Civil Liberties Considerations


1. Lionel Murphy, address to ALP National Conference, 1967

Every generation has to fight over and over again the battle for our fundamental rights and liberties and this generation has to do that also. We Australians tend to think that our civil rights are beyond question. In recent times, almost every one of our fundamental rights and liberties has been either trampled on, whittled away, challenged or ignored in Australia.

2. Constitutional Commission, Report of the Advisory Committee on Individual and Democratic Rights under the Constitution, Canberra, Commonwealth of Australia, 1987

Deprivation of Liberty of Property (pages 45/46)

Perhaps the most fundamental principle of English law is that embodied in Magna Carta, which states the basic rule that no persons may be arbitrarily deprived of their liberty.

The committee recommended that a new subsection 80(ii) be inserted in the Constitution in the following terms:

80. The Commonwealth or State shall not

(ii) deprive any person of liberty or property except in accordance with a procedure prescribed by law which complies with the principles of fairness and natural justice.

Chapter 8 Australians And Equality Rights

Stemming from Magna Carta, the notion that everyone should be treated equally before the law found its way through the English legal system into the general body of Australian law.

The committee then noted that the Aborigines and other races were not included in the concept of “equal rights to all persons”, and discriminatory Federal and State laws founded on race continued to operate in Australia until relatively recent times. … “The committee considered that a general restatement of the ancient principle of equality embodied in Magna Carta should be stated in general terms which make it clear that any unfair discrimination between Australians should be placed beyond the powers of governments.

“Of course it is clear the governments should not be prevented from making appropriate distinctions between different Australians, founded on a rational basis. Ultimately it is only those who are unfairly discriminated against who are being denied equality before the law. It is clearly appropriate for a discrimination on the basis of age to be implemented, so that governments can enact laws which require that children must attend school, or which provide for the age at which children obtain full legal capacity.”

Other examples of justifiable discrimination were cited.

The committee recommended that in substitution for the existing non- discrimination provisions of section 117, there should be proposed the following:

117. The Commonwealth or a State shall not deny equality before the law to all the citizens and to all of the permanent residents of Australia and in particular the Commonwealth or a State shall not unfairly discriminate between any of them on any grounds.


3. J.M. Kelly, A Short History Of Western Legal Theory, Oxford University Press, 1992

Plato suggested that the dominant element in a state tends to make laws benefiting itself. He assigned to law not merely the regulation of conditions … but also the deliberate training (in the gardener’s quite as much as the teacher’s sense) of that society towards an ideal state of perfection. Thus he visualised law in an extra dimension which, although various regimes have tried to make it a reality, the West has on the whole rejected. Sparta is thought to have been his inspiration. This city enforced its manners by education and training on the young, and maintained them among them as adults. These manners had no basis in what we might recognize as a religious morality, but were geared to the production and constant renewal of a militarist and irresistible state.

Aristotle: Justice is of two kinds: `distributive’ and `corrective’. By distributive justice he meant `that which is exercised in the distribution of honour, wealth and other divisible assets of the community, which may be allotted among its members in equal or unequal shares. Allowing for the far greater range of material regulation characteristic of the modern state, we might say this definition corresponds evidently with `legislative justice’, the kind we expect to see displayed in statutes or other governmental measures which distribute benefits or impose burdens in patterns and proportions which we can accept as fair or rational having regard to the subject matter; the kind which is free of invidious discrimination. Aristotle’s meaning emerges from some general propositions, for example, that equals are to be treated equally, unequals unequally; that justice is proportion, injustice is disproportion.

Cicero the philosopher assigned to the positive laws of humans an altogether subordinate place by comparison with the law of nature. The mere fact that a measure has been enacted by a commonly accepted method does not of itself entitle it to respect as being just, or perhaps even to the title of `law’ at all if it defies higher principles.

St Thomas Aquinas insisted on the connection of law with reason, the channel through which the law of nature could be apprehended by human intelligence: `Human law has the quality of law only in so far as it proceeds according to right reason; and in this respect it is clear that it derives from the eternal law. In so far as it deviates from reason it is called an unjust law, and has the quality not of law but of violence. … Laws may be unjust … if the burdens, even though they are concerned with the common welfare, are distributed in an inequitable manner throughout the community. Laws of this sort have more in common with violence than with legality.’

