How do statute and the common law protect rights in Australia and how secure is that protection?
Analyse the protection of rights through statute and the common law and evaluate the security of those protections
A direct answer to the WACE Politics and Law dot point on statutory and common law rights. Covers anti-discrimination and privacy statutes, common law rights and the principle of legality, and why these protections can be overridden by Parliament.
Reviewed by: AI editorial process; not yet individually human-reviewed
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What this dot point is asking
This dot point covers the two largest sources of rights protection in Australia outside the Constitution. SCSA wants you to give concrete examples of each and then evaluate their key weakness: they are not constitutionally entrenched, so they depend on the will of Parliament.
Statutory protection of rights
Parliament protects many rights by passing legislation. At the Commonwealth level this includes the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Age Discrimination Act 2004 and the Privacy Act 1988, enforced through bodies such as the Australian Human Rights Commission. States have their own equal opportunity and anti-discrimination laws. Several Australian jurisdictions have gone further with statutory human rights instruments: Victoria, the Australian Capital Territory and Queensland have human rights Acts that require public authorities to act compatibly with listed rights and courts to interpret legislation consistently with them where possible.
The common law and the principle of legality
Judges have long protected rights through the common law, including the presumption of innocence, the right to a fair trial, the right to silence, freedom of movement, and protection against arbitrary detention. A particularly important tool is the principle of legality: courts presume that Parliament does not intend to abrogate fundamental rights unless it uses clear and unambiguous words. So a vaguely worded statute will be read, where possible, to preserve rights. This forces Parliament to confront and openly justify any intrusion on rights, which itself promotes accountability.
The defining weakness: no entrenchment
The crucial evaluative point is that statutory and common law rights are not entrenched. A statute protecting a right can be amended or repealed by Parliament through the ordinary legislative process. The Racial Discrimination Act, for example, has been suspended by later Commonwealth legislation in particular circumstances, showing that even an important rights statute can be set aside. Common law rights are even more vulnerable, because the principle of legality only requires clear words: if Parliament expressly states an intention to override a right, the courts must give effect to that law. This is the direct consequence of parliamentary sovereignty in a system without a bill of rights.
Evaluating the security of protection
When you evaluate, weigh breadth against security. Strengths: statutes can cover detailed and modern areas (privacy, discrimination, technology) that a constitution never could, they can be updated quickly, and the common law plus the principle of legality provide a flexible safety net that pressures Parliament to be transparent. Weaknesses: none of it is entrenched, so protection ultimately depends on the political majority of the day; protection is patchy and varies between jurisdictions; and enforcement can be costly and slow. A strong answer concludes that Australia relies on the political process and a patchwork of laws rather than a single guaranteed instrument, which is the central debate in the bill of rights question.