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Common law and Legislation “Vs” A bill of rights
The common law method of adjudication, in the context of the doctrine of judicial precedent has been fundamental to the protection of rights and the prevention of arbitrary determinations, a doctrine built up by centuries of lawmakers and legal minds, based on just outcomes with a social perspective.
Common law rights here in Australia have somewhat become the sole domain of the legal profession, with very little if any chance the average Australian trying to defend their innocence in a court above small claims jurisdiction, there are very few, who would have access to or the learned information on the precedent of law to put up a capable defense.
Many commentators who try and determine what exactly our rights may be, tend to apply written information like that of our Constitution, which offers the non legal mind very little help if any in our courts, with the attention to the very definition of the written word, a huge part of any constitutional argument.
A good example is the word “election”, legislation regarding elections allows for an election to be disputed, the courts in such cases, will ignore constitutional arguments and base their decisions on the legislation (electoral law), yet the word election in this case does not cover a general election, there fore leaving any challenge to an entire election process invalid, regardless of the conduct.
One would think that the best way around such issues, would be to argue based on our common law rights, but even the judges have trouble confronting such a separation of powers it would seem, so do we need a bill of rights to spell it out for us all?
What Is Common Law?
The word common law is used in many different contexts. The word common law is used in the present context to describe the body of legal principles and concepts, which were evolved over many centuries by judges in the original English courts of law.
When Australia became a colony of England, these precedents of common law ideals, became part of the Australian legal system, and remain that way today. Common law was influential in the creation of both the area of and restrictions on freedom in England and those parts of the world, which have the common law tradition as their legal foundation.
A study of the history, development and modern creation of common law is crucial to any analysis of the democratic ideals and social engineering that has helped to shape and mold our nation states.
The common law is the product of long evolved social values, which are judicially articulated and interpreted. It is in the interpretation that the community become disenfranchised from the protections of common law, making the Ideal of a bill of rights a positive move for the people and not so ideal for those involved with the judicial process.
The crucial importance of the common law has tended to be watered down in recent times, by legislative law searching for quick solutions to social problems, usually made between election cycles, by government representatives hoping to sell policy ideals, with the expectation that their sometimes hurried legislation has the answers to a particular social issue.
This tendency has also been the result of the pursuit of particular goals by special interest groups in disregard of long-term damage to the foundations of liberty and democracy. Even persons who recognise the importance of these rights in their general application sometimes urge departures from natural just ideals in relation to matters of particular concern to them, rather than looking at what may be best for Justice itself.
One of the greatest virtues of the common law system when it can be applied to justice for one and all is to be found in its capacity to balance the individual interests in liberty with the common concerns and interests of the community.
The down fall we see in the common law system in the modern era, is that of “the best legal mind wins the battle” with judges hands tied to some degree in support of the system they themselves are entwined, leaving a self represented litigant with out surety of justice.
The Government and the legal associations to some degree believe that the solutions to these problems can be sought by deliberate and calculated reform of the law through written legislation.
The issue for me immediately as a commentator and as one who has tried and failed in the courts to fight for justice, is that under common law, knowledge of case law becomes supreme, under legislative law, self interest in the upholding of the ideals of such written law by the writers, tends to ensure there is very little room for disagreement with the legislation itself, so a fault in the wording or its ideals, becomes law and in many cases denies justice.
Compare these facts to the ideals of a bill of rights, a bill of rights empowers the people them selves, it can be taught and understood, the biggest issue it raises is the effect it would have on those who work with in our judicial system, and those who now control legislation, and the many corporations that have an interest in both.
The common law method, as compared to reformist legislative change, results in gradual change through the determination of individual disputes in which parties present contending arguments regarding just conduct.
In deciding these disputes the courts draw upon precedents embodying the public morality, which have been developed over centuries.
Legislation does have the ability to compliment common law, but we find immediate conflict, with many magistrates and judges finding it hard to distinguish which law to follow, that being the case, what chance does a self represented litigant have, and dare we allow justice to become the sole domain of only those with a sturdy hip pocket?
The question must be asked; if common law brings justice closer than legislation, what makes the courts superior to politicians, bureaucrats and academics as custodians of individual freedom and public interest? Several reasons may be given.
