Rights Protection: The Australian Constitution (VCE SSCE Legal Studies): Revision Notes
Rights Protection: The Australian Constitution
The Australian Constitution is a fundamental legal document that outlines how Australia is governed. It establishes the Commonwealth Parliament, defines its law-making powers, and created the High Court to interpret constitutional disputes. While the Constitution does not contain a comprehensive bill of rights, it does protect certain basic human rights through two main mechanisms: express rights and implied rights.
The role of the Australian Constitution
The Australian Constitution serves multiple critical functions in Australia's legal system. It establishes the structure of government, including creating both houses of the Commonwealth Parliament—the Senate (upper house) and the House of Representatives (lower house). Beyond these structural elements, the Constitution provides important protections for human rights, though these protections are more limited than those found in countries with formal bills of rights.
Understanding how the Constitution protects rights is essential because these protections cannot be easily removed. Unlike ordinary statutes that Parliament can change at any time, constitutional rights require much stronger safeguards before they can be altered or abolished.
Constitutional rights are significantly more secure than rights protected by ordinary legislation. While Parliament can modify or remove statutory rights through normal legislative processes at any time, constitutional rights require a much more rigorous process involving direct approval from the Australian people through referendum.
Express rights
What are express rights?
Express rights are human rights explicitly written into the wording of the Australian Constitution. These rights are described as "entrenched," meaning they enjoy special protection and cannot be removed or changed without following a specific constitutional process. This process requires a referendum—a public vote in which all Australian citizens participate.
For a referendum to successfully change the Constitution, it must achieve a double majority. This means the proposed change must receive:
- A majority of votes nationally (more than 50% of all Australian voters), AND
- A majority of votes in a majority of states (at least four of the six states must vote in favour)
This requirement makes constitutional rights much more secure than ordinary legislation. Parliament cannot simply pass a new Act to override or remove express rights. By contrast, common law rights and rights protected by statute law can be abolished or modified at any time through normal parliamentary processes.
The five express rights
The Australian Constitution protects five specific express rights. Each addresses a particular aspect of citizenship and government power:
1. Right to free interstate trade and commerce (section 92)
This right ensures that trade and commerce between states and territories can flow freely without barriers. It prevents governments from imposing discriminatory taxes or restrictions on goods moving from one state to another.
For example, Victoria cannot charge special taxes on goods imported from New South Wales. This provision helps maintain a unified national economy and prevents states from protecting local industries through trade barriers.
2. Right to not be discriminated against based on state of residence (section 117)
This right prohibits the Commonwealth from treating citizens differently based on which state they live in. All Australians must be treated equally under Commonwealth law, regardless of their location. For instance, the Commonwealth cannot create laws that favour Victorian residents over those living in Queensland.
3. Right to receive 'just terms' when property is acquired (section 51(xxxi))
When the Commonwealth compulsorily acquires property (takes ownership against the owner's wishes), it must pay fair and reasonable compensation. Additionally, the Commonwealth can only acquire property for purposes within its constitutional powers, such as building airports or other federal infrastructure. This protection ensures citizens are not unfairly deprived of their property by government action.
4. Right to trial by jury for Commonwealth indictable offences (section 80)
This right guarantees that people charged with serious Commonwealth crimes (indictable offences—offences generally heard before a judge and jury in higher courts) receive a trial by jury. Commonwealth indictable offences include terrorism charges, people smuggling, importing illegal drugs, and large-scale fraud. Having one's guilt determined by a jury of peers is considered a fundamental safeguard against wrongful conviction.
However, this protection has limitations. It only applies to Commonwealth offences, and most serious crimes fall under state jurisdiction. Each state and territory has its own legislation governing jury trials—for example, Victoria's Juries Act 2000 (Vic) provides similar protections for state indictable offences.
5. Right to freedom of religion (section 116)
This right provides limited protection for religious freedom. It prohibits the Commonwealth from making laws that establish an official state religion or prevent people from practising their chosen religion. However, this protection is narrow in scope and only restricts Commonwealth actions, not state government laws.
Case Study: Alqudsi v The Queen (2016)
This High Court case demonstrates how express constitutional rights operate in practice. The case involved a person charged with seven terrorism recruitment offences under Commonwealth legislation. The accused requested a trial by judge alone, without a jury.
The prosecution and courts had to determine whether section 80 of the Constitution allowed this request. After detailed consideration, six of the seven High Court justices ruled that the constitutional right to trial by jury is mandatory—the accused could not waive this right. The Constitution requires a jury trial for Commonwealth indictable offences, and this requirement protects both the accused and the integrity of the justice system. The application for a judge-alone trial was therefore dismissed.
