as “human rights”. Justice Murphy referred to “the common law of human rights”[4] and Professors George Williams and David Hume wrote that the common law is “a living and rich source of human rights.” [5] The power of the common law Constitution to protect fundamental rights and the central role it attributes to individual conscience in examining the moral credibility of the law, or rather what masquerades as law but can, on closer inspection, prove to be a violation of the rule of law. [37] However, it is clear that the common law was relevant to certain Commonwealth matters, such as the scope of executive power and the application of the prerogatives of the Commonwealth of the Crown. Clark treated these questions as determining the meaning of the Constitution with reference to external things or events. In that sense, the rules of the common law were implicit in the Constitution. “But in such a case, only the Constitution prescribes the law, and the whole law is contained in the language in which it is prescribed.” [25] This proposal, if followed, would subject all powers of the Commonwealth (and perhaps the state) to fundamental common law rights in the absence of clear evidence to the contrary.
That would amount to an implied bill of rights, as Justice Toohey said, the content of which would emerge over time. As Justice Toohey put it, “the courts would, over time, articulate the content of the power constraints that flow from the fundamental freedoms of the common law.” [83] This paper concludes that there is much to be said about the proposition that there is a national common law system that can be used for many different purposes. This argument is, in my view, supported by historical, constitutional and social considerations. The common law system in a pre-federation Australian colony or in a post-federation state was not normally seen (with a few exceptions) as a separate system of principles and rules and was an independent source of development and growth. Legislative independence was accompanied by a growing divergence between Australian and English common law in the last quarter of the 20th century. [17] In addition, much of the English law preserved in Australia has been progressively abolished in state legislatures, as in New South Wales by the Imperial Acts Application Act 1969. It appears that jurisdiction has been conferred on the Court in disputes between States because it is not the internal forum of one of the parties, but a common court charged with finding “an alleged violation of a positive law to which the parties are also subject”. [66] It could be argued that the preserved laws, including the common law rules, could be different, since the conditions of New South Wales were not the same as those of South Australia and Western Australia at the time of admission (e.g., neither of the latter was a “penal colony” at the colony). English laws were to be enforced only to the extent that they could be. In any event, there were three different dates of receipt in Australia, which could also indicate different common law systems.
2.48 At common law, persons who are not Australian citizens (“aliens”), with the exception of enemy aliens, are to be treated as part of the “Queen`s Peace” during their stay in Australia and not as outlaws outside the ordinary legal system. The High Court has repeatedly held that these individuals are entitled to the same civil rights protection as the law affords to Australian citizens. [81] 2.6 Prior to the wave of international conventions following the Second World War, legislation and common law were the main sources of protection of rights and freedoms in the United Kingdom, Australia, New Zealand and Canada. In his book Human Rights and the End of Empire, the English legal historian AW Brian Simpson wrote about the widespread assumption that human rights in Britain were “so well protected by international human rights conventions that they were an example to the world”. In normal times, Simpson writes, “if there were no war, insurrection, or general problems of law and order, few would deny that the people of the United Kingdom enjoyed a relatively high degree of personal and political freedom.” [7] Australian Capital Television v Commonwealth (1992) 177 CLR 106, [23]. Justice Mason stated: “The framers of the Constitution, in accordance with prevailing English thinking, accepted that it was better to leave the rights of citizens to the protection of the common law in conjunction with the doctrine of parliamentary supremacy”: Ibid.[31] Common law changes are the domain of Parliament where there is no logical or analogous relationship to existing common law rules, or as a reflection of changing social conditions, as Gaudron J. and McHugh J. noted in Breen v Williams (1996) 186 CLR 71; 138 ALR 25( (pp. 115; 290-291): Of course, it does not follow from the existence of a common appellate court that it is intended to apply the same legal system in all jurisdictions. The House of Lords in respect of England and Scotland and the Privy Council in respect of the different types of legal systems of the Empire are proof of this. But, as explained above, the common law was generally regarded by the Federation as a single body of English law.
The High Court could not have been expected to act differently. 2.7 To the extent that Australian law has protected and promoted rights and freedoms, it has long been the laws and judicial laws that do so. [9] In a speech in 2013, former High Court of Australia Justice John Dyson Heydon AC QC discussed some of the benefits of statutory and common law rights protection.