Fundamental principles of common law.

Written by gad123
  1. The truth is sovereign in law;
  2. All people are sovereign in society;
  3. The right and duty of the common people to use jury  nullification of government Statutes when required;
  4. Oaths of public office are always observed in full; 
  5. All are equal under the law; 
  6. Freedom of speech;
  7. The presumption of innocence before guilt; 
  8. The right to be heard within a trial by jury of our  equals/peers; 
  9. A jury verdict of guilt (criminal intent) is always unanimously  agreed upon by all of the jurors; 
  10. Justice must be done but it must also be seen to be done (in  public forum); 
  11. Justice can never be delayed, denied or sold to anyone; 
  12. No detention without due process of law (habeas corpus);
  13. No punishment/penalty before due process of law; 
  14. Freedom from unwilling association (except from the  common law); 
  15. The right to freedom of association; 
  16. The right to bear arms or to assault in proportion to the threat(s) in the defence of the self or others, and in defence of any  trespass of property (inc; the country/realm); 
  17. The right to free access to clean water, clean air, safe foods  and medicine and to create/obtain lawful shelter;
  18. The right to free unhindered travel; 
  19. All workers are worthy of their hire (no slavery); 
  20. All have a duty to keep the peace; 
  21. All are subject to and protected by the law equally; 
  22. No taxation without representation; 
  23. Agreements/contracts are honoured that have been willingly  entered into in good faith and by due process (full disclosure,  equal consideration, witnesses etc). 

The above principles can all be placed within the main four  principles of our common law: 

Cause no harm; 

Cause no loss; 

be peaceful;

be honest. 

The above four above principles simply cover every eventuality in  life. Corpus Juris (EU Rules) under the EU constitution – Lisbon  Treaty are mainly opposite to the above principles we have.

Please see the following links for more on this subject

The Golden Principles of the English Constitution Version 1 

The Coronation Oath and The Principles of the English Constitution Version 2  (wih different attachments)

At West Kennet Long Barrow Reading from The Rights of Persons Book 1 From Blackstones Commentary on The Laws of England 1765


Common Law Court Procedure 

For our Common Law Assent Complete Packages including how to stand under Oath see here – Common Law Assent Complete Collection | Common Law Assent – The Push Back on Patreon


Next, I give you a section from:


Common law foundations

2.2        The rights, freedoms and privileges set out in the Terms of Reference have a long and distinguished heritage. Many have been recognised in Australia, England and other common law countries for centuries. They form part of the history of the common law, embodying key moments in constitutional history, such as the sealing of the Magna Carta in 1215,[1] the settlement of parliamentary supremacy following the Glorious Revolution of 1688 and the enactment of the Bill of Rights Act 1688.[2] They were recognised and developed by the courts and some were declared and affirmed by historic statutes and further developed by modern legislation.

2.3        The Hon Robert French AC, Chief Justice of the High Court, has said that

many of the things we think of as basic rights and freedoms come from the common law and how the common law is used to interpret Acts of Parliament and regulations made under them so as to minimise intrusion into those rights and freedoms.[3]

2.4        Many traditional rights and freedoms are recognised now as ‘human rights’. Murphy J referred to ‘the common law of human rights’[4] and Professors George Williams and David Hume have written that the common law is ‘a vibrant and rich source of human rights.’[5]

2.5        Traditional rights recognised by the common law are now found in international agreements and bills of rights in other jurisdictions—including, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the bills of rights in the United States and Canadian constitutions, and the human rights Acts in the United Kingdom, New Zealand and two Australian jurisdictions, the Australian Capital Territory and Victoria. French CJ has said that the human rights and freedoms in the Charter of Human Rights and Responsibilities Act 2006 (Vic)(the Victorian Charter)‘in significant measure incorporate or enhance rights and freedoms at common law’.[6]

