liberty, rights and justice which should be recognised in the way in which law
is interpreted. Put broadly, law should promote equality,
449
advance individual
rights
450
and not cause misery.
451
In consequence, statutes are construed, if
possible, so as not to deprive subjects of their rights and liberties.
452
To protect liberty law should protect the person. This incorporates a broad
requirement for people not to injure their neighbour,
453
which entails some
specific duties: law must forbid intentional aggression,
454
lack of due care,
455
failure to control dangerous activities,
456
and discrimination on the grounds of
race.
457
In the same vein the law must protect rights and liberties such as
freedom from wrongful arrest and custody
458
the right to navigate a river,
459
the
right to remain in a country,
460
the right to bodily integrity (encompassing, for
example, the right to refuse a blood test),
461
the right to personal privacy,
462
the
right of free speech,
463
and
the right of a family to be
together.
464
Of special
importance are procedural rights in law as in retaining legal representation,
465
trial by jury
466
and, as required by the rules of natural justice, being accorded a
hearing before a potentially adverse decision is made.
467
449
Baker (1990)
450
Fredman (1992), Director of Public Prosecutions v Serratore (1995) 132 ALR 461,
Kioa v Minister for Immigration (1984) 53 ALR 658
451
Minister for Immigration v Petrovski (1998) 154 ALR 606.
452
The spirit behind this, viz that liberty is precious, is expressed in R v
Boulton; Ex parte Beane (1987) 70 ALR 225 where the court said that in the absence
of statutory provisions, a person in Australia who has not breached Australian
law is entitled to his freedom.
453
Donoghue v Stevenson [1932] AC 562 at 580.
454
Harris, 1986, p 236, citing Pound Social Control through Law (1942)
455
Harris, 1986, p 236, citing Pound Social Control through Law (1942)
456
Harris, 1986, p 236
457
Koowarta v Bjelke-Petersen (1981) 153 CLR 168, 220
458
Re Bolton; Ex parte Beane (1987) 70 ALR 225, 231-232
459
Fergusson v Union Steamship Co (1884) 10 VLR (l) 279
460
Minister for Immigration v Sciascia (1991) 103 ALR 307
461
O’Brien v Gillies (1990) 69 NTR 1
462
Tackiack v Commissioner of Australian Federal Police (1995) 131 ALR 319, 330
463
Brown v Classification Review Board (1998) 154 ALR 67, 76
464
Minister for Immigration v Teoh (1995) 183 CLR 273, 291, 128 ALR 353, 365 per
Mason CJ, Toohey J
465
Bell v Australian Securities Commission (1991) 103 ALR 689
466
Tassell v Hayes (1987) 71 ALR 480
467
Gladstone v Armstrong [1908] VLR 454; Barratt v Howard (2000) 170 ALR 529,
543
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