Implied rights in the Constitution

There are two different types of constitutionally protected rights: express rights and implied rights. Express rights are clearly and explicitly outlined in the text of the Constitution. Implied rights, however, are not clearly outlined in the Constitution but are suggested or inferred in its text. In a manner of speaking, implied rights are found by ‘reading between the lines’ of the Constitution. They are derived from a particular definition or interpretation of keywords or phrases. Implied rights are considered, identified and outlined by the High Court, in cases where the court is required to interpret the Constitution. While express rights are entrenched and can only be changed by altering the Constitution, implied rights are more flexible because they can be revisited, re-examined, changed or overruled by the High Court. Probably the most notable implied constitutional right in Australia is freedom of speech. Unlike fundamental laws like the United States Constitution, where freedom of speech and other rights are explicitly protected, the Australian Constitution contains no such express right.

The development of implied rights by the High Court has advantages and disadvantages. Some of the advantages of implied rights are:

The Constitution is a short, finite document and could never be able to expressly protect all important rights. The High Court can study and interpret the intentions and values of the Constitution and its creators, and determine what rights they might have accepted or rejected.
Implied rights provide the public with some constitutional protection from the excessive power of the executive government and the parliament. These branches of government cannot change the Constitution without a referendum, so they cannot legislate to override implied rights.
The development of implied rights and the High Court’s role in deciding and articulating them provides the Constitution with a degree of flexibility it would not ordinarily have. Implied rights allow the High Court to make rights-based rulings that are consistent with both the content of the Constitution and changing social values, circumstances and expectations.

Some of the disadvantages of implied rights include:

Implied rights can seem more complex and difficult to understand than express rights. Their meaning and effect must be understood from long and complex High Court rulings – and sometimes multiple rulings – rather than from the explicit text of the Constitution.
The High Court’s development and protection of implied rights can be considered undemocratic since the court is not elected. Many suggest that parliament, as the sovereign representative of the people and the supreme law-making body, should have the final say on rights.
Many commentators and experts have been critical of the High Court for constantly ‘finding’ implied rights in the Constitution. They describe this as ‘judicial activism’ because they believe that some High Court Justices are furthering an agenda or acting according to their personal political beliefs, rather than an objective interpretation of the Constitution.

Some notable High Court cases where implied rights have been a factor include:

Lange v. Australian Broadcasting Commission (1997). David Lange was a former New Zealand prime minister who sued the Australian Broadcasting Corporation (ABC) for defamation, after the ABC television programme Four Corners broadcast allegations of Lange’s political funding. The ABC, in an appeal to the High Court, claimed the Constitution contained an implied right to freedom of speech with regard to political commentary. The High Court accepted this but also ruled that this freedom was not unlimited, upholding that Lange had indeed been defamed by the ABC.

Nationwide News v. Wills (1992). In this case, a media outlet was prosecuted for publishing strong criticisms of the Australian Industrial Relations Commission (AIRC). This was an offence under the Industrial Relations Act of 1988. Nationwide News challenged this prosecution in the High Court, claiming there was an implied freedom of political communication and that the legislation was invalid. The full bench of the High Court agreed unanimously and overturned the prosecution.

Leeth v. Commonwealth (1992). Leeth was a prisoner who challenged the existence of different non-parole periods between the States. Leeth’s lawyers claimed the Constitution contained an implied right to legal equality for all Australians, regardless of their State. The High Court was split and ruled 4-3 against Leeth. The court found that while there should be equality with regard to rights and legal processes, sentencing is a residual power of the States and may therefore differ from one State to the other.