20 Feb Protecting Your Rights
South Australia is one of the few political entities in the western world where there is not some form of a Bill of Rights, either at the national or state level.
Instead, with a few exceptions which are explicitly or implicitly included in the Australian Constitution, our civil rights are protected through a set of common law principles.
The two key principles which protect civil rights are:
- That public officials may only interfere with a person’s liberty or property if authored by the common law or by statute to do so; and
- If a statute is going to give a public official a power which interferes with a fundamental freedom, it must do so explicitly or by necessary implication.
Put simply, before a government agent interferes with your liberty or property, we need to be able to be sure that parliament intended that they be allowed to.
The justification for this approach, rather than a Bill of Rights, is that it may be in the interests of society that certain rights are infringed.
By way of example, English Common law established that a person has a right to access and use of the public highways. However, with the advent of the cars it became necessary for Parliaments to curtail this right in the interests of public safety. Therefore, Parliaments have imposed licence conditions, speed limits, and all sorts of other regulations which infringe on this right; but which are considered necessary in our society for the safety of other road users.
Parliament is answerable to its citizens, and if the citizens do not agree that it is in their interests, as a whole, to have a particular right infringed then they can lobby parliament, or remove the government at an election. A parliament which infringes rights must bear the political consequences of doing so.
If parliament has not consider whether an Act will infringe rights it will not be read by the courts as allowing an infringement of those rights. Parliament must confront what it is doing square on.
For example, police officers have the power in South Australia to require a person to state his or her name, address and date of birth when that person is either suspected of a criminal offence or thought to be able to assist in the investigation of a suspected criminal offence. This is an infringement upon the common law right to silence; but it has been made expressly by parliament.
However, parliament did not say that police had the power to enter private property without the consent of the occupier to exercise this power to require personal particulars. The Act is silent about whether police may enter private property. Therefore, the Supreme Court of this state has held that where police have remained on private property without the consent of the occupier for the sole purpose of exercising this power, the police were in fact trespassing as they did not have that power to compel a person to state his personal details while they were on his private property without his consent. (see police v dafov)
The South Australian Parliament could in theory grant police the power to enter and search your house without any warrant and without even a reasonable suspicion that there is any evidence of an offence contained in your house; simply on the basis that police wished to search your house. However, the politicians who gave police this power would have to say that that is exactly what they were doing; and would have to face the political consequences (be they good or bad) for having given police such a broad power.
This system can result in greater protection of an individual’s rights, because parliament is expected to carefully balance the competing considerations, rather than just relying on the Bill of Rights to protect liberty. However, it can obviously result in greater infringement of individual rights if parliament considers it necessary. Our system is only as effective as the politicians who pass the laws; how effective it is, is a matter for you.