Constitutional Rights and Freedoms

Parliamentary sovereignty versus a bill of rights
Express rights
Implied restrictions on government power
Limitations on the States
Non-constitutional protection of rights and freedoms

The constitution of a federal democracy often has 3 basic functions:

It divides political power between different levels of government – generally between a national or federal government, and state or provincial governments.
It establishes the arms of government – usually a legislature, executive and judiciary.
It regulates the relationship between government and the people, ordinarily by prohibiting the legislature and the executive from taking action which infringes certain basic human rights.

The Australian Constitution says much about this first function and, in relation to the Commonwealth, the second, but it says relatively little about the third. Certainly, the Australian Constitution contains nothing comparable to the United States Bill of Rights.

There are a few express provisions in the Australian Constitution which protect the rights of individuals. There are also some fundamentally important restrictions on governmental power which are necessarily implied from the text and structure of the Constitution. Despite this, it remains true that the Commonwealth and the State authorities are subject to fewer constitutional limitations when exercising government power than many other modern democracies. Indeed, Australia is now one of the few democratic countries without some form of bill of rights at the national level. There is a continuing debate over this issue and whether Australia would benefit from a bill of rights in some form.

Parliamentary sovereignty versus a bill of rights

When the Constitution was being drafted in the 1890s, some consideration was given to including several broad guarantees of individual rights and freedoms. However, the delegates to the constitutional conventions decided against including these guarantees. This reflected their belief that the rights of individuals were best protected by a parliament, and not by the courts, and also the belief that these rights should not be extended fully to Australia’s Indigenous people, women and Asian migrants.

In contrast with those who drafted the United States Constitution, the Australian drafters did not have a deep suspicion of institutions of government. They did not believe that the individual must be constitutionally protected against the excesses of government. Essentially, the delegates accepted the British doctrine of parliamentary sovereignty under which a parliament may make just about any law it chooses. In particular, it may repeal or amend any law made by a previous parliament, subject to manner and form requirements (see [4.13]–[4.16]). Indeed, under the principle of parliamentary sovereignty, the only thing a parliament cannot do is pass a law which restricts the powers of future parliaments.

However, in Australia, the doctrine of parliamentary sovereignty had to take account of the fact that the Australian Constitution, in certain important ways, limits the powers of the Commonwealth and State parliaments. Most significantly, the power of the Commonwealth Parliament, and that of each State, is limited by the federal division of power, and the combined law-making power of the Commonwealth and State parliaments is limited by specific constitutional provisions and, in relation to the States, by any limitations imposed by the relevant State constitution. Accordingly, as Sir Owen Dixon said in 1935, after federation the concept of the supremacy of the legislature gave place to that of the supremacy of the law – that is, the Constitution.

However, subject to this, it was accepted that the Commonwealth and State parliaments should possess unqualified power within the spheres of law-making authority given to them. Australia’s constitutional system was based on the traditional British view that an individual’s rights were more appropriately protected by democratically elected parliaments than by courts interpreting written constitutional guarantees.

Express rights

In keeping with the drafters’ views on constitutional guarantees, only a handful of express guarantees were included in the Constitution. These are found in sections 41, 51(xxxi), 80, 92, 116 and 117. Traditionally, the High Court tended to interpret these provisions narrowly. However, in recent years, several members of the Court have adopted a broader interpretation to give effect to what they consider to be the underlying purpose of the provisions.

Right to vote at Commonwealth elections if there is a right at State elections – section 41

Section 41 states in summary that no-one who has a right to vote at elections in a State shall be prevented from voting at elections for the Commonwealth. Reading section 41, one might think that a person who is entitled to vote at an election for, say, the New South Wales Legislative Assembly has a constitutional right to vote at Commonwealth elections. However, in Sipka (1983) a majority of the High Court decided that section 41 was merely a transitional provision that applied only to people who had the right to vote before 12 June 1902, when the Commonwealth prescribed the franchise for Commonwealth elections. None of those people would now be alive, and section 41 is therefore of no significance today. However, the High Court has found a significant implied right to vote, which we discuss at [9.50]. Other issues to do with voting are discussed in chapter 6.

Just terms for the acquisition of property – section 51(xxxi)

Section 51(xxxi) in effect requires the Commonwealth to pay reasonable compensation for any property it acquires. For example, if the Commonwealth wants to build a government office block on private land, it must pay for the land. Like most of the express constitutional guarantees in the Constitution, this guarantee applies only to the Commonwealth and not to the States. There is no provision in either the Australian Constitution or in any of the State constitutions requiring the States to pay compensation for any property that a State acquires under State law. For this reason, when each State passed legislation in 1996 to require gun owners to surrender certain types of guns to government authorities, there was no constitutional requirement for compensation to be paid to the gun owners. Nevertheless, the legislation did provide for the payment of compensation, as State legislation usually does.

The High Court has interpreted the term 'property' broadly to include any type of property. However, in contrast to the fifth amendment in the United States Constitution, on which section 51(xxxi) was modelled, for there to Constitution, there must be something more than a 'taking'. In other words, the mere 'extinguishment' or 'destruction' of a right or interest does not amount to an 'acquisition' of that right or interest; it is necessary also for the Commonwealth or some other person to receive a 'benefit' of a proprietary nature.

For example, in JT International SA v Commonwealth (2012), the High Court held that the prohibition on displaying a tobacco firm’s trademark and designs on tobacco packaging imposed by the Tobacco Plain Packaging Act 2011 did not amount to an acquisition of property on unjust terms. While the Court accepted that these rights were property, the majority concluded that the prohibition did not give rise to any acquisition by the Commonwealth or any third party of any interest of a proprietary nature. Instead the prohibition served the purpose of improving public health.