Laws that are rightly enacted prove deficient where to observe them would be to offend against natural right. In such cases judgement should be delivered, not according to the letter of the law, but by recourse to equity, this being what the lawgiver aimed at.

`Now human law is enacted on behalf of the mass of men, the majority of whom are far from perfect in virtue. For this reason human law does not prohibit every vice from which virtuous men abstain; but only the graver vices from which the majority can abstain; and particularly those vices which are damaging to others.’ This emphasis on the element of `harm to others’ appears in another passage in briefer form, where St Thomas derives the law against murder from the natural- law precept, `Do harm to no man’. It will be noticed that this theoretical basis for punishment, though St Thomas did not expressly declare it the only legitimate one, will not stretch far enough to cover the punishment of acts of moral turpitude not impinging on others – a curious premonition of the views of J.S. Mill.

English lawyer Christopher St German (c.1460-1540) stated the criteria for legislative justice in terms which come straight from St Thomas: `A human law is called just, by the standard of its end, its author, and its form. Its end: when it is designed for the common good. Its author: when it does not exceed the powers of him who enacts it. Its form: when its burdens are laid upon the subjects in a due proportion, with the common good in view. And if its burdens are laid upon people in an unfair way, even if its purpose be the common good, it does not bind him in conscience.’

Locke `A man … having, in the state of Nature, … only so much [power] as the law of Nature gave him for the preservation of himself and the rest of mankind, this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative (sic) can have no more than this. Their power in the utmost bounds of it is limited to the public good of the society.’

The French Declaration of the Rights of Man and the Citizen, made by the National Convention in 1789, identified as the object of all political association the conservation of `the natural and imprescriptible rights of man: liberty, property, security and resistance to oppression’; and defined liberty as the freedom to do whatever does not injure others, who also enjoy the same freedom.

Montesquieu perceived that political liberty could not exist where any two of the three powers – legislative, executive and judicial – were in the hands of the same organ of the state.

In France, in the 1760s, a group of Enlightenment authors known as Physiocrats contended that judges, before enforcing the laws, ought to satisfy themselves that the laws they were being called on to apply actually conformed with the dictates of the `natural laws of the social order’ and of justice.
`It is clear that any judge who took it upon himself to inflict penalties on his fellows by virtue of obviously unjust laws would be guilty of fault. Judges, therefore, should measure the ordinances of positive law against the laws of essential justice which govern the rights and duties of all men … before taking it upon themselves to give judgement according to those ordinances.’

Beccaria (1764): `Every individual would choose to put into the public stock the smallest possible portion of his own liberty; as much only as was sufficient to engage others to defend it. The aggregate of these, the smallest portions possible, forms the right of punishment; all that extends beyond this is abuse, not justice.’

A core belief of the Benthamites was the sacredness of individual freedom, including freedom to contract, on the grounds that the individual must know best for himself what was most conducive to his own welfare.

J.S Mill, Utilitarianism, ed. H. Acton (London, 1972):
`All persons are deemed to have a right to equality of treatment, except when some recognised social experience requires the reverse. And hence all social inequalities which have ceased to be considered expedient, assume the character not of simple inexpediency, but of injustice, and appear so tyrannical, that people are apt to wonder how they ever could have been tolerated; forgetful that they themselves perhaps tolerate other inequalities under an equally mistaken notion of expediency, the correction of which would make that which they approve seem quite as monstrous as what they have at last learnt to condemn. The entire history of social improvement has been a series of transitions, by which one custom or institution after another, from being a supposed primary necessity of social existence, has passed into the rank of a universally stigmatised injustice and tyranny. So it has been with the distinctions of slaves and freemen, nobles and serfs, patricians and plebeians; and so it will be, and in part already is, with the aristocracies of colour, race and sex.’

Herbert Spencer: `Only one essential rule bound men, namely, that while each may do what he likes, he may not injure the equal freedom of others’ – a kind of restatement of Kant’s formula.

