Fundamental Common Law Rights and Equality

Abstract

In Australia, the State and Commonwealth constitutions may independently reconcile parliamentary sovereignty and the rule of law. A harmony of constitutional doctrine is obtained, without recourse to the common law, by virtue of the legal limitations on the legislative competences of the Australian Parliaments. If it is right to interpret constitutional provisions as well as ordinary statutes in the light of common law values, such as those that inform the ideal of the rule of law, the degree to which the existence of a ‘written’ constitution truly alters the character of legal analysis at the most fundamental level must be questioned. An implied liberty of political communication, that limits legislative power to restrict freedom of speech about public affairs, has been inferred from the principle of ‘representative democracy’ that underlies the constitution. This chapter discusses equality and the separation of judicial power; procedural and ‘substantive’ due process; implied rights, popular sovereignty, and judicial review; and the right to a fair trial in criminal proceedings.