Common Law v Human Rights: Which Better Protects Freedoms?
Feature article by West Australian and National Committee member John Southalan.
The common law and human rights both provide important protections for individuals, groups and society in general. Along with this benefit, however, both human rights and the common law have shortcomings with their protections able to be limited or lost for many reasons, depending on (for example) the particular subject matter, the remedies required, statutory intervention, or the parties involved. Any lawyer wanting to assist in the protection of rights and freedoms must remain cognisant of both human rights and the common law because the best outcome requires the considered use of both.
On 9 June 2011, Australian Lawyers for Human Rights (ALHR) held a discussion seminar in the Perth CBD entitled ‘Common law v human rights: which better protects freedoms?’. The topic was deliberately provocative and vague, to provide an opportunity for speakers to focus on areas they consider of interest in protecting freedoms either through common law or human rights. The seminar was generously hosted by Allens Arthur Robinson and over 60 people attended to hear a lively discussion from Justice Carmel McLure, Kananga Dharmananda SC, Associate Professor Mary Anne Kenny and barrister John Cameron. The event was chaired by ALHR’s President, Stephen Keim SC. The following article is based on a discussion paper prepared for the event, together with some additional points and observations that arose through the event. This article seeks to assist in increasing practitioners’ awareness of the operation of common law and human rights. The article is divided into a number of areas, contrasting the operation of common law and human rights in relation to each area.
Click on the link below to access the full article.
This was published in Brief (Law Society of Western Australia), Dec 2011 at p10-14.
Kind thanks to the Law Society of WA for permission to republish on our website.