In recent decades, the issue of human rights has increasingly become one of the focal points of international law. This has exerted influence on the Australian legal system by sparking vigorous debates regarding Australia’s model of incorporation of human rights into the Australian law. Currently, human rights in the Australian legal system are protected in the models of common law presumptions and Constitution, and in statutory interpretation. However, these have provided “inadequate” protection and in response to this, models including a Bill of Rights entrenched in the Constitution or in the legislation and direct rights within legislation have been proposed. All of these models possess their respective strengths and weaknesses with some undermining the rule of law and impinging on the separation of powers.

The Constitution

The Constitution has protected some fundamental human rights through the provision of four express guarantees and several implied rights as interpreted by the High Court. Section 51 (xxxi) requires the Commonwealth provide compensation “on just terms” when acquiring a person’s property. Section 80 requires that a Commonwealth indictable offence must be trialled by a jury and that the accused cannot opt-out of a trial by jury. A further guarantee in the Constitution is given in Section 116 which protects the prohibition of religion, thereby providing freedom of religion. Finally, Section 117 prohibits discrimination on the basis of a person’s State of residency. In recent years, the High Court has breathed new life on additional rights implied through the structure and language of the Constitution. For example, the High Court recognised that there was an “implied freedom of political communication” which was critical in the successful operations of the democratic system.

The static nature of these rights in the Constitution has only enabled for a narrow and very limited scope of interpretation of the Constitution. Their permanence in time have neglected the changing social values and environment of modern society and in order to amend the Constitution, a referendum by a majority of the people and a majority of the states has to be passed.

Common Law

The common law system, which Australia inherited from the United Kingdom, has always protected traditional freedoms of civil and political rights. Australian judges have protected many protections, (identified as human rights), when applying common law principles, which have formed the common law presumptions. Some of these presumptions include “the right of freedom of expression, the right to natural justice … the right to trial by jury and the right of access to the courts”. A strength of the common law system has been its flexible nature that has enabled courts to continue to protect these presumptions in new situations, by finding new set of circumstances that uphold the presumption. For example, the High Court has “shift[ed] away from the traditional approach of looking at specific circumstances, such as misdirection to the jury or the wrongful admission of evidence”, to protect the presumption of the right of an accused person to a fair trial. However, these moves by the courts to protect human rights have been very limited. Fidelity to precedent, which the common law system is based upon, has shackled the courts to the chains of history. Consequently, the courts’ approach to protecting human rights has been principled and balanced to maintain consistency with previous decisions. This has resulted in a limited capacity of the common law to effectively adapt to the changing social environment not only on a domestic level, but more critically, on an international sphere.

The influence of international law of human rights, especially on the common law system, has been inevitable but simultaneously, been limited for fear of judicial activism. Secreted within the common law system has been the influence of international norms, as stated in Mabo by Brennan J, “international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights”. The courts have tried to gradually develop and make new laws to protect human rights, but this has been seen as judicial activism subjected to criticisms from the public. In particular, in Teoh,the High Court “held that international conventions that are not incorporated into Australian law can give rise to a legitimate expectation that … the government will act … consistent with its international obligations”. This generated intense political anxiety with a subsequent statement released by Parliament that criticised the judgment. This politically influential criticism impinged on the public’s confidence of the impartiality and independence of the judiciary. In turn, as “the rule of law [is] depend[ant] upon an independent judiciary”, the rule of law was undermined. Moreover, the judicial activism was deemed to be an usurpation of the legislature’s function. The rule of law rests on the separation of powers by insisting that only democratically-elected representatives of Parliament should make laws. This confines the law-making powers of the judiciary as a check and balance of the legislature and executive. Therefore, the move to judicial activism in order to further protect human rights has undermined the rule of law both as a consequence of destroyed public confidence and the collusion between the judiciary and the other arms of the Government.

Ironically, the check and balancing powers of the judiciary in upholding common law rights and freedoms have been undermined, representing another weakness of the common law system. The rights upheld by the common law system are easily overridden by statutes legislated by the Commonwealth and State, as an exercise of Parliamentary sovereignty. The laws declared by the courts can be changed within limits of the Constitution. This has effectively caused the erosion of rights upheld by the common law and questions the common law’s system ability to continue to protect human rights. If this is so, then the role of the courts, even as a check and balance mechanism of Parliament, is somewhat bound. This has come at the expense of protecting human rights and has been aggravated by the courts’ inability to make new laws in fear that their activism would undermine the rule of law and the separation of powers. But, it seems paradoxical to prevent the courts from functioning in this activist manner in order to protect human rights, especially in light of the nature of Australia’s legal system where there is no clear guideline to direct the court. Accordingly, there have been proposals for a Bill of Rights entrenched in the Constitution, or at least one entrenched in legislation but these, too, have their own strengths and weaknesses.

Bill of Rights

The inadequacy of the common law system.