One is the impartiality and competence that is associated with courts functioning in the common law tradition, as we frequently still hear of innocent parties finding justice, more so than we do as the result of legislative law.
Other factors make me believe that legislation itself in the most fails to protect, is that common law itself is a product of reasoned disputation where individual rights and duties are claimed and evaluated. No comparable process exists in the political system in which ideological considerations often prevail and aggressive pressure groups and political self-interest, exercise influence without regard to reason, justice or community values.
Common law need never be abolished, and neither should legislation that compliments justice and community values, the missing link is the empowerment of those in pursuit of their own self determination with a firm understanding of what they are allowed to or not to do, legislation becomes law, before the people know it even exists, and legal precedents occur just as fast, leaving the people them selves with no idea of exactly what the rules and laws, or should I say their rights and liberties actually are.
The prosecution of any citizen by way of legislative law, they had no idea existed, is an attack on justice at its grass roots level, do we have freedom of speech, or is even that freedom reliant on what the speech contains, for these are the questions very few of us can answer, so a bill of rights is needed so we can all have a fair understanding.
A bill of rights would help guide our legislators, and reduce the conflicts of poorly written legislation on our judiciary, it would help future generation understand the laws of community living, and to know when their rights are being abused. Modern common law and the rafts of written legislation are leaving the people behind, and not only placing too much power in the hands of the legal profession and our political representatives, but at the same time costing we the people in more ways than just our hip pocket.
Legislation in a modern technological age is necessary and useful, but never to be conceived as perfect. The common law method, like all human creations, is also far from absolute. Common law can usefully be supplemented by legislative action, but modernization is not the same as social engineering, a bill of rights has its place between the two in our modern society, it allows the people understanding, gives the policy makers firm guidelines, and backs up the judicial process with a firm understanding of our social status and community consciousness and values.
Over the past few decades, under the guise of modernism of the system, social activists have been implementing their own policies as law, with very little respect if any for the ideals of the community they bind. Hence if we are to be rewarded with a bill of rights, best it is retrospective, to ensure its core values are instantly recognizable, a huge task indeed, but what options do we have?
If we continue on the path we now travel, common law will continue to be smothered out of existence and legislation will become the primary source of social regulation. Legislators and bureaucrats will continue to claim the moral high ground, consider their superior wisdom by indulging in structuring the order of our society in disregard of the communities preferred value structure.
It is this kind of legislative activism that leads to progressive erosion of human rights under the colour of safeguarding public interests. If common law continues to be diluted by legislation, there fore no longer working as it once did, can it offer protection for individuals, against the over reaching and ever-expanding power of government?
Can it protect the freedoms and liberties expected by the community it offers to serve? And if the effect of legislative law on our inherited common law system, has watered down the ideals we as a country have come to believe we have as natural rights, dare we not seek change?
I say a Bill of rights is not only a necessity but long over due, as much as I have tried to collate my own example for which I believe suits the Australian way of life, any move towards such written rights, “Must” be accompanied with open and honest debate in the public arena.
Common law will adapt easier to a bill of rights than our policy writers, but as the saying goes “such is life” the future is about empowering the people to live with out having a minority dictate their social status.
I am still unsure when and how policy makers came to believe they were employed to dictate every aspect of our lives, but I can definitely see where that decision is taking us.
It is I who decide whom I love, with whom I associate with, what I wear, where I reside, and my mode of transport, as long as such decisions do not interfere with others. I want to know what my rights are, so I can protect them for my children and theirs.
A bill of rights protects our self determination from those who think they know better, it will ensure that society in general understand not just their rights and liberties but are able to protect them, it should become a part of our educations system, and be embraced by our policy makers, if indeed they are chosen to represent we the people.
In the most we believe we have rights and liberties right now, but in my years of study, I have yet to find them, we may have common law rights, we may have constitutional entitlements, and legislation may, I repeat may include some protections, all we need to do is remove the word MAY!
Mark M Aldridge
My Idea of an Australian bill of rights is on my website www.markmaldridge.com under “Bill of rights, debate please”
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