A substantial question. I will work through this chronologically, covering the common law world from its foundations through to the present, with particular attention to cases directly relevant to the Australian context of this series of discussions.
The Foundational Instruments – Before the Cases
Before the cases, the instruments that gave them their foundation:
Magna Carta 1215 – Not a case but the origin of everything that follows. Chapter 29 (originally Chapter 39): “No free man shall be seized, imprisoned, dispossessed of his free tenement or liberties or free customs, outlawed or exiled, or in any way ruined, nor will we proceed against or prosecute him by force or by arms, but by the lawful judgment of his peers and by the law of the land.” Still part of the common law inheritance of every Australian jurisdiction. Referenced in this series in the context of local government rate enforcement.
Petition of Right 1628 – Affirmed that the Crown cannot imprison without cause, cannot levy taxes without Parliament’s consent, cannot billet soldiers on civilians without consent, and cannot impose martial law in peacetime.
Bill of Rights 1689 – Established Parliamentary supremacy, freedom of speech in Parliament, prohibition on excessive bail and cruel and unusual punishment, and the right to petition the Crown.
The Great Common Law Cases
Entick v Carrington (1765) 19 State Tr 1030
The single most important case on the right of a man to his property and papers against government intrusion.
The King’s messengers, acting under a general warrant issued by the Secretary of State, broke into John Entick’s house and seized his papers. Lord Camden CJ held the warrant void and the entry a trespass. The foundational statement:
“By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence… If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.”
This case established that the government has no power to act against a person’s property except by specific lawful authority. Every exercise of government power must be traceable to a specific legal source. This principle runs directly through everything discussed in this series.
Bushell’s Case (1670) 124 ER 1006
William Penn was prosecuted for unlawful assembly. The jury acquitted him. The judge imprisoned the jury for failing to convict. Vaughan CJ held the imprisonment unlawful — a jury cannot be punished for its verdict. Established the independence of juries as the bulwark of the subject’s liberty against government prosecution.
Semayne’s Case (1604) 77 ER 194
“The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.”
The origin of the principle that a man’s home is his castle. Entry by officers of the law into a man’s dwelling requires lawful authority. A private person may resist unlawful entry even by officers of the Crown.
Somerset v Stewart (1772) 98 ER 499
Lord Mansfield held that slavery had no basis in the common law of England. A man could not be property. The common law presumes liberty. Any restriction on liberty requires specific positive legal authority. The case did not abolish slavery by statute but established that the common law does not support it and that the courts of England would not assist in its enforcement.
Wolfe Tone’s Case (1798) 27 State Tr 614
Theobald Wolfe Tone was tried by a military tribunal and sentenced to death. His counsel applied for a writ of habeas corpus, arguing that as a civilian he could not be tried by a military court while the civil courts were open. Lord Kilwarden CJ granted the writ. Established that civil courts must remain open to the subject and that military jurisdiction over civilians is unlawful while the ordinary courts are functioning.
Ashby v White (1703) 2 Ld Raym 938
Cited in the image we examined in the previous exchange. Chief Justice Holt: “By the common law of England, every commoner hath a right not to be subjected to laws made without their consent.” Established that the denial of a legal right is actionable even if no financial damage results – the wrong is the denial of the right itself. Injuria sine damno — wrong without damage – is actionable in certain fundamental cases.
Dr Bonham’s Case (1610) 8 Co Rep 107
Coke CJ held that an Act of Parliament that made a man a judge in his own cause was void – nemo judex in causa sua. Although this principle was not consistently followed in England after the Glorious Revolution, it remained influential in the American colonies and fed directly into American constitutional law. In Australia it feeds into the Chapter III analysis – courts must be genuinely independent and impartial.
The Habeas Corpus Cases
R v Turlington (1761) 97 ER 741
Extended habeas corpus to private confinement – not just imprisonment by the Crown. Any unlawful detention of any person can be challenged by habeas corpus regardless of who holds the person.
Ex parte Milligan (1866) 71 US 2 (USA)
The US Supreme Court held that civilians cannot be tried by military tribunals while civil courts are open and functioning. The principle mirrors Wolfe Tone – resonant for any discussion of the limits of executive power over individuals.
The Australian Foundational Cases
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
Discussed extensively in this series. O’Connor J’s statement of the principle of legality: “It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.” The foundational Australian statement of the principle that Parliament must speak clearly to abrogate fundamental rights. Confirmed and applied by the High Court continuously to the present.
Mabo v Queensland [No 2] (1992) 175 CLR 1
The High Court recognised the native title rights of the Meriam people, overturning the doctrine of terra nullius. Brennan J confirmed that the common law of Australia does not give effect to unjust or racially discriminatory doctrine and that international law is a legitimate and important influence on the development of the common law. Foundational for the recognition that pre-existing rights to land can survive without explicit statutory creation.
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
The High Court held that the constitutional guarantee of judicial review under section 75(v) of the Constitution cannot be removed by Parliament. Privative clauses – statutory provisions purporting to exclude the courts from reviewing executive decisions – cannot remove the supervisory jurisdiction of the High Court over officers of the Commonwealth acting in jurisdictional error. An act done without jurisdiction is a nullity regardless of what Parliament attempts to enact.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Discussed extensively in this series. State parliaments cannot vest in State courts functions incompatible with the courts’ constitutional role as repositories of federal judicial power. The institutional integrity of courts – their independence and impartiality – is constitutionally protected. Legislation that substantially undermines that integrity is invalid.