2.6        Before the wave of international conventions in the aftermath of the Second World War, legislation and the common law were the principal sources of protection of rights and freedoms in the UK, Australia, New Zealand and Canada. In his book, Human Rights and the End of Empire, English legal historian AW Brian Simpson wrote about the widely held assumption that, before international conventions on human rights, human rights in the UK were ‘so well protected as to be an example to the world’. In normal times, Simpson writes, ‘when there was neither war, nor insurrection, nor widespread problems of public order, few would deny that people in the United Kingdom enjoyed a relatively high level of personal and political freedom’.[7]

In the modern period, and subject to certain limitations which, for most persons, were of not the least importance, individuals could worship as they pleased, hold whatever meetings they pleased, participate in political activities as they wished, enjoy a very extensive freedom of expression and communication, and be wholly unthreatened by the grosser forms of interference with personal liberty, such as officially sanctioned torture, or prolonged detention without trial.[8]

2.7        To the extent that Australian law has protected and fostered rights and freedoms, it has long been statutes and judge-made law that have done so.[9] In a 2013 speech, former Justice of the High Court of Australia, the Hon John Dyson Heydon AC QC, considered some of the benefits of protecting rights through statutes and the common law. He said that statutes and the common law protect rights often by ‘detailed and precise rules’ and vindicate ‘human rights directly and specifically’:

[C]ommon law and statutory rules tend to be detailed. They are generally enforceable. They are specifically adapted to the resolution of particular problems. Their makers seek, with some success, to make them generally coherent with each other and with the wider legal system.[10]

2.8        Taking the right to a fair trial as an example, Heydon said that rules found in certain statutes and in the common law ‘were worked out over a very long time by judges and legislators who thought deeply about the colliding interests and values involved in the light of practical experience of conditions in society to which the rules were applied’.[11]

2.9        Identifying and critically examining laws that limit rights is a crucial part of protecting rights, and may inform decisions about whether, and if so how, such laws might need to be amended or repealed. This may be seen to complement work that considers other ways to protect rights—such as by creating new offences and new causes of action, or by enacting a bill of rights.[12] Whether the introduction of a bill of rights in Australia is desirable is widely debated,[13] and draws in part upon historical arguments about whether the courts or parliaments are better guardians of individual rights.[14] However, the question is not the subject of this Inquiry.[15]

2.10     The focus of this Inquiry is on identifying and critically examining Commonwealth laws that encroach upon traditional rights. However, as part of the context of this analysis, it is useful to first consider how these rights are protected in law from statutory encroachment. Broadly speaking, some protection is provided by the Australian Constitution and by rules of statutory construction, such as the principle of legality. These are discussed generally below and more fully throughout the report.

Australian Constitution

2.11     The Constitution expressly protects a handful of rights and has been found to imply certain other rights. The rights expressly protected by the Constitution are:

  • the right to trial by jury on indictment for an offence against any law of the Commonwealth—s 80;
  • freedom of trade, commerce and intercourse within the Commonwealth—s 92;
  • freedom of religion—s 116; and
  • the right not to be subject to discrimination on the basis of the state in which one lives—s 117.

2.12     Section 51(xxxi) of the Constitution provides that if the Commonwealth compulsorily acquires property, it must do so on ‘just terms’—which may also be conceived of as a right.[16]

2.13     The High Court has also found certain rights or freedoms to be implied in the Constitution—notably, freedom of political communication.[17] This freedom is not absolute, but any law that interferes with political communication must be ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’.[18] The High Court has often said the freedom is not a personal right, but rather is ‘best understood as a constitutional restriction on legislative power’.[19]

2.14     A right to vote has also been found to be implied in the Constitution—laws that limit adult suffrage can only be made when the law is ‘reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government’.[20]

