The Express Protection of Rights (VCE SSCE Legal Studies): Revision Notes
The Express Protection of Rights
What are express rights?
Express rights are rights that are specifically written into the Australian Constitution. They are also known as explicit rights or entrenched rights because they can only be removed or changed through a successful referendum under section 128 of the Constitution.
The Australian Constitution contains only five express rights. These rights function as explicit checks on the law-making power of parliament. If parliament passes a law that infringes an express right, the High Court can declare that law invalid (ultra vires). This makes express rights more secure than other protections, such as common law rights (rights developed by judges through cases) or statutory rights (rights created by legislation), which can be abolished at any time by parliament simply passing a new law.
How ultra vires works as a check on parliament:
When a law is declared ultra vires (beyond legal power), it means the High Court has found that parliament acted outside its constitutional authority. The law becomes invalid and unenforceable. This is one of the most powerful ways express rights act as checks on parliamentary power - they create constitutional boundaries that even parliament cannot cross without first amending the Constitution through referendum.
Express rights in the Constitution tend to be framed as limitations on what the Commonwealth Parliament cannot do, rather than as positive rights that individuals can claim.
The five express rights
The Australian Constitution protects five express rights:
- Freedom of religion (section 116) - prevents the Commonwealth from establishing a state religion, imposing religious observance, prohibiting the free exercise of religion, or requiring religious tests for Commonwealth office
- Free interstate trade and commerce (section 92) - interstate trade must be absolutely free
- Acquisition of property on just terms (section 51(xxxi)) - the Commonwealth must provide fair compensation when acquiring property
- Trial by jury (section 80) - indictable Commonwealth offences tried on indictment must be heard by a jury
- Non-discrimination based on state residence (section 117) - people cannot be discriminated against based on which state they live in
Critical Limitation:
Most of these rights restrict only the Commonwealth Parliament, not state parliaments. This significantly limits their scope as checks on parliamentary power. When analyzing express rights in exams, always consider whether the right applies to Commonwealth law only or to both Commonwealth and state law.
Freedom of religion (section 116)
Section 116 prevents the Commonwealth Parliament from making laws that:
- Establish a state religion - declaring a particular religion as the official national religion
- Impose any religious observance - forcing people to follow religious practices
- Prohibit the free exercise of any religion - stopping people from practising their religion (though this can be limited for national security or to ensure people follow the law)
- Require a religious test for Commonwealth office - making religious belief a requirement for holding any Commonwealth position
Constitutional extract - section 116:
"The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."
How the High Court has interpreted section 116
The High Court has interpreted 'religion' widely. In Adelaide Company of Jehovah's Witnesses Inc. v Commonwealth, Chief Justice Latham held that section 116 also protects non-believers by providing for the right of a person 'to have no religion'.
However, other parts of section 116 have been interpreted narrowly, which limits its effectiveness as a check on parliament.
Case Study: Williams v Commonwealth (2012) 248 CLR 156
Facts: Ronald Williams challenged the Commonwealth Government's funding of a chaplaincy program in his children's Queensland government primary school. The chaplain provided religious and personal advice but was not to impose religious beliefs. Williams argued this violated section 116 because chaplains had to meet a religious requirement, making the chaplain an 'office under the Commonwealth' subject to a 'religious test'.
Decision: The High Court unanimously rejected the section 116 challenge because chaplains were not Commonwealth employees. However, the Court found the funding agreement invalid because there was no Act of Parliament authorising the expenditure - the executive power alone was insufficient.
Significance: This case demonstrates that section 116 has limited scope. The Commonwealth can fund religious activities if done properly through legislation. After this decision, Parliament quickly passed the Financial Framework Legislation Amendment Act (No. 3) 2012 (Cth) to authorise such programs, though this was later also challenged successfully.
How this acts as a check on parliament: Section 116 restricts Commonwealth Parliament's ability to make laws about religion, but the narrow interpretation by the High Court means parliament retains considerable power in this area. The real check came from requirements about proper legislative authority, not the express right itself.
Free interstate trade and commerce (section 92)
Section 92 requires that trade and commerce between states must be absolutely free. This prevents parliament from treating interstate trade differently from trade within a state. It provides freedom of movement between states without burden or hindrance.
Constitutional extract - section 92:
"On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free."
For example, section 92 restricts the Commonwealth from imposing taxes on goods moving from one state to another. This right mainly refers to trade and commerce, but can also refer to movement of people between states.
Limitation established in Cole v Whitfield (1988) 165 CLR 360:
This case involved the importation of undersized crayfish from South Australia to Tasmania. The High Court decided that although states are restricted from making laws that interfere with free trade within the Commonwealth, some restrictions are acceptable as long as they:
- Do not impose a burden on interstate trade, or
- Do not discriminate against interstate trade
This narrowed the scope of section 92 as a check on parliamentary power.