German jurist Gustav Radbruch: As for positivism, the doctrine that law was whatever a statute said, had rendered German justice helpless when confronted with cruelty and injustice once these wore statutory vesture. Post-war decrees invalidating Nazi laws, even though not in force, `their content was already binding before those deeds were committed; and in their content such laws correspond to a law which is above statute, however one might like to describe it: the law of God, the law of nature, the law of reason’. … Radbruch saw a revival of belief in a transcendent law by which evil positive laws may be condemned as `legal injustice’.

A much stronger recognition now exists that the rights of a majority, while they must include the determination of the state’s general policy, cannot extend to invading a range of irreducible individual and hence also minority rights. This is reflected in the European Convention on Human Rights and Fundamental Freedoms (1950).

Radbruch: When laws deliberately defy the instinct for justice, then they are void, `the people owe them no obedience, and lawyers, too, must find the courage to deny them the character of law.’ Another German jurist, Helmut Coing, (1985): `Deliberate violations [of natural law] must be met with passive resistance.’

Dworkin (1978): `Justice as fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice.’

4. Henry E. StrakoschState absolutism and the rule of law, Sydney University Press, 1967. (a history of the codification of civil law in Austria)

The author argues that codification, not only in Austria but also elsewhere, was an essential step in the creation of the modern state. In both France and Austria the new codes preserved the rule of law and (in an age when the state was arrogating to itself a monopoly of government) they safeguarded individual freedom. Indeed the author argues that codification of civil law provided the legal basis of European liberalism.

“It is necessary to make a clear distinction between civil law and public law and ‘the ordinances arising from the latter. … If administrative ordinances are being confused with laws as such the latter will soon be regarded as unstable, because dependent from the whims of the supreme power. That cannot fail to have a deleterious influence on the confidence in the administration of justice, because justice means always a fixed norm, of equal validity for all.” (author’s translation of Ofner, Vienna 1889)

“The fact that there is a nexus between the positive law of the state and universally binding norms of human behaviour, in other words, between the coercive and the normative aspect of law, has always been recognized.”

“Legal rationalism aimed at a concordance of the normative and the positive function of law, at an agreement between them which left to each its specific function. It was developed by the great scholastic masters of the thirteenth century in the doctrine of natural law. … Law was an instrument of government, directed towards a rationally conceived common good. Its purpose was rational and so was its content. Precisely for that reason the relation between law as a norm and law as a command, or between the moral and legal order, was real, without being one of identity. Each of them retained its specific character and yet they formed an indivisible whole.

Positive laws had to fit into the more universal framework of the moral order: that alone gave them their character as laws. But it was never postulated that every positive law expressed a moral norm. The content of many laws was morally neutral (traffic laws are a modern example) and such laws were morally obligatory simply because they belonged to a morally valid legal order. Any law made by public authority was valid so long as it did not offend against the more universal norm of the moral law.” [The law for compulsory wearing of helmets is not a traffic law. Traffic laws deal with competing claims and correlative rights and obligations of road users. Helmet laws regulate individual behaviour irrespective of other road users, or, indeed, any other persons, and questions of competing claims and the rights and obligations of others do not arise.]

“The French Revolution seemed to mark the final victory of an ineluctable trend towards the subjection of the law to the sovereign will of the legislating power and all attempts to preserve a rule of law alongside effective government by a centralized and absolutist state seemed doomed to failure. … Kant cut that Gordian knot … . First, he denied the existence of a direct nexus between the moral and the legal order. … But at the same time Kant preserved fully the objective nature of the law. The law, though divorced from the moral order, did not become an instrument in the hands of the state, in whatever lofty metaphysical terms the latter might be conceived”

P. 206 “The means by which the Kantian critique of natural law was applied to the codification of civil law was the creation of the concept of `strict law’ … which could be fully expressed by way of positive laws. … Strict law was also restricted law: it could not operate throughout the whole realm of social and political relations. … It was a law whose formal character confined it to the production of the autonomy of the person; it was a law of freedom. … Strict law led, by the logic of its formal character, to the division of law into a zone of private law where `any action is lawful whose maxim allows the arbitrary freedom of each to co-exist with the freedom of everyone according to the a general law’, and a zone of public law.”

