18th July 2021
Why common law cannot guarantee liberty in Australia
I had erroneously claimed in my Griffith Society talk on 8 October 2020 that the rights of Australians are adequately protected and what we are seeing since March 2020 is largely a failure of the laws, a failure of institutions.
I cited Timothy Jones who wrote:
Australia and Britain have remarkably few constitutional guarantees of fundamental rights. This is not to say, of course, that the two countries are without any such protections. The Magna Carta of 1215 (“that great confirmatory instrument … which is the ground work of all our Constitutions”) and the Bill of Rights of 1689 (“the product of an alliance between parliamentarians and common lawyers”) remain, but they have a limited field of operation and are inadequate as modern statements of fundamental rights.13 And as subsequent discussion will demonstrate, the Australian Constitution does have something to say on the subject. It is nevertheless the case that the Anglo-Australian tradition has been to place faith in the common law, supplemented by legislation in specific areas, together with responsible and representative Parliamentary government, as the best means by which fundamental rights can be protected. As Sir Ninian Stephen has noted: “The ‘founding fathers’ of our Constitution took it for granted that individual rights were secure under the common law.”
 Jones, Timothy H., “Legal Protection for Fundamental Rights and Freedoms: European Lessons for Australia?”, Federal Law Review, Vol 22, Issue 1, 1994. [URL: http://classic.austlii.edu.au/au/journals/FedLawRw/1994/3.pdf]
I also wrote:
I believe that although Australia’s Constitution did not specifically give us a Bill of Rights, the rights and freedoms of Australians and Victorians are no less protected in our common law tradition than the rights of the Americans – whose young nation is merely an offshoot of the Glorious Revolution and John Locke’s treatises on Civil Government. The Westminster system of government with its liberties rooted in the Magna Carta must hold.
But I recently chanced upon a 1980 book by Colin Howard (The Constitution, Power and Politics) and he has argued cogently that common law can never work to defend liberty.
The rules, doctrines and principles, or whatever else one cares to call them, of the common law all amount to exactly the same thing. They are simply laws. If they are not laws, they do not exist. But as laws, whether great or small, they can be abolished or changed by any valid process of law making.
Broadly speaking, under the common law system there are two main ways of making valid laws. One is through decisions by the courts themselves on the basis of the cases brought before them. The other is through bills passed by parliament, which thereupon become acts of parliament. Valid acts of parliament are always superior to decisions of the courts if the two come into conflict.
In Australia the complication occurs that the courts themselves can decide whether acts of parliament are valid or not; that is to say, whether the parliament concerned has power under the constitution to pass an act of that kind. If they are not, then of course they cannot have any effect. The courts cannot however do this on an arbitrary basis to suit themselves. For an act of parliament to be declared invalid it must fall clearly outside the constitutional powers of the Parliament concerned. This does not usually happen and in any case does not affect the basic rule that the law is normally made by parliament and, in default of that, made up by the courts as they go along, on the basis wherever possible of similar decisions which have been given in the past.
Now, even the briefest consideration of the two main sources of the law in Australia should be enough to make clear that the system guarantees nothing at all. An earlier decision of the courts proclaiming some right or liberty of the citizen can be departed from or overruled by a later decision or by an act of parliament. It is true that in general the courts adhere fairly closely to their own previous decisions, and also that there are complicated rules about which courts can overrule decisions of other courts, or their own past decisions. None of this affects the main proposition that a decision of a court is in the end only a decision of a court, and as such can be overruled, restricted, abolished or not seen as relevant to some future case. No rule or law which is subject to this degree of interference can possibly be regarded as guaranteeing anything to anyone.
As for acts of parliament, they can be repealed or altered at any time by the same parliament or any later one. In this sense acts of parliament guarantee very little more, if anything, than decisions of the courts.
Notwithstanding these simple facts about the way in which the law comes into existence and disappears again, comforting rhetorical statements, most of them emanating from the higher levels of the legal profession, are regularly trotted out if the desirability of an Australian bill of rights is raised or discussion. It is difficult for the rational inquirer to know how this can possibly happen, but perhaps it does not matter. The important point is that, whatever the motivation for these reassuring opinions, they are demonstrably mistaken. The general law, whether dignified with the name of the principles of the common law or not, guarantees the ordinary citizen in particular and Australia in general just about nothing. The more important questions are, how would a constitutional statement of rights and liberties alter this situation and why would the change be for the better?
I believe (and I’ve mentioned it in a number of talks/ interviews) that laws and constitutions don’t really matter in the end. No matter what laws we may have in place, if the people want it, they will destroy our liberty at will.
Once the people of Australia went into deep panic and hysteria, no one could have defended liberty without being destroyed politically or otherwise. Till today, the people love those who are crushing liberty and hate anyone who asks a question.
I can also say for sure that international covenants and human rights declarations are not worth the paper they are written on – as seen from the decision by the ICC to not pursue an open-and-shut case of crimes against humanity. There is NO way to defend liberty when the world goes mad.
Having said that, the events of 2020 and 2021 have created a stronger and more urgent case for a review of Australia’s Constitution. I don’t care much about the republican debate – these are trivial matters in comparison to a consideration of the ways by which we could try to lock in certain basic liberties for the people of Australia.
Australia is no different today to any Third World totalitarian dictatorship. All institutions have failed. The age of universal deceit is upon us, as I wrote in my Spectator article yesterday.
What can be done?