The centrepiece of the Australian legal order is the Constitution of the Commonwealth of Australia (the ‘Constitution’). While the Constitution has proven to be a long-lasting force for stability in Australia, it does not cover the field in terms of constitutional law. Australian lawyers have long considered what lies beneath the written Constitution. This is particularly so in light of the fact that Australia lacks a constitutional or statutory charter of rights. Despite this apparent lacuna of rights protection, it has increasingly been acknowledged that the common law plays an important role in the protection of fundamental rights and freedoms in Australia. Indeed, it has been suggested that a ‘common law bill of rights’ now operates in Australia, and that common law rights protections have a ‘constitutional dimension’. In this PhD thesis I consider why, what and how fundamental rights are protected by the common law in Australia. I argue that it is Australia’s common law constitution that provides the overarching answer to each of these questions.

After introducing my contention, the notion of common law constitutionalism and my methodological approach in the Introduction, I move to the question of why such a small ‘c’ constitution exists in Part B. This is done via chapters considering the history of the Australian legal order, the central notion of the rule of law, and the source of legitimacy underpinning the Australian constitutional order. After laying these foundations, in Part C I turn to what fundamental common law rights are protected in Australia. Rather than cataloguing the whole range of rights protected by the common law, I focus on three examples: personal liberty, access to court and freedom of speech. Consideration of these examples illustrates the type of rights protected by the common law, and how the courts come to determine their existence. In Part D, I then explore how such rights are protected, with a focus on the remedial options available to courts where common law rights are infringed by legislation. In particular, I consider the presumption of statutory interpretation known as the principle of legality, pursuant to which legislation will not be construed so as to infringe common law rights absent express words or necessary implications. I also consider the invalidation of statutes on the basis that they are incompatible with fundamental common law rights. I argue that the invalidation route is highly unlikely to ever be taken by the High Court, and that it is unnecessary in any event, for the Court has other more palatable avenues by which to avoid the sting of a statute which egregiously breaches common law rights.