Express rights in the Constitution

The Commonwealth Constitution defines and protects rights in two different ways: through express rights and through implied rights. Express rights are sometimes called specific rights or entrenched rights. As the name suggests, express rights are clearly expressed or outlined in the text of the Constitution. They are clear, concrete and can only be removed by changing the wording of the Constitution. Implied rights, as their name suggests, are not clearly expressed in the words of the Constitution, however are nevertheless suggested or inferred by them. While express constitutional rights are apparent to everyone, implied rights are derived from the rulings and constitutional interpretation of the High Court.

There are five express rights contained in the Constitution:

Section 116. This section protects freedom of religion by preventing the Commonwealth from making laws establishing a religion, imposing any form of religious ceremony or worship and prohibiting the exercise of any religion. Section 116 also prohibits the use of any religious qualification for public office. This section was tested during the first years of World War II, when the Commonwealth government declared Jehovah’s Witnesses to be a subversive organisation, whose activities were endangering the conduct of the war. After police raided and occupied buildings owned by the Jehovah’s Witnesses an Adelaide branch of the church sought an order from the High Court preventing further raids and granting damages. They sought this order on two grounds: that the Commonwealth had breached Section 116 by victimising a religious group, and that the government had acted in excess of Section 51(vi). The High Court ruled that the Commonwealth’s legislation and conduct did not breach Section 116 but that it did exceed the defence powers granted in Section 51(vi).

Section 117. This section protects Australian citizens from being discriminated against by the laws of a State in which they do not live. For example, it may apply to States who legislate to exclude interstate residents from accessing its universities, schools, hospitals or other services. There have also been several High Court cases concerning motor vehicle accidents caused by vehicles from interstate, and subsequent claims for compensation and insurance. Traditionally the High Court has not been a strong defender of either Section 116 or 117, however in Street v Queensland Bar Association (1989) the court judged that the Queensland Bar Association’s admission rules for new barristers were invalid under S117, because they required the applicant to give up his or her residence in another state.

Section 80. This section guarantees the right to trial by jury for any Australian citizen accused of an indictable offence. This section is largely ineffective as an express right, for two reasons. First, it only applies to Commonwealth criminal offences – and since most criminal law is a residual power it rests with the States. Second, High Court rulings on Section 80 have granted parliament considerable leeway to decide which offences should be indictable – and therefore tried by a jury – and which should not.

Section 92. This section provides that all “trade, commerce and intercourse among the States shall be absolutely free” and that neither the Commonwealth or the States can make laws regulating interstate trade, introducing interstate tariffs or customs duties, or restricting travel or movement between the States. In 1988 a Tasmanian fishmonger, Whitfield, purchased an order the crayfish in South Australia – where they were of legal size under SA State laws. Whitfield imported them to Tasmania, where they were deemed to be undersized and were subsequently seized. He lodged a grievance with the High Court, claiming that his right to free trade between the States was being infringed by Tasmania’s fish trading laws. The High Court Justices referred to transcripts from the Constitutional Convention of 1897 to locate the true intent of Section 92. They ruled that it was intended to prevent restrictions on trade, and found that Whitfield’s trade had not been infringed by Tasmanian State laws, which were to protect and conserve fish stocks rather than restrict trade. Whitfield’s complaint was thereby dismissed.

Section 51 (xxxi). This section states that the Commonwealth can acquire property from any State or person only “on just terms”. Occasionally the Commonwealth government or its agencies may acquire land for a building project, road expansion, mining or other infrastructure. Where parties choose not to sell their land to the Commonwealth voluntarily, it may issue a compulsory acquisition order. This Section deems that the Commonwealth must only do this “on just terms”, usually by providing the landowner with a payment that is equal or greater to the value of the land.