2.15     The High Court may have moved towards entrenching procedural fairness in courts as a constitutional right.[21] Chapter III of the Constitution vests the judicial power of the Commonwealth in the High Court and in other courts that Parliament creates or invests with federal jurisdiction. In Leeth v Commonwealth,Deane and Toohey JJ observed that investing judicial power in ‘courts’ implies that courts ‘exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially’.[22] In Dietrich v The Queen, the High Court drew natural justice implications from the nature of judicial power and held that a person accused of a serious crime might in some circumstances be denied a fair trial, if they were not represented by a lawyer.[23] In Polyukhovich v Commonwealth, Deane J said:

Common sense and the provisions of Ch III, based as they are on the assumption of traditional judicial procedures, remedies and methodology, compel the conclusion that, in insisting that the judicial power be vested only in the courts designated by Chapter III, the Constitution’s intent and meaning were that judicial power would be exercised by those courts acting as courts with all that notion essentially requires.[24]

2.16     In Polyukhovich, it was accepted that bills of attainder violate the constitutional separation of powers.[25] The legislature cannot therefore usurp the distinctly judicial power of the courts to determine criminal guilt.

2.17     If procedural fairness were considered an essential characteristic of a court, Williams and Hume write, this might have the potential, among other things, to constitutionalise

the presumption of innocence, the ‘beyond reasonable doubt’ standard of proof in criminal proceedings, the privilege against self-incrimination, limitations on the use of secret evidence, limitations on ex parte proceedings, limitations on any power to continue proceedings in the face of an unrepresented party, limitations on courts’ jurisdiction to make an adverse finding on law or fact that has not been put to the parties, and limitations on the power of a court or a judge to proceed where proceedings may be affected by actual or apprehended bias.[26]

2.18     It remains to be seen whether this will become settled doctrine of the court.

2.19     The Constitution does not directly and entirely protect many of the rights, freedoms and privileges listed in the ALRC’s Terms of Reference. One reason the Constitution does not expressly protect most civil rights, Professor Helen Irving writes, was the ‘general reserve about directly including policy in the Constitution, instead of powers subsequently to enact policy’.

Specifically, the British legal tradition (in which in fact the ideas of freedom and ‘fair play’, far from being overlooked, were thought central) largely relied on the common law, rather than statute or constitutional provision to define and protect individual rights and liberties. This approach was adopted for the most part by the Australians in constitution-making. It explains in large degree the shortage (as it is now perceived) of explicit statements of ideals and guarantees of rights, and descriptions of essential human and national attributes.[27]

2.20     Professor Jeffrey Goldsworthy has written that the constitutional tradition Australia inherited from Britain was ‘obviously not opposed to rights such as freedom of speech, but was opposed to judges having power to protect them from interference by legislation’:[28]

With a few exceptions, our framers relied on other mechanisms for protecting rights, including constitutional conventions; the common law; presumptions of statutory interpretation; and community attitudes, of tolerance and respect for rights, expressed through the ballot box.[29]

2.21     In Australian Capital Television v Commonwealth,Dawson J suggested that those who drafted the Constitution saw constitutional guarantees of freedoms as ‘exhibiting a distrust of the democratic process’:

They preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers. Their model in this respect was, not the United States Constitution, but the British Parliament, the supremacy of which was by then settled constitutional doctrine.[30]

A common law constitution?

2.22     The term ‘common law constitutionalism’ is now ‘widely used to denote the theory that the most fundamental constitutional norms of a particular country or countries (whether or not they have a written constitution) are matters of common law’.[31] Under this theory, the common law is said to incorporate fundamental moral principles, against which the legality of governmental decisions, and even Acts of Parliament, may be tested.[32] Many of the rights and freedoms listed in the Terms of Reference, even those not fully protected by the Australian Constitution, would be considered constitutional in this way.