Case Study: Betfair Pty Limited v Western Australia (2008) 234 CLR 418
Facts: Betfair, a company incorporated in Tasmania operating a national betting agency, challenged Western Australian legislation that prevented them from offering certain types of gambling (where punters could bet on a horse to lose). The Betting Control Act 1954 (WA) amendments prevented Betfair from participating in a market segment largely controlled by Western Australian bookmakers. Betfair argued this was inconsistent with section 92.
Decision: The High Court unanimously found the Western Australian legislation was discriminatory against a company incorporated outside that state, and therefore invalid.
Significance: This demonstrates that section 92 can effectively strike down state laws that discriminate against interstate trade and commerce.
How this acts as a check on parliament: Section 92 prevents both Commonwealth and state parliaments from creating laws that discriminate against interstate trade, protecting economic freedom and preventing protectionist legislation.
Acquisition of property on just terms (section 51(xxxi))
The Commonwealth must provide just terms (fair and reasonable compensation) when acquiring property. The High Court has held that property includes:
- Tangible and intangible property (physical items and intellectual property rights)
- Real property (land and buildings)
- Personal property (movable goods)
The Commonwealth can only acquire property for purposes for which it has the power to make laws, such as airports and national parks.
Constitutional extract - section 51(xxxi):
"The Parliament shall have power to make laws for the peace, order, and good government of the Commonwealth with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."
This section applies only to the Commonwealth Parliament, not state parliaments. However, the High Court has found that section 51(xxxi) can apply to state legislation passed under a Commonwealth funding agreement.
Case Study: JT International SA v Commonwealth (2012) 250 CLR 1
Facts: Tobacco companies challenged the Tobacco Plain Packaging Act 2011 (Cth), which required plain packaging for tobacco products. The Act restricted the colour, shape and finish of packaging, required distinguishing marks to be removed, and allowed brand names only in a limited way. The companies argued the Commonwealth had acquired their intellectual property rights (trademarks and copyright images) without just terms.
Decision: The High Court held there was no acquisition of property by the Commonwealth. The Court recognised that the Act regulated and restricted the tobacco companies' intellectual property rights, but it did not give any proprietary benefit or interest to the Commonwealth or any other person.
Key principle: The Court distinguished between taking rights and acquiring rights. To engage section 51(xxxi), an acquisition must involve somebody gaining a proprietary benefit or interest. Merely restricting how property can be used is not an acquisition.
Significance: This case shows the narrow interpretation of section 51(xxxi). Parliament can heavily regulate property use without having to pay compensation, as long as no one gains a proprietary benefit.
How this acts as a check on parliament: Section 51(xxxi) checks Commonwealth power only when property is actually acquired and someone gains a benefit. It does not prevent parliament from restricting property rights through regulation.
Critical Distinction: Taking vs Acquiring
For section 51(xxxi) to apply, there must be an actual acquisition of property - meaning someone gains a proprietary benefit or interest. Simply restricting or regulating how property can be used does not count as acquisition, even if it significantly reduces the property's value. This distinction greatly limits how section 51(xxxi) acts as a check on parliamentary power.
Trial by jury (section 80)
Section 80 requires jury trials for indictable Commonwealth offences tried on indictment. The High Court has found that a jury decision must be unanimous.
Constitutional extract - section 80:
"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."
Why section 80 provides only limited protection
Section 80 is a limited right for two key reasons:
- Most indictable offences are state crimes - section 80 only applies to Commonwealth offences, not the far more common state criminal offences
- Parliament decides what is tried "on indictment" - the High Court has ruled that 'indictable' means 'crimes tried on indictment'. Therefore, section 80 only extends to those serious offences that the Commonwealth Parliament decides will be tried on indictment
Exam Warning:
Be careful not to write that section 80 provides a 'right to trial by jury'. It only applies to Commonwealth indictable offences tried on indictment, not state indictable offences. This is a common mistake that loses marks in exams.
The key limitation is that parliament itself decides which offences are tried on indictment, meaning parliament can effectively avoid section 80 by choosing different trial methods for Commonwealth offences.
Case Study: Alqudsi v The Queen (2016) 258 CLR 203
Facts: Hamdi Alqudsi was charged with terrorism recruitment offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). He applied to be tried by judge alone under the Criminal Procedure Act 1986 (NSW). The prosecution supported this request. This raised the question of whether an accused person charged with a Commonwealth indictable offence could elect trial by judge alone.
Previous case: In Brown v The Queen (1986), the High Court had ruled that a jury trial could not be avoided in an indictable offence trial under Commonwealth law when the prosecution did not support the request.
Arguments: The Commonwealth Attorney-General argued that section 80 should be interpreted in light of its late-nineteenth century historical context and developments since Federation. All state Attorneys-General except South Australia's supported the application for trial by judge alone.
Decision: In a 6-1 decision, the High Court rejected the application. The majority stressed the importance of trial by jury and found that contemporary trial judges can address concerns about pre-trial publicity in terror-related cases.
