I have made previous comments on claims that the COVID19 restrictions are somehow unlawful because of the infringement of our rights.  It’s not a debate I really want to get into but I received this comment in response to the post “COVID19 and the Law of Australia” (May 16, 2020)

The post was a link to online resources so people could see what the laws were and it included a discussion on the constitutionality of the response. I did make it to direct people there rather than here, a blog on emergency law. But I did receive this comment via facebook:

Although we don’t have a Bill of Rights as the U.S does, do we not have Rights under Common Law? So the question I’d ask is ‘have our rights been marginalised or removed contrary to our common law rights ‘?

And preparing an answer took so much work and whilst not directly on topic for this blog, given the discussions that have occurred, that it seemed a shame to have it lost on Facebook so I repost it here as an post in its own right.

First, even if there were rights under common law, someone has to actually challenge the matter in court. Asserting them won’t make a difference (see https://emergencylaw.wordpress.com/2020/04/23/challenging-covid-restrictions-part-1/).

If you want to rely on the common law to protect rights, then you want to rely on a fundamentally un-democratic institution (albeit an independent judiciary although not elected, is a bulwark of democracy).  The common law comes from the King sending his judges to travel the country and apply the ‘common’ law but as many people complain, judges are unelected, so the Parliament has the power to make laws including laws that modify or set aside the common law.

In Kable v DPP (NSW) [1996] HCA 24 Dawson J said:

Lord Reid’s reference to earlier times would appear to hark back to the view expressed by Coke CJ in Bonham’s Case (1572). He said:

“And it appears in our books, that in many cases, the common law will … control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void”.

Academic debate over the meaning of those words continues to the present time. It is unclear whether Coke CJ was intending to say that Acts of Parliament which are repugnant to the common law are void or whether he was merely laying down a rule of statutory interpretation. If he was intending the former, he appears to have had second thoughts, because in his Fourth Institute he described parliament’s power as “transcendent and absolute”, not confined “either for causes or persons within any bounds”. He there contemplated the enactment of bills of attainder without trial and statutes contrary to Magna Carta without any suggestion of their invalidity.

However, Coke was not alone and there were other early expressions of opinion which appear to suggest that courts might invalidate Acts of Parliament which conflict with natural law or natural equity. But they are of academic or historical interest only for such views did not survive the Revolution of 1688 or, at the least, did not survive for very long after it. Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and cannot be questioned by reference to principles of a more fundamental kind. Indeed, it is a principle of the common law itself “that a court may not question the validity of a statute but, once having construed it, must give effect to it according to its tenor”

There are many claims by people thinking there is some overriding law – many relate to the idea that we cannot be forced to hold a licence or register a car due to some undefined common law right to travel. People have gone to gaol defending such views. For a discussion of the ‘sovereign citizen’ movement see https://youveenteredlawland.com/freeman-on-the-land-australia/

For a recent discussion see Flowers v State of New South Wales [2020] NSWSC 526. In that case Mr Flowers argued that he had an inalienable right to have his civil (not criminal) claim determined by a jury notwithstanding the provisions of the legislation in that state. Harrison J said:

“Mr Flowers contends that trial by jury is an inalienable right guaranteed to him by the Magna Carta over 800 years ago and remains the common law of the land…

“Mr Flowers submits that denial of his right to a trial by jury is “sinister, vile and reprehensible”. Lord Edward Coke also gets a run, telling me that “Common law doth control Acts of Parliament and adjudges them when against common right to be void”. I feel confident I have heard similar submissions before…

“Mr Flowers also reminds me that no “evil counsellors, judges and [sic, or] ministers” can be allowed to subvert or extirpate the laws and liberties of the people: Bill of Rights, 1688. To deny trial by jury is to deny democracy and to deny democracy is treason.

“Mr Flowers’ contentions appear to proceed upon the underlying basis that, to the extent to which s 85 of the Supreme Court Act or UCPR 29.2 operate somehow to modify or extinguish what would otherwise be an automatic right to a trial by jury, they are ineffective or void. Mr Flowers maintains that no Act of Parliament can take away his right to trial by jury. In Mr Flowers’ submission, rights never die. Mr Flowers asserts that “people are not subject to statute law, which is inferior to common law, and are only accountable to common law that is made and imposed by their equals, i.e. accountable only to juries”…

“At least one difficulty with Mr Flowers’ contentions is that they are no more than that: unsupported assertions. Mr Flowers offers no evidence that could support a claim that, for example, the Supreme Court Act is void or was not enacted according to law.

“Another difficulty lies in the fact that this Court and the Court of Appeal have consistently operated upon the basis that s 85 of the Supreme Court Act is a valid law of New South Wales and have applied it accordingly. In the absence of an arguable legal basis supported by evidence that suggests that I should take a different approach, I consider that I am bound to apply the provision according to its terms.

