Your Rights - Level Up

What are rights?

A right is a legal or moral entitlement to have or be able to do something. Rights are not options or privileges, they are actions that we are free to do or access without interference by the government or other groups. Our rights in Australia are provided by legislation, common law or by the Australian Constitution.

Knowledge is power!

Rights provided by law are often contextual, meaning they apply to specific circumstances. The key to understanding your rights and getting the best results is to know the law and processes relevant to the circumstances you are dealing with.

For example, any person arrested by police has certain rights that police must provide; any person imprisoned is entitled to certain rights as a prisoner; people subjected to government decisions usually have a right to procedural fairness (often called due process).

Rights provided by legislation

Rights provided by legislation can be found in the Acts relevant to the particular circumstances. For example, the following legislation provides rights to protect particular groups of people:

Some specific circumstances in which it may be crucial to understand your legal rights include:

  • Expecting businesses to keep your personal information private.
  • Having your car pulled over (and possibly searched) by police.
  • Collecting money owed for work done as a builder.
  • Attending a tribunal, such as for family, housing, or mental health matters.
  • Being on parole or community supervision orders.

Knowing the laws and relevant processes in these situations and others can be crucial to getting a fair and just outcome.

Common law rights include:

Rights provided by common law (often called ‘judge made law’) are found in judgements of past court cases. These rights include:

  • The right to procedural fairness in government decisions (often called ‘due process’).
  • The right to a fair trial.
  • The right to have representation at trial for serious offences.
  • The right to be presumed innocent until proven guilty.

Procedural fairness is crucial for fairness in decision making processes. While the circumstances requiring procedural fairness are common, it is a right that is often not known or properly understood. Procedural fairness includes the right to know what and when a decision will be made, to know what information will be considered in the decision, and to be given an opportunity to respond to the information considered in the decision. Read more about procedural fairness from the Australian Public Services Commission.

Many rights provided in contract law are found in common law. Certain criminal offences are also defined by common law precedent. Common law also functions to provide interpretation of the words of legislation, giving clarity to how certain legislative rights apply and in what circumstances.

Click here for further info on common law rights in Australia.

Constitutional rights include:

Constitutional rights are those provided in the Australian Constitution. Contrary to popular belief, there are not many individual rights provided by the Constitution. The Constitution essentially serves as a set of instructions for making and applying the law in Australia. It contains no such rights such as the right to privacy or the right to free speech.

Rights provided by the Constitution include:

  • The right to vote
  • The right to trial by jury for some offences (although, this ‘right’ is forced in some situations; a ‘right’ that is forced can be considered to not be a right at all)
  • The freedom to practice any religion

Click here to view the Australian Constitution .

Human rights

Human rights in Australia are provided by legislation and common law (judge made law). Australia has no Bill of Rights. While Australia is signatory to many treaties, the rights provided by those treaties are only enforceable if they have been enacted in some legislation.

Certain states and territories in Australia provide human rights by legislation, including Victoria, Queensland and the Australian Capital Territory. The South Australian Parliament is currently considering introduction of human rights legislation.

Find out more

Contact Level Up to find out more about your rights in specific situations.

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