2.23     Commonly associated with the writing of Professor Trevor Allan[33] and Lord Justice John Laws,[34] common law constitutionalism has been called ‘a potent phenomenon within contemporary public law discourse’.[35] Allan has written that ‘the common law is prior to legislative supremacy, which it defines and regulates’:[36]

We should not underestimate the power of the common law constitution to protect fundamental rights, and the central role it ascribes to the individual conscience in testing the moral credentials of law, or rather of what purports to be law but may, on inspection, prove to be an infringement of the rule of law.[37]

2.24     Some even suggest that courts may invoke this common law constitution to invalidate Acts of Parliament.[38] The theory has been said to invert the traditional relationship between statute law and the common law.[39] Professor Jeffrey Goldsworthy, a critic of common law constitutionalism, has written that the theory amounts to a ‘takeover bid’ which replaces legislative supremacy with judicial supremacy.[40] The political constitution, Thomas Poole writes, is ‘turned on its head in favour of a system of constitutional politics whose central institution is the common law court’.[41]

2.25     The theory has its leading proponents in the UK, which lacks a written and rigid constitution. In Australia, it has not been applied to invalidate unambiguous statutes. In South Australia v Totani, French CJ said that it is

self-evidently beyond the power of the courts to maintain unimpaired common law freedoms which the Commonwealth Parliament or a State Parliament, acting within its constitutional powers, has, by clear statutory language, abrogated, restricted, or qualified.[42]

2.26     Common law constitutionalism does however find a more confined application in an accepted principle of statutory construction known as the ‘principle of legality’.

The principle of legality

2.27     The principle of legality is a principle of statutory interpretation that gives some protection to certain traditional rights and freedoms, including almost all of those listed in the Terms of Reference.[43] In fact, as Spigelman has said, the ‘protection which the common law affords to the preservation of fundamental rights is, to a very substantial degree, secreted within the law of statutory interpretation’.[44]

2.28     The principle of legality may go back at least as far as Blackstone and Bentham.[45] It may be a new label for a traditional principle.[46] Early Australian authority may be found in the 1908 High Court case, Potter v Minahan.[47] A more recent statement of the principle appears in Re Bolton; Ex parte Beane:

Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.[48]

2.29     The rights or freedoms protected by the principle of legality ‘often relate to human rights and are sometimes described as having a constitutional character’.[49] The principle ‘extends to the protection of fundamental principles and systemic values’.[50] There is no settled list of rights protected by the principle, but in Momcilovic, Heydon J set out the following examples:

[F]reedom from trespass by police officers on private property; procedural fairness; the conferral of jurisdiction on a court; and vested property interests …; rights of access to the courts; rights to a fair trial; the writ of habeas corpus; open justice; the non-retrospectivity of statutes extending the criminal law; the non-retrospectivity of changes in rights or obligations generally; mens rea as an element of legislatively-created crimes; freedom from arbitrary arrest or search; the criminal standard of proof; the liberty of the individual; the freedom of individuals to depart from and re-enter their country; the freedom of individuals to trade as they wish; the liberty of individuals to use the highways; freedom of speech; legal professional privilege; the privilege against self-incrimination; the non-existence of an appeal from an acquittal; and the jurisdiction of superior courts to prevent acts by inferior courts and tribunals in excess of jurisdiction.[51]

2.30     The primary rationale for this principle of statutory construction was provided by Lord Hoffmann:

[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.[52]

2.31     The ‘political cost’ of the decision was also something referred to by French CJ. The interpretation of legislation takes place ‘against the backdrop of the supremacy of Parliament’, which can qualify or extinguish rights and freedoms by ‘clear words’—but words ‘for which it can be held politically accountable’.[53] As suggested in Coco v The Queen, the principle may ‘enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights’.[54]

2.32     The principle of legality may be applied not only to statutes, but also to regulations and other delegated legislation, where in fact it may assume greater importance, given such laws are not made directly by Parliament.[55]

2.33     The principle of legality is similar to interpretation provisions in some human rights Acts, such as s 32(1) of the Victorian Charter, which provides: ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.[56] French CJ has said that this provision is ‘analogous to the common law principle of legality’.[57] The principle of legality could be similarly codified in a Commonwealth statute, such as the Acts Interpretation Act 1901 (Cth). This could act as a clear statement of parliamentary support for the principle of legality and further protect fundamental rights and freedoms from statutory limitation.