Key outcome: This case illustrates that express constitutional rights are enforceable and that the High Court takes its role as guardian of these rights seriously.
Implied rights
Understanding implied rights
Implied rights are rights not explicitly written in the Constitution's text but which the High Court has determined must exist based on the Constitution's structure and purpose. The High Court discovers these rights through interpretation when resolving disputes about constitutional meaning.
When parties challenge legislation as breaching constitutional protections, High Court justices may determine that certain words or phrases in the Constitution imply the existence of particular rights, even though the Constitution doesn't state them directly. Once the High Court recognizes an implied right, it receives constitutional protection similar to express rights.
The implied right to freedom of political communication
The most significant implied right recognized by the High Court is the freedom of political communication. This is the right to freely discuss and debate political issues, subject to reasonable restrictions.
The foundation for this implied right comes from sections 7 and 24 of the Constitution, which state that members of the Senate and House of Representatives must be "directly chosen by the people." The High Court reasoned that for citizens to make informed electoral decisions, they must be able to access information about political candidates, their views, and policy positions. This requires a system of representative government—where elected members represent the people's views and values in Parliament.
For representative government to function properly, both political candidates and ordinary citizens must be able to communicate freely about political matters. They need to discuss policies, debate issues, and express opinions without excessive government interference. Without this freedom, citizens cannot make truly informed voting decisions.
Case Study: Australian Capital Television Pty Ltd v Commonwealth (1992)
This landmark case first established the implied right to freedom of political communication. The Commonwealth Parliament had passed the Political Broadcasts and Political Disclosures Act 1991 (Cth), which banned individuals and organizations from making political broadcasts or advertising on radio and television during election campaigns.
The High Court was asked to determine whether this legislation breached the Constitution. The justices ruled that although the Constitution doesn't expressly mention freedom of speech, it does establish a system of representative government in sections 7 and 24. This system requires freedom of political communication to function properly.
The Court held that Australians must be able to advertise and discuss their views, policies, and opinions in public forums like television and radio before elections. This enables voters to make informed decisions when electing representatives. The legislation was therefore invalid as it conflicted with the constitutional requirement for representative government.
Key outcome: This decision established an important precedent. Later cases, including Theophanous v Herald & Weekly Times Ltd (1994) and Lange v Australian Broadcasting Corporation (1997), confirmed and expanded this right. The Theophanous case extended the right to allow public comments about members of parliament and their suitability for office. The Lange case clarified that freedom of political communication exists at all times, not just during election periods, though it remains limited to political matters rather than being a general right to free speech.
Restrictions on implied rights: balancing competing interests
While Australians have the right to freedom of political communication, this right is not absolute. The High Court has recognized that this freedom can be restricted when necessary to protect other important interests, such as individual privacy, reputation, or dignity.
The challenge for courts is determining when restrictions on political communication are reasonable and justified. This requires balancing the value of free political discourse against other legitimate concerns.
Case Study: Clubb v Edwards; Preston v Avery (2019)
This case examined whether state laws restricting anti-abortion protests violated the implied right to freedom of political communication. Fertility clinics provide various health services, including lawful pregnancy terminations. Anti-abortion protesters regularly demonstrated outside these clinics, attempting to dissuade women from proceeding with terminations.
To protect clinic clients and staff from intimidation and harassment, the Victorian and Tasmanian Governments passed "safe access zone" laws. These laws prohibited protesters from demonstrating within 150 metres of fertility clinics.
Two anti-abortion protesters (one in each state) were charged and convicted under these laws. They challenged the legislation's validity, arguing that it breached their constitutional right to freedom of political communication by preventing them from publicly expressing views on abortion—clearly a political issue.
In April 2019, the High Court rejected their appeals. The Court acknowledged that Australians have the right to freedom of political communication but ruled that this doesn't give people the right to force political messages on others in ways "inconsistent with the human dignity of that person." The safe access zone laws were valid because they balanced freedom of communication against the rights and dignity of clinic users.
Key outcome: The Court established a test to determine whether legislation disproportionately impacts the implied right to freedom of communication. This test helps assess when restrictions on political communication are justified and when they go too far.
Enforcement of constitutional rights
All rights protected by the Australian Constitution—both express and implied—are fully enforceable through the High Court. This enforcement mechanism is crucial for maintaining constitutional protections.
