Constitution of Australia - Interpretation - Protection of Rights

Protection of Rights

See also Australian constitutional law – Protection of rights

The Australian Constitution does not include a Bill of Rights. Some delegates to the 1898 Constitutional Convention favoured a section similar to the Bill of Rights of the United States Constitution, but the majority felt that the traditional rights and freedoms of British subjects were sufficiently guaranteed by the Parliamentary system and independent judiciary which the Constitution would create. As a result, the Australian Constitution has often been criticised for its scant protection of rights and freedoms.

Some express rights were, however, included:

• Right to trial by jury – Section 80 creates a right to trial by jury for indictable offences against Commonwealth law. However, the Commonwealth is left free to make any offence, no matter how serious the punishment, triable otherwise than on indictment. As Justice Higgins said in R v Archdall (1928): "if there be an indictment, there must be a jury, but there is nothing to compel procedure by indictment". In later cases, the High Court has split: some judges have attempted to find a right, on the basis that no constitutional provision may be understood in a way that renders it empty; others have thought that this would inject content, beyond the boundaries of judicial interpretation. The Court has been flexible on the meaning of "jury": there will be a "jury", although not all members are male as would have been the Framers' understanding; but there will not a valid decision by a jury, if there is a majority verdict (even though that is permitted in some states). In practice, however, no major issue of abuse of this uncertainty has been raised.
• Right to just compensation – Section 51(xxxi) creates a right to compensation "on just terms" for "acquisition of property" by the Commonwealth from any state or person. The "acquisition of property", itself, is not restricted, but the High Court has understood the expression broadly so as to give a broad entitlement to compensation.
• Right against discrimination on the basis of out-of-State residence – Section 117 prohibits disability or discrimination in one state against a resident of another state. This is interpreted widely: the restriction will be invalid if it treats an out-of-state resident more onerously than if they were resident within the state.) However, it does not prohibit states from imposing residential requirements where these are required by the State's autonomy and its responsibility to its people; a state may, for example, permit only residents to vote in state elections.

It has also been found that there is at least one implied right. In 2007, in Roach v Electoral Commissioner, the High Court held that Constitution sections 7 and 24, by providing that members of the House of Representatives and the Senate be "directly chosen by the people", created a limited right to vote. This entailed the guarantee of a universal franchise in principle, and limited the Federal Parliament's legislative power to modify that universal franchise. In the case, a legislative amendment to disqualify from voting all prisoners (as opposed to only those serving sentences of three years or more, as it was before the amendment) was struck down as contravening that right.

There are also some guaranteed freedoms, reasons why legislation that might otherwise be within power may nonetheless be invalid. These are not rights of individuals, but limitations upon legislative power. However, where legislation that would adversely affect an individual is found to be invalid for such a reason, the effect for the individual is similar to vindicating a right of that individual. As with rights, such freedoms may be express or implied:

• Express: freedom of religion – Section 116 creates a freedom of religion, by prohibiting the Commonwealth (but not the states) from making "any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion". This section is based on the First Amendment to the U.S. Constitution, but is weaker in operation. As the states retain all powers they had as colonies before federation, except for those explicitly given to the Commonwealth, this section does not affect the states' powers to legislate on religion. Section 116 has never been successfully invoked. A deterrent to invoking it is, as the High Court has found, the uncertain meaning of "religion".

• Implied: freedom of political communication – In 1992 and 1994, the High Court found that the Constitution contained an "implied freedom of political communication", in a series of cases including Australian Capital Television and Theophanous. These were majority decisions, but the existence of the freedom was unanimously confirmed in Lange v ABC. Rejecting wider suggestions in the earlier cases, Lange decided that the freedom can be found only in the "text and structure" of the Constitution and not by reference to any general legal or political principles, for example that of "democracy". In these terms, the freedom was found to be a necessary concomitant of the provision in Constitution sections 7 and 24 that the houses of the Commonwealth parliament shall be "chosen by the people"; the people must not be restricted from communicating with each other and with their representatives on all matters that may be relevant to that choice. The freedom was deemed to extend into the states and territories, on the basis that nationally there is a single sphere of political communication. The U.S. First Amendment refers to "speech", which may be oral or written but is limited as to protection of non-verbal expression (such as burning a draft card). The High Court has avoided that limitation by preferring the broader term "communication". Nonetheless, the freedom is not absolute: legislation that "burdens" the freedom of political communication will nevertheless be valid if it "proportionately" pursues some other legitimate purpose (such as public safety).

Attempts in High Court cases to find further implied rights or freedoms have not been successful. Implication of a freedom of association and a freedom of assembly, independently or linked to that of political communication, has received occasional judicial support but not from a majority in any case.