The Common Law and the Constitution as Protectors of Rights in Australia

Abstract

This paper considers the extent to which the common law does or should protect fundamental human rights. It begins with reference to suggestions in various jurisdictions that there are some rights that are deeply rooted in common law, and which could not be interfered with by Parliament. It considers the position of common law rights in jurisdictions such as Australia with a written Constitution, and the extent to which rights are found in the common law or the Constitution or both, and the relation between the common law and the Constitution. It considers the possible theoretical underpinning of such suggestions, from a social contract, sovereignty and rule of law perspective. In so doing, it is acknowledged that, contrary to Diceyan theory, Parliaments do in fact act to take away fundamental rights, and it is argued to be simplistic to assume that the remedy for such behaviour is to be found at the ballot box, and never in the courts. Finally, arguments against the notion of rights protected by the common law are considered, including Parliamentary supremacy, arguments about democracy, and suggestions of ‘judicial activism’.