Justice Gageler stated: "It is for the Commonwealth Parliament to determine whether an offence against a law of the Commonwealth is to be tried on indictment. Once that choice is made, s 80 is engaged and imposes limitations on the exercise of the legislative and judicial power of the Commonwealth."
Dissenting judgment: Chief Justice French argued that the decision in Brown should be reopened because it imposed "unwarranted rigidity" on the construction of section 80.
Significance: This case confirms that section 80 provides an inflexible right to jury trial once Parliament decides an offence will be tried on indictment. There is no flexibility for judge-alone trials in such cases.
How this acts as a check on parliament: Once parliament designates an offence as tried on indictment, section 80 prevents any flexibility to remove the jury. However, parliament retains power to decide which offences are tried on indictment in the first place.
Non-discrimination based on state residence (section 117)
Section 117 makes it unlawful for state and Commonwealth governments to discriminate against someone based on the state in which that person resides. For example, a resident of New South Wales living in Victoria cannot be subject to a Victorian law that would place them in a worse position than if they were born in Victoria.
Constitutional extract - section 117:
"A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."
The High Court has said that states can favour their own residents in limited circumstances, such as allowing only state residents to vote in that state's elections. This recognises that some differential treatment based on residence is necessary for the functioning of federalism.
Case Study: Street v Queensland Bar Association (1989) 168 CLR 461
Facts: Alexander Street, a New South Wales resident and barrister admitted in Victoria, South Australia and the Australian Capital Territory, challenged Queensland Bar Admission Rules. These rules required applicants to have resided in Queensland for at least 12 months and to have ceased practising law elsewhere. Street was refused admission as he intended to remain a NSW resident and continue practising in other jurisdictions.
Arguments: Street argued he could not comply with the Queensland rules without giving up his Sydney residence and NSW practice. He claimed the rules violated both sections 92 and 117 of the Constitution.
Decision: The High Court agreed with Street and declared that the Queensland Bar rules requiring an intention to be a Queensland resident were invalid.
Outcome: After Street commenced proceedings, the rules were amended to require only that an applicant intended to practise principally in Queensland after admission. This would have allowed Street to live in NSW and appear as a barrister in other states.
Significance: This case demonstrates that section 117 prevents state legislation from discriminating against people based on their state of residence.
How this acts as a check on parliament: Section 117 restricts state parliaments from creating laws that treat residents of other states less favourably than their own residents.
Strengths and weaknesses of express rights as checks on parliament
When evaluating express rights as checks on parliament, consider both their protective function and their limitations. The following analysis provides a balanced framework for understanding their effectiveness.
| Strengths | Weaknesses |
|---|---|
| Express rights impose clear limits on parliament when making law in certain areas. For example, section 116 prohibits the Commonwealth Parliament from making a law that restricts the free exercise of any religion. This protects the public against parliament being able to make any laws it wants. | The rights that are protected are limited in scope. Some express rights only apply to the Commonwealth and not state parliaments, and some rights are narrow (such as the right to trial by jury). This limits the restrictions imposed on the Commonwealth Parliament. |
| Express rights are entrenched and cannot be removed or amended without a successful referendum. Referendums are difficult to pass, so the express rights will continue to act as a check on parliament without risk of being removed. | Given referendums are so difficult to pass, the express rights in the Constitution have not increased in number or been amended since Federation. This reduces the checks on government because there is unlikely to be any additional rights added as checks on parliament in the future. |
| When a matter is brought before it, the High Court can act swiftly in declaring a law to be beyond parliament's power (ultra vires) and thus invalid. | For the High Court to hear a challenge regarding express rights, a case must be brought to court. The court is reactive. Litigation is expensive and time-consuming, and the person bringing the matter must have standing in the case. |
| The High Court is independent and will make decisions protecting express rights even if they are contrary to the views or preferences of governments. | The express protection of rights does not prevent the Commonwealth Parliament from passing the law initially. The law must be challenged in court to be declared invalid. |
Key Takeaways:
- Express rights are the only rights specifically written into the Australian Constitution and can only be changed by referendum under section 128
- There are only five express rights: freedom of religion (s116), free interstate trade (s92), acquisition of property on just terms (s51(xxxi)), trial by jury (s80), and non-discrimination based on state residence (s117)
- Express rights act as checks on parliament by allowing the High Court to declare invalid any law that infringes these rights
- Most express rights apply only to the Commonwealth Parliament, not state parliaments, which limits their effectiveness as checks on power
Essential Terms:
- Express rights - rights specifically listed in the Constitution, entrenched and changeable only by referendum
- Common law - law made by judges through court decisions
- Just terms - fair and reasonable compensation when property is acquired
- Ultra vires - beyond legal power or authority
- Standing - the legal right to bring a case to court
Critical Framework for Analysis:
Express rights provide constitutional checks on parliament but their effectiveness is limited by: narrow High Court interpretation, application mainly to Commonwealth not states, small number of protected rights, and the need for expensive litigation to enforce them. However, their entrenchment means they cannot be easily removed by parliament.