2.34     Finally, it should be stressed that the principle ‘does not constrain legislative power’.[58] Subject to the Constitution, Parliament has the power to modify or extinguish common law rights. Chief Justice Robert French has said while the principle has a ‘significant role to play in the protection of rights and freedoms’, it does not ‘authorise the courts to rewrite statutes’.[59] The principle of legality will have a very limited application where encroaching on a right is a clear objectof a statute.[60]

International law

2.35     Each chapter of this Report sets out examples of international instruments that protect the relevant right or freedom. Most commonly cited is the International Covenant on Civil and Political Rights (ICCPR),[61] to which Australia is a party.[62]

2.36     Instruments such as the ICCPR provide some protection to rights and freedoms from statutory encroachment, but, like the principle of legality, generally only when a statute is unclear or ambiguous:[63]

Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party.[64]

2.37     In Mabo v Queensland [No 2], Brennan J said that ‘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’.[65]

2.38     However, even international instruments to which Australia is a party do not create binding domestic law in Australia. Nor do they abrogate the power of the Commonwealth Parliament to make laws that are inconsistent with the rights and freedoms set out in these instruments. In Dietrich v The Queen, Mason CJ and McHugh J said:

Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions.[66]

2.39     In Minister for Immigration v B, Kirby J said that the High Court ‘cannot invoke international law to override clear and valid provisions of Australian national law’.[67]

2.40     International law protects rights in other ways. For example, Australia periodically reports to and appears before relevant United Nations human rights treaty bodies.[68] And as discussed below and in Chapter 3, Australian parliamentary committees scrutinise laws for compatibility with core international human rights treaties. The United Nations Human Rights Committee also considers communications from individuals who claim to be victims of a human rights violation.[69]

2.41     While the focus of the Terms of Reference is upon common law rights and freedoms,[70] international human rights law informs approaches to domestic law and also the ALRC’s obligations in conducting inquiries.[71]

The nature of common law rights

2.42     Some of the rights and freedoms listed in the Terms of Reference directly give rise to legal obligations and may be enforced in courts of law. Others are more like freedoms or liberties and are protected in Australia by virtue of the fact, and largely only to the extent, that laws do not encroach on the freedom.[72] The High Court said in Lange v Australian Broadcasting Corporation:

Under a legal system based on the common law, ‘everybody is free to do anything, subject only to the provisions of the law’, so that one proceeds ‘upon an assumption of freedom of speech’ and turns to the law ‘to discover the established exceptions to it’.[73]

2.43     Many common law rights may therefore be largely residual,[74] and perhaps for this reason, more vulnerable to statutory encroachment.[75]

2.44     In some other jurisdictions, rights and freedoms are afforded additional protection from statutory encroachment by bills of rights and human rights statutes. The degree of protection offered by these statutes varies. A constitutionally entrenched bill of rights, such as that found in the United States Constitution, allows the judiciary to declare a law invalid. This may be contrasted with the Human Rights Act 1998 (UK), which does not give courts the power to strike down legislation, but provides that ‘[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible’ with rights and freedoms set out in the European Convention on Human Rights.[76] The Victorian Charter has a similar provision, quoted above.[77]

2.45     Common law rights overlap with the rights protected in these international instruments and bills of rights. In their history and development, each may be seen as an important influence on the other. A statute that encroaches on a traditional common law right will often, therefore, also encroach on its related human right. However, the two rights may not always have the same scope. While some common law rights are often conceived of as residual, human rights are rarely thought of in this way. Moreover, human rights have been said to tend to grow in content and form. Professor Tom Campbell has written:

More and more interests are recognized as justifying the protection that flows from being adopted as a human right. This growth is a matter of the form of human rights as well as their content. Thus, even traditional core civil and political liberties are seen as involving positive correlative duties to secure the interest identified in the right, and not, as before, merely negative correlative duties to let people be and leave them alone to go their own way. Human rights are also being put to a wider variety of uses.[78]

