(b) The common law The common law recognises a number of rights and freedoms. The common law system was inherited by Australia from the UK, developed over many centuries, and viewed as ‘origin and promoter of individual rights’.63 The common law is often cited as one of the reasons why Australia’s current system of human rights protection is sufficient. This is simply not the case. Common law protections are fragile, as Parliament can pass a law that overrides them at any time. Additionally, many of the human rights the Australian Government has agreed to uphold are not protected at all by the common law. Some key common law rights and protections include: • fair trial rights, including: » the right to legal representation in serious criminal cases » the privilege against self-incrimination » a presumption of innocence in criminal trials » a presumption that the standard of proof in criminal cases is beyond reasonable doubt • freedom of movement • prohibitions on trespass (which partially protect the right to privacy) • the right to sue in tort (for example for false imprisonment) • a presumption against retrospective laws • the rules of procedural fairness.64 The common law protects human rights indirectly through two key principles of statutory interpretation. First, the ‘principle of legality’ presumes that Parliament ‘does not intend to interfere with common law rights and freedoms except by clear and unequivocal language’ and that ‘statutes be construed ... to avoid or minimise their encroachment upon rights and freedoms at common law’.65 Secondly, if there is ambiguity in a statute, interpretation must ‘favour construction [of a statute] which is in conformity and not in conflict with Australia’s international obligations’.66 It is possible for the common law to evolve over time to develop stronger rights protections, and 52 international human rights law can influence the development of the common law. In Mabo (No 2), Justice Brennan said that, while the common law does not necessarily conform with international law … international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.67 However, the common law cannot offer protection where common law rights have been clearly restricted by legislation. Therefore, as the Hon Michael McHugh AC KC has observed, the development of the common law by an independent judiciary by no means provides an adequate safeguard for human rights. It cannot provide the same level of protection as a national Bill of Rights can do.68 The evolution of the common law over time also depends on individuals bringing cases to court, which leads to ad hoc developments arising from individual injustice, rather than a holistic (and prevention-focused) approach to human rights protection. Professor Conor Gearty has argued, drawing upon modern UK caselaw up to the passage of the UK Human Rights Act, that the common law can be ‘blind to power and privilege, and therefore to the commitments of equality and non-discrimination’ and has been relied upon to protect political and moneyed interests, including to the detriment of individual rights.69 With the passage of the UK Human Rights Act, the UK Government recognised that traditional common law rights provided insufficient coverage and cannot be relied upon to protect human rights in the absence of a statutory instrument. In the time since the UK Human Rights Act was passed, the UK common law has developed in tandem, leading to the enrichment of an already strong tradition, through the infusion of standards that complement and fortify existing rights and principles.70 In the UK, and in Australian jurisdictions, Human Rights Acts have been used to protect traditional rights and freedoms that are also human rights. The following are a few examples.