This is a profound question and one that sits at the intersection of natural law, common law, and constitutional theory. It deserves a serious and careful treatment rather than a dismissive one. Here is a draft that develops the argument honestly and rigorously.
Rights Before Governments: What No Parliament Can Lawfully Take Away
Lex naturalis est immutabilis — The natural law is unchangeable.
The previous two articles addressed the rights of Australians born before 1973, and the inherited rights of their children. Both articles were grounded in positive law – statutes, cases, and constitutional provisions. This article goes deeper. It asks the question that underlies all of those arguments, and that no court has yet been willing to answer directly but that no court has ever convincingly refuted.
Where do rights come from? And if they come from somewhere other than Parliament, can Parliament take them away?
The Foundation That Positive Law Cannot Ignore
Every legal system that has ever existed has had to answer, at some point, the question of what gives law its authority. The answer given by the English common law tradition, and by the constitutional framework inherited by Australia, has never been Parliament alone.
Magna Carta 1215, to which Australia’s constitutional inheritance traces directly, did not grant rights. It acknowledged them. Its opening words recognised that the liberties set out therein were held by free men as of right, not as a grant from the Crown. The distinction is fundamental. A grant can be taken back. An acknowledgement of what already exists cannot be unmade by the grantor, because the grantor did not create it.
Blackstone, whose Commentaries on the Laws of England remain foundational to the common law tradition, stated the principle plainly. The absolute rights of man are the rights of personal security, personal liberty, and private property. These rights, he wrote, are not derived from society or from government. They exist independently of both. Society and government exist, in the common law tradition, to protect those rights, not to create them.
Natural Law and the Common Law
The common law has never been purely positivist. It has always recognised, at its foundations, a body of principle that stands above statute. The principle of legality, confirmed by the High Court in Potter v Minahan (1908) 7 CLR 277, is one expression of this. The Court’s refusal to interpret legislation as abrogating fundamental rights without clear and express language reflects an acknowledgement that some rights exist prior to and independently of whatever Parliament happens to say on any given day.
The natural law tradition, which underlies both the common law and the constitutional frameworks of the English-speaking world, holds that human beings possess certain rights by virtue of their nature as human beings. In the Western legal tradition, that nature has been understood as God-given. Whether one approaches this from a theological perspective or from the secular natural law tradition developed by Grotius, Locke, and Blackstone, the conclusion is the same. There exists a category of rights that no government created and that therefore no government can legitimately extinguish.
Locke, whose political philosophy directly influenced the constitutional traditions inherited by Australia, stated that men are endowed by their Creator with certain natural rights, and that governments are instituted among men to secure those rights, deriving their just powers from the consent of the governed. A government that acts to extinguish the very rights it was instituted to protect has, in this tradition, exceeded its legitimate authority.
Mabo and the Limits of Sovereign Power
Mabo v Queensland (No 2) (1992) 175 CLR 1 is the most significant acknowledgement by an Australian court that positive law has limits grounded in something deeper than parliamentary will. The High Court held that the common law doctrine of terra nullius, by which the laws of England were imported into Australia as though it were an empty land, did not reflect the reality of prior occupation and prior law.
The significance of Mabo for present purposes goes beyond native title. Brennan J, writing the leading judgment, acknowledged that the common law itself recognises that there are rights that exist prior to and independently of the sovereign’s enactments. The sovereign’s acquisition of territory does not extinguish rights that pre-existed that acquisition unless the sovereign acts with clear and express intention to do so.
The principle articulated in Mabo is that law does not arise from power alone. It arises from the recognition of prior existing rights. Where those rights are not clearly extinguished, they survive.
That principle is not limited to Indigenous land rights. It is a statement about the nature of rights themselves. Rights that exist prior to the sovereign’s enactments are not the sovereign’s to give or take away at will.
A Child Born of God
Every person born into the world arrives with no contract with any government, no application lodged with any Parliament, and no consent given to any legislative scheme. They arrive as a human being, possessed of the natural capacities of reason, conscience, and will, and entitled to the natural rights that flow from those capacities.
No government created those capacities. No Parliament enacted them into existence. They are inherent in the human person by virtue of their creation.
