[24][25] These doctrines have been characterised as 'freedoms' or 'guarantees' by members of the High Court, and the court has been wary of describing them as 'implied rights' or 'implied constitutional rights'. The degree of protection offered by these statutes varies. In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v the Commonwealth (1992) 177 CLR 106, the majority of the High Court held that an implied freedom of political communication exists as an incident of the system of representative government established by the Constitution. [17] By convention, the Governor-General and members of parliament are required to swear an oath or affirmation of allegiance before taking office. George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013) 33. R v Secretary of State for the Home Department; Ex Parte Simms [2002] 2 AC 115 131. Section 92 is notable for prescribing 'absolutely free' trade and commerce between the States. Another is that the Governor-General by convention acts on the advice of the Prime Minister. In normal times, Simpson writes, ‘when there was neither war, nor insurrection, nor widespread problems of public order’, few would deny that people in the United Kingdom enjoyed a relatively high level of personal and political freedom, and had done so earlier in the eighteenth and nineteenth centuries, though most of the population could only participate very indirectly, if at all, in government.[12]. Kathleen Clubb was convicted of an offence under s 185D of the Public Health and Wellbeing Act 2008 (Vic), which prohibits a person from communicating in relation to abortions to persons accessing or attempting to access premises where abortions are provided, if the communication is reasonably likely to cause distress or anxiety. Thomas Poole, a critic of the theory, has written that the main lines of the theory of common law constitutionalism are well defined: ‘The common law is said to comprise a network of moral principles which reflect values considered to be fundamental. Stay informed with all of the latest news from the ALRC. [41] A more recent statement of the principle appears in Re Bolton; Ex parte Beane: Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.[42]. 1.9 Before the wave of international conventions in the aftermath of the Second World War, legislation and the common law were the principal sources of protection of rights and freedoms. Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1, 349 (Dixon J). In South Australia v Totani, French CJ said: [I]t is self-evidently beyond the power of the courts to maintain unimpaired common law freedoms which the Commonwealth Parliament or a State Parliament, acting within its constitutional powers, has, by clear statutory language, abrogated, restricted, or qualified.[36]. The meetings produced a new draft which contained substantially the same principles of government as the 1891 draft, but with added provisions for responsible government. In 1988, the original copy of the Commonwealth of Australia Constitution Act 1900 from the Public Record Office in London was lent to Australia for the purposes of the Australian Bicentenary. Robert French, ‘Common Law Constitutionalism’ (Robin Cooke Lecture given at Wellington, New Zealand, 27 November 2014). Queensland 4003. However, these matters are not the subject of this Inquiry. In Coleman v Power, Gleeson CJ distinguished between statutes enacted before Australia ratified a relevant international treaty and those statutes enacted since ratification, arguing that only the later statutes are capable of being interpreted, where possible, in line with Australia’s obligations under the relevant international treaty: Coleman v Power (2004) 220 CLR 1, [19]. [11] Momcilovic v The Queen (2011) 245 CLR 1, [51]. In Dietrich v The Queen, Mason CJ and McHugh J said: Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions.[67].