P. 208 Zeiller, honoured in 1811 as `the creator of the civil code’ in Austria – still in force – stated in 1801: “The primary rule of legal obligations is therefore: Abstain from all actions which restrict the free and legal activity of others.”

P.210 “Any preface to the code on the nature of law would have to be couched in approximately the following terms: `Law is the limitation of freedom to actions compatible with the freedom of others’. … The rights due to every man, in so far as he was a rational being, had been known to him by the creator of nature through reason and through a natural feeling for right and wrong. Justice had to be the basis of the positive law of the state if government were not to degenerate into arbitrary rule.”

“The Kantian doctrine, while removing the immediate obstacles on the way of a creation of a civil law, had therefore also destroyed any possibility of limiting the positive legislative power of the state by a set of norms of greater universality and inherent strength.”

Function of law to seek a balance in the socio-political order between anarchic individualism and totalitarian collectivism. … The law which evolved in Western Christendom established a point of balance in European history. It was able to perform that function because it expressed the two basic principles of Western Christendom: a belief in the rational and organic nature of society, and a belief in the transcendent value of the human person. … It gave rise to a form of political organization which became typical of European civilization, that of `lawful government’ which means the containment of the power of public authority within the framework of the law.

“The nadir of lawlessness in internal government was reached with Hitler’s doctrine of `Law is what benefits the people.’ (See Heinrich Mitteis, Uber das Naturrecht, Deutsche Akademie der Wissenschaften zu Berlin, Berlin 1948, p. 37.) This doctrine of a `common good’, which destroyed the last vestige of a balance between the rights of the person and the rights of the community, was carried by the totalitarian powers … into international relations. … Japan, Italy, Germany … flouting of the public law of the world. … the peoples of Britain and the USA rallied to the defence of what they again understood to be the basic law of civilized life: the preservation of personal freedom in the state.”

After referring to international institutions which influence on national policies, “the very existence of a forum where an international tension … is subjected to public debate … tends towards the establishment of the universal category of the law as the standard of action. But … international law is still confined to relations between sovereign states; individuals may become increasingly the objects, but they are not yet the subjects of international law. (Within the sovereign state the positive law of its making continues to hold sway.) The struggle between the obsolescent category of the absolute sovereignty of the state and the newly emerging fact of the international community is still far from being resolved; it is, in fact, the characteristic feature of the second half of the twentieth century. And it is also the struggle for peace and for the survival of civilization.

“If we apply the findings of historical analysis … we must conclude that only a state whose sovereignty is not absolute, that is, a state recognizing the obligatory force of law as arising ultimately from principles lying beyond and above the positive legislative power of government, can be integrated through the due process of law into an international community. … The restoration of a dualism of government, the restoration of an equality of status between the law and the state, is therefore the presupposition of the solution of the most urgent problem of modern civilization, the problem of an international order based on law. But that is the same as saying that the restoration of a balance between the autonomy of the person and the rights of the community which is the gravest problem of modern government, will come to pass by way of a new impact of international law on the internal law of the state.”

5. Justice BrandeisOlmstead v United States, 1928

Experience should teach us to be more on our guard to protect liberty when the Government’s purposes are beneficent. The greatest dangers to liberty lurk in the insidious encroachments by men of zeal, well meaning but without understanding.

6. Universal Declaration of Human Rights, 1949, as proclaimed by the General Assembly of the United Nations; the following are some extracts.


… Whereas it is essential … that human rights should be protected by the rule of law, …

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, … or other status”.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 12

No one shall be subjected to arbitrary interference with his privacy … Everyone has the right to the protection of the law against such interference or attacks.

Article 29:

1. …

2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedom of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Azzopardi’s summary: Freedoms to be limited only as necessary to safeguard rights of others.

7. International Covenant on Civil and Political Rights, 1976

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home … .

Article 26

All persons are equal before the law and are entitled without any distinction to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, … or other status.

On 25 September 1991, Australia acceded to the First Optional Protocol to the Covenant, making it possible for any individuals within Australia who considered that any of their human rights as set out in the Covenant had been violated to take their case to the United Nations Human Rights Committee.

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