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
The High Court recognised the implied constitutional freedom of political communication – a freedom that protects the ability of citizens to communicate about matters relevant to government and political affairs. This is not a positive right but a structural constraint on legislative power.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Elaborated and refined the implied freedom of political communication. Established the test for whether a law validly burdens that freedom — it must be reasonably appropriate and adapted to serve a legitimate end compatible with the constitutionally prescribed system of representative and responsible government.
Wik Peoples v Queensland (1996) 187 CLR 1
The High Court held that the grant of a pastoral lease does not necessarily extinguish native title. The rights of native title holders and pastoral lessees can coexist to the extent they are not inconsistent. Significant for the proposition that statutory grants do not automatically sweep away pre-existing rights.
Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309
Strong affirmation of the principle of legality. Gleeson CJ: a court will not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language.
Kirk v Industrial Court of NSW (2010) 239 CLR 531
One of the most significant recent High Court decisions on the rule of law. The Court held that State Supreme Courts cannot be stripped of their supervisory jurisdiction over inferior courts and tribunals for jurisdictional error. The supervisory jurisdiction of State Supreme Courts – the ability to correct jurisdictional errors by certiorari and prohibition – is constitutionally entrenched. Parliament cannot remove it. Applied directly to the rates enforcement context: a magistrates court acting beyond its jurisdiction is subject to review by the Supreme Court and that review power cannot be taken away.
Totani v South Australia (2010) 242 CLR 1 and Wainohu v New South Wales (2011) 243 CLR 181
Discussed in this series. The High Court struck down legislation that directed courts to make orders against individuals based on executive declarations rather than proved facts, and legislation that required judges to make declarations without giving reasons. Courts must adjudicate according to law, and judicial reasoning must be exposed through reasons.
Burns v Corbett (2018) 265 CLR 304
Discussed in this series. Where federal jurisdiction attaches – including disputes involving corporations – the matter must be before a Chapter III court. A State tribunal cannot exercise federal judicial power. The determination of rights and liabilities where federal jurisdiction is engaged must be by a court meeting constitutional requirements.
The English and Commonwealth Cases Continuing to Influence Australian Law
Ridge v Baldwin [1964] AC 40
House of Lords. The rules of natural justice – the right to a fair hearing and the right to know the case against you – apply to any decision that affects the rights, interests, or legitimate expectations of a person. Not merely to courts, but to all bodies exercising statutory power over individuals.
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
House of Lords. A decision made without jurisdiction – including one based on a mistaken view of what the law requires – is a nullity. It is as if no decision had been made at all. The Court’s supervisory jurisdiction to review jurisdictional error cannot be ousted by privative clauses. The decision that launched the modern law of judicial review.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ Case)
House of Lords. Lord Diplock identified the three grounds of judicial review as illegality, irrationality, and procedural impropriety. Applied in all common law jurisdictions including Australia.
R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115
Lord Hoffmann’s statement of the principle of legality in its modern English form: “Fundamental rights cannot be overridden by general or ambiguous words… Parliament must squarely confront what it is doing and accept the political cost.” Directly cited in Australian cases including by the ALRC in Report 127.
A v Secretary of State for the Home Department [2004] UKHL 56 (Belmarsh case)
House of Lords. Indefinite detention without trial of foreign nationals suspected of terrorism was incompatible with the right to liberty under the Human Rights Act 1998 and could not be justified. Lord Bingham’s speech on the rule of law and the protection of individuals from arbitrary detention is among the most cited judicial statements on liberty in the common law world.
International Human Rights Instruments — Not Cases But Foundational References
Universal Declaration of Human Rights 1948 — Article 17: the right to own property and not to be arbitrarily deprived of it. Article 8: the right to an effective remedy. Article 10: the right to a fair and public hearing.
International Covenant on Civil and Political Rights 1966 – Article 1: self-determination. Article 7: no cruel, inhuman or degrading treatment. Article 9: liberty and security. Article 14: equality before courts and fair trial. Article 17: privacy, family, home. Cited by Kirby J in Forge v ASIC and confirmed as a legitimate influence on Australian common law development.
The Hierarchy of Significance for This Series
If one were to rank by direct relevance to the themes of this entire conversation – property rights, personal liberty, accountability of officers, limits on government power, procedural fairness, and Chapter III:
Entick v Carrington – the absolute foundation. Government must have specific authority for every act against a person’s property. No authority, no right to act.
Magna Carta Chapter 29 – the origin. No free man shall be dispossessed except by the law of the land.
Potter v Minahan – the Australian expression of the principle of legality. Parliament must speak clearly to take rights away.
Plaintiff S157 – the constitutional minimum of judicial review cannot be removed.
Kirk v Industrial Court – the State equivalent. Supervisory jurisdiction is constitutionally entrenched.
Kable and its progeny – courts must be genuinely independent. Institutional integrity is constitutionally protected.
Anisminic – a decision without jurisdiction is a nullity. The supervisory power of the courts cannot be ousted.
Commonwealth v Verwayen – government conduct creating reliance cannot be resiled from unconscionably.
R v Rondo – authority to act against a person requires specific grounded justification. Tainted process taints all that follows.
Johnston v Carroll – public officers must genuinely consider the rights affected before acting. Assertion of authority is not enough.
Fiat justitia ruat caelum – let justice be done though the heavens fall.
The cases in this list represent eight centuries of the common law’s insistence on that proposition – that the rights of the individual man, to his person, his property, his land, and his liberty, are not abstractions to be acknowledged in theory and overridden in practice. They are enforceable, reviewable, and constitutionally protected. The machinery of government operates within them, not above them.
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