protection of rights through common law

Question 1

What is common law?

Answer 1

Law that has been established and developed over the years through decisions made by judges in state and federal courts

Question 2

Judges establishing precedent that protects rights

Answer 2

• judges have an important role interpreting the meaning of the commonwealth and state legislation that protects human rights
• legal rights that are established in this way are referred to as common law rights (established by judges when making decisions to resolve disputes

Question 3

Common law rights

Answer 3

• the right to silence
• the right to a fair trial
• the right to freedom of movement
• the right to a limited freedom of speech
• the right to legal representation
• recognition of charter rights
• the right of transgender people to marry
• the right of indigenous people

Question 4

The right to silence

Answer 4

Right of an accused not to have to answer police questions or give evidence and be subject to cross examination during a trial, to protect them against self-incrimination

Question 5

Cross examination definition

Answer 5

The questioning of a witness called by the other side in a legal case

Question 6

The right to a fair trial

Answer 6

A court may stop a trial from proceeding if it considers the trial to be unfair

Question 7

The right to legal representation

Answer 7

• common law cases recognised this rights
• a judge may adjourn (pause) a trial to give an accused time to access legal representation
• the right of an accused to have legal representation was recognised by the High Court in Dietrich v The Queen

Question 8

Recognition of charter rights

Answer 8

Courts have recognised rights available under the charter, such as the 02016 Supreme Court decision declaring holding children in adult prisons was invalid

Question 9

The right of transgender people to marry

Answer 9

• in Attorney-General v Kevin and Jennifer, the Family Court had to consider whether a person who was born as female and transitioned to male was considered to be a man for the purposes of Australian marriage laws (at the time banned same-sex marriage)
• ruling in this case was important in relation to establishing the rights of transgender people to marry

Question 10

The right of indigenous people

Answer 10

• a number of High Court cases have established and developed the rights of Aboriginal and Torres Strait Islander people
• in 202, the High Court considered whether Indigenous Australian people were subject to Commonwealth immigration laws
• the High Court’s ruling in the case is significant as it recognises the rights of indigenous Australian, and what it means to be Indigenous and connected to the land

Question 11

Declaring acts to be invalid

Answer 11

• courts can protect the rights of Australian people by using their power to declare that Acts are invalid if they are outside or beyond the parliaments law making powers
• courts can declare Acts of parliament invalid if made beyond parliaments law-making power

Question 12

Ultra vires definition

Answer 12

A latin term meaning ‘beyond the powers’; a law made beyond the powers of parliament

Question 13

Upholding rights contained in statutes

Answer 13

• courts can recognise and uphold the various rights available to people under stature law, including the Human Rights Charter
• includes the right to equality before the law and the right to effective protection against discrimination

Question 14

Codification or abrogation of common law rights

Answer 14

Court judgements (i.e. precedents) that establish, uphold, or recognise human rights can be codified (confirmed) or abrogated (cancelled) by parliament

Question 15

Codify (codification) definition

Answer 15

To collect all law on one topic together into a single statute

Question 16

Abrogate (abrogation) definition

Answer 16

To cancel or abolish a court-made law by passing an Act of parliament
- parliament may be able to cancel human rights that have been established in common law, although it cannot override rights established in High Court matters involving the interpretation of the Australian constitution.

Question 17

Strengths of common law in protecting rights

Answer 17

• courts are independent and free from political pressures
• courts can make decisions to establish rights in areas where parliament has not
• courts are able to infer rights without needing to consider how those rights may need to be limited
• courts can highlight gaps in the law to encourage parliament to act
• courts have been able to protect rights and parliament has not overly interfered with common law rights by abrogating them

Question 18

Weaknesses of common law in protecting rights

Answer 18

• common law rights can be difficult to define
  0 courts must wait for a case to come before them to be able to declare the existence of rights
• parliament can abrogate common law rights
• courts are often reluctant to recognise certain rights, leaving it up to parliament to protect those rights
• judges are limited in applying the law to the case that is before them and cannot extend their decision to rights or issues that are not in dispute in the case