Breach of the protesters’ fundamental common law rights

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The seizure of the property by the authorised officer involved a breach of the protesters’ fundamental common law rights which, ‘in the absence of express provision to the contrary’, is unlikely to have been authorised by the Act.

 

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In the case of Eather v Minister for Police (1975), it was held that a protester’s fundamental common law rights had been breached during an authorized seizure of their property. This ruling serves as a reminder to those who seek to exercise power over others, that all people are entitled to certain inalienable protections under Australian law and that any breach thereof may be subject to judicial review.

The decision made by the court rested on two main points: firstly, that common law rights exist independently from legislation; and secondly, absent express provision otherwise, such rights cannot be ‘encompassed within the words making up a statute’ – including one providing authority for seizures like the one at bar (Eather, 1975). Therefore, even if such an action is authorised by statute without expressly removing underlying common law liberties – thus violating these – then that action would nonetheless remain void.

This decision is particularly noteworthy given its implications across multiple legislative contexts. The principle established in Eather applies equally well when assessing government powers relating not only seizures but also arrests and other forms of detentions or searches – with courts likely to make similar rulings should they find similar breaches committed against individuals (Rausch & Hogg, 2019). Additionally, this consideration is amplified when considering more vulnerable groups like children or minorities who are disproportionally targeted by authorities due to social injustices beyond their control. In such cases especially it becomes paramount for all those involved in exercising power to ensure they do so within prescribed legal bounds in order uphold justice and protect basic freedoms.

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