“It will be apparent that I consider that s 85 operates and applies in the present circumstances to govern the question of the mode of trial.”

And so, the application for a trial by jury was rejected and the law set out in the Supreme Court Act was applied.

In a patient discussion with a self-represented litigant before the High Court (Essenberg v The Queen [2000] HCATrans 297) McHugh J said:

“… we are ruled by law and law is the law of Parliament; it is called legal positivism. It is the law laid down. This Court makes decisions and, unless they are constitutional decisions, the Parliament can overrule them and often does. We lay down a law, Parliament can change it. It is the democratic right of the people to do it through their parliamentary representatives. So, what you are faced with is the Queensland Parliament enacting this legislation, which you obviously think is a bad piece of legislation and infringement with your rights and which other members of the community think is a good thing, that is something to be debated at the ballot box, but it is not a constitutional matter…

“Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom. “

Executive government, the Ministers and government departments, come before courts and are required to comply with the law written by Parliament (which the Ministers are part of). But (to again quote McHugh J) “Parliament – some people would regard it as regrettable – can, in effect, do what it likes.”

As for your rights – what are they?

Freedom of association? “This Court has held, more than once, that no “free-standing” right of association is to be implied from the Constitution” and “The right of association under the common law is subject to legislative regulation …” (Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35 upholding NSW ‘anti-bikie’ laws).

Liberty? “It is not true, as Kirby J asserts, that “indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia’s constitutional arrangements”…” (Al-Kateb v Godwin [2004] HCA 37 upholding indefinite detention of a person who could not be deported to another country even though he had not be tried or convicted of any offence).  And in Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64:

“… a Bill of Attainder or a Bill of Pains and Penalties is a law (1) directed to an individual or a particular group of individuals (2) which punishes that individual or individuals (3) without the procedural safeguards involved in a judicial trial…. No express prohibition against the enactment of Bills of Attainder or Bills of Pains and Penalties is to be found in the Constitution. However, it is a necessary implication of the adoption of the doctrine of the separation of powers in the Constitution that the Parliament of the Commonwealth cannot enact such Bill …An Act of the Parliament which sought to punish individuals or a particular group of individuals for their past conduct without the benefit of a judicial trial or the procedural safeguards essential to such a trial would be an exercise of judicial power of the Commonwealth and impliedly prohibited by the doctrine of the separation of powers.”

The separation of powers enshrined in the Commonwealth constitution doesn’t stop states passing a Bill of Pains and Penalties provided that they do not involve the Courts in executive decision making (Kable v DPP [1996] HCA 24; Fardon v Qld [2004] HCA 46).

A right to due process and a lawyer?

Howie, Sattler and Hood, Hayes and Eburn Criminal Law and Procedure in NSW (6th ed, 2019, LexisNexis) p. 654:

“The Australian Security Intelligence Organisation (ASIO) can obtain warrants to access computers, use listening devices, use concealed tracking devices and inspect postal articles (Australian Security Intelligence Organisation Act 1979 (Cth) ss 25A–27). ASIO may also obtain a warrant to permit the detention of a person for questioning. A warrant can be issued that allows ASIO to detain any person for up to seven days. The warrant may be issued where the issuing authority is satisfied that such questioning will ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’. The person detained need not be suspected of any offence, only that he or she has information of interest to ASIO. Once detained under a warrant, ASIO may (but need not) tell someone (for example, a lawyer or the detained person’s family) that the person has been detained. A person detained may be questioned and commits an offence if he or she does not answer these questions (Australian Security Intelligence Organisation Act ss 34A–34ZY). These provisions were initially supposed to lapse in July 2016, but have since been extended several times. At the time of writing they were due to expire on 7 September 2019 (ASIO Act s 34ZZ)….

The ongoing, so-called ‘war on terror’, and anti-terrorism legislation reflect a fundamental shift in the traditional balance between civil liberties and the power of the state and its security, intelligence and police forces by dramatically reducing the fundamental freedoms outlined above…”

And recent news suggests that there are moves to further expand the policing powers to include detention of people as young as 14 and to remove the need to get court issued warrants (see https://www.abc.net.au/news/2020-05-14/peter-dutton-introduces-bill-giving-asio-powers-to-talk-to-teens/12246886)


If you are relying on the common law, rather than your choice when you cast your vote, to protect what you consider are fundamental rights and freedoms you are pinning your hopes on a flimsy safeguard. Courts and judges do recognise that there are fundamental rights and read down legislation where they can to protect them within the words used by the legislature, but at the end of the day ‘a court may not question the validity of a statute [with the exception of the High Court when determining whether a statute is within power as allocated by the Constitution] but, once having construed it, must give effect to it according to its tenor”.’