2.46     Many social and economic rights are also recognised as human rights in international law—for example, the right to work and the right to housing. As important as these rights may be, they are not the focus of this Inquiry.[79]

Extra-territorial application

2.47     In the absence of a specific legislative restriction which is consistent with the Constitution, the enjoyment of most common law rights and freedoms is not confined to Australian citizens.[80]

2.48     At common law, people who are not Australian citizens (‘aliens’), other than enemy aliens, are to be treated, while they are in Australia, as being within ‘the Queen’s Peace’, not as outlaws placed beyond the ordinary legal system. The High Court has noted on several occasions that such people are entitled to the same protection with respect to civil rights as the law affords to Australian citizens.[81]

2.49     A related issue concerns whether common law rights have extra-territorial effect—that is, do they apply to people who are outside Australia, or on their way to Australia. Generally, Australian common law does not apply of its own force in areas beyond the limits of Australia.[82] In Ruddock v Vadarlis, Beaumont J held that asylum seekers aboard the MV Tampa had not, and could not, assert a common law right to enter Australia; and it is unlikely they had other Australian common law rights that could be enforced.[83]

2.50     There is a common law presumption that legislation does not have extra-territorial application. Australian law may be given extra-territorial effect in legislation—for example, as has been done in relation to child sex offences.[84] Where Australian law has extra-territorial effect, common law rights may apply. For example, an Australian military tribunal operating outside Australia would be expected to observe natural justice.


An Explanation by Lisa Taylor

Here is an interesting extract:

Common law plays an important role in the protection of citizen’s democratic rights and freedoms. In Australia, subject to the Constitution the Commonwealth Parliament generally has the power to make laws that encroach on common law rights and freedoms. The courts’ role involves an important application of the rule of law when interpreting legislation that might impinge on rights or impose an inappropriate burden on citizens. It is the courts’ efforts that provide in effect a common law bill of rights and protection for civil liberties against an invasion of the State.

The dominance of the purposive approach and the effect of section 15AA override both common law approaches to statutory interpretation. That said, some common law principles remain and do not impinge on the statutory approach.

The courts will approach interpretation with certain common law presumptions in mind based on an expectation that certain tenants of our legal system will be followed by the legislature. The rationale is that the established judicial system and associated rules of common law function in the interests of our society.

All assumptions are subject to the basic rule that Parliament may override them, however, the courts require a clear indication that the intent is to abrogate a fundamental right before such an interpretation is accepted. A ‘fundamental right’ will only be taken to be displaced if society values have changed and a right recognised by law where the displacement standard is lower.

It is established at common law that fundamental rights cannot be overridden by general or ambiguous words contained in statute and that it is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.

Australian courts have applied the principle of legality to protect a variety of fundamental rights at common law. They include the rights to private property, personal liberty, freedom of expression, freedom of movement, natural justice and access to the courts.


And here is an example of ‘Common Law’ at work:


The Fundamental Principle of Common Law

In the famous 1865 case of Rylands v Fetcher, the Court of Exchequer Chamber gave judgment in the following words of Mr Justice Blackburn: ‘We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape’. This rule, the judge added, ‘seems on principle just’.

Until Rylands v Fletcher, however, no such rule had ever been formulated. The facts of the case arose in the context of new industrial activities, generating serious public anxiety, along with conflicts that had not been tried at law. Did Mr Justice Blackburn merely invent the rule, therefore? If he did, then Mr Rylands was penalised by an act of retroactive legislation – in other words, by the invention of a law of which he could have had no prior knowledge. Surely that would be a flagrant injustice. But notice the judge’s words: ‘We think that the true rule of law is…’. In other words, in Blackburn’s own eyes, he was not inventing the rule, but discovering it. And such was the opinion of the House of Lords, in upholding his judgment.

About the author


Leave a Comment