The question then is not what rights Parliament has granted. The question is what authority Parliament has to extinguish rights it did not create. In the natural law tradition that underlies the common law, the answer is that Parliament has no such authority. It may regulate the exercise of rights. It may define the circumstances in which rights are to be balanced against one another. But it cannot extinguish the rights themselves, because it was not their author.
This is not a fringe position. It is the foundational premise of every significant constitutional instrument in the English-speaking world. The Commonwealth of Australia Constitution Act 1900 (Imp) itself derives its authority not from the Parliament it created, but from the Imperial Parliament that enacted it, and behind that from the Crown, and behind the Crown from the constitutional tradition that limits what any sovereign may do to the people over whom they exercise authority.
The Constitutional Expression of Natural Rights
Section 51 of the Constitution grants enumerated powers to the Commonwealth Parliament. Those powers are grants, not unlimited authority. A Parliament that acts within its granted powers is acting lawfully. A Parliament that purports to extinguish rights that exist prior to and independently of its authority is acting beyond the scope of any grant.
The Australian Citizenship Amendment Act 1984 (Cth) purported to remove British subject status from persons in whom that status had vested at birth. It did not obtain their consent. It did not acknowledge the prior existing nature of that status. It proceeded as though Parliament were the author of the status it was purporting to remove.
On the natural law analysis, that Act exceeded Parliament’s legitimate authority in relation to persons whose status had vested independently of any parliamentary grant. Parliament may not extinguish what it did not create, without the consent of the person in whom it vests, any more than a King may declare that the sun no longer rises.
The Rights That Cannot Be Taken
Drawing together the threads from all three articles in this series, the rights that no Parliament can legitimately extinguish without consent include the following.
The right to life and personal security, which no statute creates and no Parliament can lawfully remove from an innocent person without due process grounded in natural justice.
The right to liberty of person and movement, including the right to leave and return to one’s home as established in Potter v Minahan, which flows from domicile of origin vested at birth and from the natural law right of every person to dwell in the community into which they were born.
The right to be treated as a member of the community into which one was born, with all the correlative rights and benefits that membership entails, which O’Connor J in Potter v Minahan identified as a right arising from birth and allegiance, not from statutory grant.
The right to natural justice and procedural fairness before any act of government that affects one’s person, status, or property, which Magna Carta acknowledged and which no Parliament has ever successfully claimed the authority to extinguish entirely.
The right to the benefit and protection of the law, which is the correlative of the duty of allegiance that every British subject owes to the Crown, and which cannot be severed from one side without severing the obligation on the other.
What Government Can and Cannot Do
This article does not argue for anarchy. Government has legitimate authority. Laws have legitimate force. Courts administer those laws and their decisions bind individuals as a practical matter.
What this article argues, grounded in the natural law tradition, the common law, Magna Carta, Blackstone, Locke, Mabo, and Potter v Minahan, is something more precise and more limited. It argues that there is a category of rights that government did not create and therefore cannot legitimately extinguish without consent. It argues that where a statute purports to remove such a right without consent and without clear express authority derived from the consent of the governed, that statute operates at the outer limit of legitimate authority and should be construed as narrowly as the principle of legality requires.
A person who asserts these rights is not claiming to be above the law. They are claiming that the law, properly understood, does not extinguish what it did not create. They are invoking the deepest foundations of the legal tradition from which Australian law derives, and asking that those foundations be taken seriously.
That is not a radical claim. It is the claim that Magna Carta made in 1215. It is the claim that the common law has made, in one form or another, ever since.
A Declaration of Natural and Common Law Rights
A person who wishes to place this position formally on record, in addition to the declarations of status addressed in the previous articles, may wish to include language of the following kind in any formal notice.
I was not created by any Parliament, any statute, or any government. The rights and capacities with which I was endowed at my creation are not the gift of any temporal authority, and are not subject to extinguishment by any temporal authority, without my free, informed, and express consent. I acknowledge the lawful authority of government within its proper sphere. I do not acknowledge any authority of government to extinguish rights that it did not create. All such rights are expressly reserved, without waiver, without limitation, and without prejudice.
Ubi jus ibi remedium — Where there is a right, there is a remedy.
This article is for information purposes only and does not constitute legal advice. Readers seeking to rely on any of the principles discussed should obtain independent advice from another source.
Last Updated 6 months ago
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