Common law is the body of law that is composed by the judgements of the courts. It carries the power to promote and enforce human rights through the doctrine of precedent. Human rights are promoted when precedent is applied or created where none exists. Precedent ensures that the law for human rights develops in a consistent and coherent manner. As such, a number of important rights in Australia have been developed by common law. For example, the case
Dietrich v The Queen 1992 recognised the right to a fair trial through the provision of legal aid to the accused in a serious criminal matter.
Additionally, statute law can either be adopted in response to the formation and ratification of international treaties for human rights, or established independently by state and federal parliaments. It has made an important contribution to the enforcement of human rights as evident through various pieces of legislation such as the
Racial Discrimination Act 1975 (Cth),
Anti-Discrimination Act 1977 (NSW), and
Sex Discrimination Act 1984 (Cth), which affirm the recognition of the equality, dignity and worth of all humans.
Effectiveness of Statue Law:
| Effective | Ineffective |
- Ensures rights are legally enforceable.
- More flexible and easier to reform. → Just need to pass a bill.
- Most comprehensive measure for human rights.
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- Found in different/multiple legislations. → Difficult for people to know all their rights.
- The bill process itself is quite time consuming.
- Like common law, rights laid out in statute are not fixed - they too can be removed by a later Act of parliament.
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Limitations of Common Law:
- Does not offer absolute protection of human rights, because common law rights are not fixed – that is, rights in the common law can be removed by any Act of parliament.
- Statute law overrides common law.
- Common law cannot be relied upon to develop new rights, as judgements will only define those rights on a case-by-case basis.
Also note that the
Australia Constitution protects human rights in Australia:
The Australian Constitution plays two important roles in protecting human rights for Australians:
- It lays down the system of Australian government through which human rights are recognised, including the separation of powers and division of powers.
- It’s the source of some specific human rights, namely express rights which are the freedom of religion, right to vote in Commonwealth elections, the right to a trial by jury in federal indictable cases, the right to 'just terms' where the Commonwealth compulsorily acquires property, and the right not to be discriminated against as a result of residence in one state.
No need to mention the Australia Consitution in your question, however, it would be good to talk about it if given a more general question such as "How are human rights protected in Australia?"