When individuals, organizations, or state governments believe that Commonwealth legislation infringes a constitutionally protected right, they can challenge the law in the High Court. If the High Court determines that legislation does breach a constitutional right, it can declare that law unconstitutional and invalid. Once declared invalid, the legislation cannot be enforced.
When legislation is struck down, the Commonwealth Parliament has limited options:
- It can amend the legislation to remove the unconstitutional provisions while keeping the remainder of the law
- It can attempt to change the Constitution itself through a referendum under section 128, though this is difficult to achieve given the double majority requirement
This enforcement system ensures constitutional rights have real practical effect. However, accessing the High Court is expensive and time-consuming, which can limit the ability of ordinary citizens to challenge potentially unconstitutional laws.
Strengths and weaknesses of constitutional protection
Strengths
Entrenchment provides strong protection
Express rights can only be abolished or changed through the referendum process, requiring a compulsory public vote. This means parliamentary majorities cannot remove human rights without the Australian people's explicit support. This entrenchment provides significantly stronger protection than ordinary legislation.
Implied rights show flexibility
The implied right to freedom of political communication demonstrates that human rights can be recognized through constitutional interpretation, even when not explicitly written. This shows the Constitution has some flexibility to adapt to changing circumstances.
Full enforceability through the High Court
All constitutional rights are fully enforceable. The High Court can declare invalid any statute that breaches constitutional rights, providing a practical remedy when rights are violated. This enforcement mechanism has real teeth.
Capacity to evolve through interpretation
The High Court's power to interpret constitutional meaning allows the Constitution to keep pace with changes in community values and remain relevant over time. This interpretive flexibility helps prevent the Constitution from becoming outdated.
Weaknesses
Difficulty of the referendum process
Changing express rights through referendum is extremely difficult. Successful referendums require high levels of voter support, and Australians have historically been reluctant to vote for constitutional change. This means human rights protections may lag behind evolving community attitudes.
Very limited scope of protection
Very few human rights receive express constitutional protection—only five specific rights. Even these expressly protected rights are limited in scope. For example, the right to trial by jury only applies to Commonwealth indictable offences, which represent a small fraction of serious crimes. Constitutional rights often function more as restrictions on parliamentary power than positive rights individuals can exercise.
High costs of enforcement
Taking cases to the High Court is expensive and time-consuming. Many individuals and groups cannot afford to challenge potentially unconstitutional legislation, limiting the practical accessibility of constitutional rights protection.
Reactive rather than proactive
The High Court cannot interpret the Constitution's meaning or declare rights infringements until a relevant case is brought before it. This reactive approach means constitutional protections only develop when someone with resources challenges a law, rather than providing comprehensive upfront protection.
Key Points to Remember:
Express and implied rights:
- The Australian Constitution protects human rights through express rights (explicitly stated) and implied rights (determined through High Court interpretation)
- The five express rights cover: free interstate trade, non-discrimination based on state residence, just terms for property acquisition, trial by jury for Commonwealth indictable offences, and limited freedom of religion
- Express rights can only be changed through a referendum requiring a double majority (national majority plus majority in at least four states)
Freedom of political communication:
- The most important implied right is freedom of political communication, based on the constitutional requirement for representative government
- This right is not absolute and can be reasonably restricted to protect other interests like human dignity and privacy
Enforcement and evaluation:
- Constitutional rights are fully enforceable through the High Court, which can declare laws invalid if they breach these rights
- While constitutional protection provides strong safeguards, it covers very few rights and is difficult to access and update
Key terms to remember:
- Express rights: Rights explicitly stated in the Constitution, changeable only by referendum
- Implied rights: Rights recognized through High Court interpretation of constitutional meaning
- Referendum: Public vote required to change the Constitution's wording
- Double majority: Requirement for constitutional change (national majority + majority in at least four states)
- Freedom of political communication: Right to discuss political issues, implied from sections 7 and 24
- Representative government: System where elected members represent people's views in Parliament
- Indictable offence: Serious offence heard before a judge and jury in higher courts
Exam guidance:
- When analysing constitutional rights protection, always distinguish between express and implied rights
- Use case studies to demonstrate how rights operate in practice (Alqudsi, Australian Capital Television, Clubb v Edwards)
- When evaluating effectiveness, balance strengths (entrenchment, enforceability) against weaknesses (limited scope, accessibility)
- Remember that freedom of political communication is not absolute—it can be reasonably restricted to protect other interests