Ruddock v. Vadarlis (2001) 110 FCR 491, . Beaumont J. explained that the absence of a common law application for recourse in the form of the common law prerogative in habeas corpus was fatal. See also CPCF v Minister for Immigration  HCA 1.2.7 To the extent that Australian law has protected and promoted rights and freedoms, these have long been laws and statutes enacted by judges.  In a 2013 speech, former Supreme Court of Australia Justice The Honourable John Dyson Heydon AC QC discussed some of the benefits of legal and common law protection of rights. He said laws and common law often protect rights through «detailed and precise rules» and defend «human rights directly and specifically»: 2.48 At common law, people who are not Australian citizens («foreigners»), with the exception of hostile foreigners in Australia, must be treated as falling within the scope of the «Queen`s Peace», and not as outlaws, who are placed beyond the ordinary legal system. The High Court has repeatedly held that these individuals are entitled to the same protection of civil rights that the law affords to Australian citizens.  2.32 The principle of legality may apply not only to laws, but also to regulations and other delegated legislation, where it may indeed be of greater importance, since such laws are not adopted directly by Parliament. Until 1963, the High Court considered the decisions of the House of Lords to be binding, and that there was considerable uniformity between Australian and English common law. In 1978, the High Court declared that it was no longer bound by the decisions of the Judicial Committee of the Privy Council.   2.43 Many common law rights may therefore remain largely and perhaps for this reason be more susceptible to legal interference.  In light of Lord Mansfield`s landmark decision in Somersett v. Stewart (1772) 98 ER 499, the right not to be subjected to slavery (but not necessarily the right to forced labour) seems to be one of the fundamental freedoms of the common law. The common law is enacted by the judges of a court using precedents – decisions in similar previous cases – to decide how they will judge a case before them. If there are no previous cases with similar circumstances, a new decision is made, which would then become a precedent for a future similar case. If no law applies to a particular situation, customary law applies; However, statutory law always takes precedence over customary law. 2.22 The term «common law constitutionalism» is now «often used to refer to the theory that the most basic constitutional norms of one or more particular countries (whether or not they have a written constitution) are matters of common law.»  According to this theory, it is said that the common law contains basic moral principles against which the legality of government decisions and even parliamentary acts can be examined.  Many of the rights and freedoms enumerated in the Mandate, including those not fully protected by the Australian Constitution, would therefore be considered constitutional.
2.8 Taking the example of the right to a fair trial, Heydon stated that the rules contained in some statutes and the common law «have been developed over a very long period of time by judges and legislators who have deeply reflected on conflicting interests and values in the light of practical experience of the conditions in society to which the rules have been applied.»  A Bill of Rights is a law that establishes the rights of the citizens of a country. The term is derived from the United Kingdom Bill of Rights of 1688, which affirmed Parliament`s rights to the monarch (in particular, the introduction of freedom of expression in Parliament) and included rights affecting the individual, such as the prohibition of excessive fines and cruel and unusual punishment. In the context of the rule of law, an important provision was that laws should not be enforced, repealed or suspended without the consent of Parliament. The Australian legal system has several forms. It includes a written constitution, unwritten constitutional conventions, statutes, ordinances and the common law system established by the courts. Its legal institutions and traditions are essentially derived from those of the English legal system.  Australia is a common law jurisdiction whose judicial system has its origins in the common law system of English law. The common law of the country is applied uniformly in all states (subject to extension by law).  2.2 The rights, freedoms and privileges set out in the Mandate have a long and exceptional legacy.
Many have been recognized in Australia, England and other common law countries for centuries. They are part of the history of the common law and embody key moments in constitutional history, such as the sealing of the Magna Carta in 1215, the regulation of parliamentary rule after the Glorious Revolution of 1688, and the passage of the Bill of Rights Act of 1688.  They have been recognized and developed by the courts, and some have been explained and confirmed by historical laws and developed by modern laws. 2.24 Some even suggest that the courts can invoke this common law Constitution to strike down acts of Parliament.  It has been said that the theory reverses the traditional relationship between law and common law.  Professor Jeffrey Goldsworthy, a critic of common law constitutionalism, wrote that the theory amounts to a «takeover bid» that replaces legislative supremacy with judicial supremacy.  The political constitution, writes Thomas Poole, is «turned upside down in favour of a system of constitutional politics whose central institution is the Common Law Court.»  Momcilovic v. The Queen (2011) 245 CLR 1,  (Heydon J.) (citations omitted). In Malika Holdings v.
Stretton, Judge McHugh said: «There are undoubtedly fundamental legal principles – a civil or criminal trial is supposed to be a fair trial, a criminal charge must be proven beyond any doubt, people must not be arbitrarily arrested or searched, laws, especially criminal laws, do not operate retroactively, the higher courts have jurisdiction to prevent jurisdiction not authorized by subordinate courts, examples are examples. Clear and unambiguous language is required before a court can determine that Parliament intended to repeal or amend these and other basic principles. Malika Holdings Pty Ltd v. Stretton (2001) 204 CLR 290, . Other lists appear in: Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed., 2014); Spigelman, above No. 43; Williams and Hume, about n 5. See also Australian Law Reform Commission, Traditional Rights and freedoms – Encroachments by Commonwealth Laws, Documents No. 46 (2014) Ch 19. The right to privacy under the ICCPR includes a right to privacy (including intimate behaviour between consenting adults), as confirmed, for example, by the United Nations Human Rights Committee in Toonen v. Australia. There does not yet appear to be such a broad common law presumption that would specifically limit the extent of Parliament`s interference with privacy.
The Australian Parliament has passed laws that enforce Australia`s human rights obligations. These laws make it illegal to discriminate against vulnerable groups in society. These include freedom of association, which appears to be included in the common law, given the views of the Federal Court as a whole in Dr. Haneef`s case.