Australia does not have a constitutional bill of rights – that is – a dedicated section of our constitution that outlines what social and political rights all Australians have by virtue of their citizenship, birth or location.
However, this does not mean that you don’t have any rights, or that there aren’t any rights in the Constitution of the Commonwealth of Australia.
NO AUTOMATIC GUARANTEE OF RIGHTS
Let’s start with the basics. The Constitution does not have a bill of rights that outline what human rights are guaranteed to Australians, that much we know.
The reasons why they are not in our constitution are too numerous to get into here. My personal opinion however is that unlike the Constitution of the United States, our Constitution was born to facilitate economic development between the colonies, not as a liberation from tyranny by an absent power. The story of our constitution is less: ‘no taxation without representation’ and more: ‘uniform taxation for a common market’.
Despite the absence of a bill of rights, we do have some rights in the Constitution, although these are limited and in some cases, these rights don’t exist in the black and white text of the document and have been implied.
Let’s deal with them in that order, first the specific rights.
THE SPECIFIC RIGHTS IN THE AUSTRALIAN CONSTITUTION
THE RIGHT TO VOTE IN COMMONWEALTH ELECTIONS
Australians have the right to vote in elections of the Commonwealth provided that they are eligible to vote in state elections.
“ No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.”
— Section 41
FREEDOM OF RELIGION
Australians have a right to be free from religion or belief and can have whatever religion or belief they wish, finally no religious test can be required to fulfil or be eligible to federal office.
“ 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.”
— Section 116
Australians have a right to be tried by a jury of their peers if they are being charged with an indictable offence. An indictable offence is one that is tried on an indictment, which means that the offence is serious, as opposed to a summary offence which is what minor offences are called in Australia. In the USA it’s the difference between a felony and a misdemeanour.
The Australian Constitution is silent as to what crimes are indictable and what crimes are summary, leaving Parliament to sort out the difference.
“ 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.”
— Section 80
FAIR COMPENSATION ON ‘JUST TERMS’ FOR COMPULSORY ACQUISITION OF PROPERTY.
If the Commonwealth compulsory acquires your property, whether it be your house or your trademarks then you are entitled to receive ‘just terms’ for that property.
“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;”
— Section 51(xxxi)
FREEDOM TO TRADE AND MOVE AMONG THE STATES.
Australians carrying out trade or commerce between states are guaranteed reasonable freedom of economic regulation. That is for example, you can’t introduce a tariff for products produced in Queensland and then sold in Victoria.
“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.
But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.”
— Section 92
FREEDOM TO NOT BE TREATED DIFFERENTLY BECAUSE OF WHAT STATE YOU ARE FROM.
The interpretation of this section is a little vague, but generally speaking if you are from one state then you can expect to be treated the same everywhere you go in the Commonwealth. A Victorian can’t be charged more for something in Western Australia simply because she is a Victorian.
“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.”
— Section 117
ACCESS TO THE HIGH COURT OF AUSTRALIA.
The Constitution creates the High Court of Australia (Chapter III), however is largely silent on what issues the High Court has original jurisdiction on, that is, what legal matters only the High Court can hear.
The Constitution does give the High Court original jurisdiction in some matters that the Parliament cannot limit. This includes writs of mandamus, prohibitions and injunctions sought against an officer of the Commonwealth.
“ In all matters:
(i) arising under any treaty;
(ii) affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
(iv) between States, or between residents of different States, or between a State and a resident of another State;
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.”
— Section 75
THE IMPLIED RIGHTS IN THE AUSTRALIAN CONSTITUTION
I dealt with the ‘explicit rights’ or the specific rights outlined in the Constitution, but they are not the only ones that exist.
The Constitution is not just a dead document set in stone, it is open to interpretation by the High Court of Australia (Parliament also fills in gaps where the Constitution is silent as you’ve noticed above).
Successive courts have found that the Constitution has rights that are implied, that is, the Constitution does not explicitly outline them but rather they are in there hiding somewhere in the text. Another way of looking at it is that the implied rights are necessary to enable the specific rights to be protected.
These rights are:
FREEDOM OF POLITICAL COMMUNICATION.
The High Court has found that because the Constitution mandates that members of the Commonwealth Parliament be directly elected (which includes Ministers as they have to be members of Parliament) therefore a freedom of public discussion about political and economic matters is essential for good government.
Nationwide News Pty Ltd v Wills
Australian Capital Television Pty Ltd v Commonwealth
THE RIGHT TO VOTE.
The Constitution does not really outline the different processes and requirements when it comes to how we manage the democratic process in Australia, this is left to Parliament to figure out. However, the Constitution requires that Parliament be ‘directly chosen by the people’, therefore there is a right that can be implied that Australians have a right to vote.
“The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.”
— Section 7
“The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.”
— Section 24
This right isn’t absolute though, it can be restricted or modified but generally, Australians do have a right to vote.
Roach v Electoral Commissioner
Rowe v Electoral Commissioner
You see Australia, our Constitution may not be as colourful as the French or the Constitution of the USA, but not all is lost, there are some protections within it, except in some cases you have to look very hard for them.