It is generally accepted that there are some acquisitions of property to which section 51(xxxi) cannot logically apply – for example, taxation; penalties imposed for unlawful conduct, including forfeiture of property; and property settlements in matrimonial disputes.

Trial by jury – section 80

Section 80 provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. Section 80 does not apply to offences under State law. Criminal charges can either be dealt with summarily (generally with a less formal procedure in a magistrates court) or on indictment (generally with a more formal charge heard in a higher court). Various technical and procedural consequences flow from whether an offence is indictable. At the time of federation, charges for serious offences were brought by indictment. Therefore, it would be reasonable to assume that the purpose of section 80 was to ensure that a person charged with a serious Commonwealth offence would have the constitutional right to be tried by a jury.

Read literally, however, section 80 only requires a jury trial if there is an indictment. In other words, it is possible to argue that section 80 does not apply if the Commonwealth Parliament prescribes that an offence, even a serious offence, is to be tried summarily. A majority of the High Court has traditionally favoured this strict and literal interpretation. In Archdall (1928) the Court decided that a trial by jury was only constitutionally required if the offence was tried on indictment. In the view of Justice Higgins, 'if there be an indictment there must be a jury, but there is nothing to compel procedure by indictment'. On this view, Parliament could provide that some serious offences can be tried summarily, thereby avoiding the section 80 requirement for trial by jury.

The Court’s literal reading of section 80 has been criticised as mocking the obvious purpose of the provision. An alternative interpretation has been advanced which would construe the expression 'trial on indictment of any offence' as referring to the trial of all 'serious offences', regardless of the procedure actually adopted. This interpretation was strongly advocated by Justice Deane in Kingswell (1985). He said that section 80 'was not the mere expression of some casual preference for one form of criminal trial'. Rather, section 80 'reflected a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases'. However, a majority in Kingswell felt that, as the Court had consistently refused to reconsider the correctness of Archdall (1928), the matter should be regarded as settled. Therefore, they confirmed the strict and literal interpretation established in Archdall. However, where section 80 does apply, it can impose significant requirements, such as a unanimous verdict, on the basis that this is an essential element of trial by jury. Indeed, in Alqudsi (2016), the High Court held that, even if an accused person agrees to a trial before a judge alone, this cannot override the requirement in section 80 for a trial by jury.

It should be noted, however, that Parliament usually provides in legislation that serious offences must be tried on indictment, so for practical purposes the guarantee provided by section 80 is still important.

Freedom of interstate trade, commerce and intercourse – section 92

Section 92 requires 'trade, commerce and intercourse among the States' to be 'absolutely free'. Section 92 was and remains a critically important provision in ensuring that Australia functions as one country, and it applies to both the Commonwealth and the States. Section 92 deals with 3 matters – trade, commerce and intercourse. It was established that, when interpreting section 92, a distinction must be drawn between interstate trade and commerce on the one hand and interstate intercourse on the other (but see [9.20]).

For a considerable time the High Court interpreted section 92 as a guarantee of an individual’s right to engage in interstate trade and commerce. Cole v Whitfield (1988) was a case involving a challenge to the validity of a Tasmanian fisheries law prohibiting a person from taking, buying, or selling crayfish under a minimum size in its application to crayfish imported from South Australia. In this context the High Court rejected the 'individual rights' theory of section 92. The Court decided instead that, to the extent that the provision relates to trade and commerce, it is intended to prohibit protectionism in interstate trade and commerce (see also [8.66]). Measures will be of a protectionist character if their purpose or effect is to protect local intrastate trade and commerce from interstate competition, unless the protectionist effect of the measure can be justified as an appropriate and adapted means of achieving a non-protectionist purpose. The Court held that the Tasmanian legislation did not seek to protect local trade over interstate trade and was therefore not in breach of section 92.

Section 92 by referring to interstate 'intercourse' guarantees an individual’s right of movement and communication between the States from any unjustifiable interference by the Commonwealth or the States. It follows that a person has a constitutional right to travel from, say, Queensland to New South Wales and that this right may only be curtailed for a good reason – for example, as a bail condition to stop a person who has been charged with a serious criminal offence from leaving a State before their trial. In APLA v Legal Services Commissioner (NSW) (2005), the High Court confirmed that a law that has the purpose of impeding interstate intercourse will ordinarily infringe section 92, unless there is some competing reason justifying the impediment. Where a law has another purpose and restricts interstate intercourse only incidentally, the test to be applied is whether the impediment to intercourse imposed is greater than is reasonably required to achieve that purpose. In that case, the law was not protectionist; further, it only impeded interstate intercourse to the extent reasonably necessary to achieve the object of the law – which was to restrict the advertising of legal services.

It had been thought, based on what the High Court had said in Cole v Whitfield, that interstate intercourse enjoyed a broader protection from legislative control than interstate trade and commerce, at least where the restriction imposed by the law applied to restrict directly such intercourse e.g. a general prohibition on persons travelling from one State to another. In Palmer v WA (2021) the High Court decided that no distinction should be drawn between interstate trade and commerce on the one hand and interstate intercourse on the other. The test for both limbs is now whether the burden imposed by the law on those activities is no more than is reasonably necessary to achieve a permissible purpose. The Court held in Palmer that the Western Australian law served the permissible purpose of protecting public health from a serious and highly contagious disease COVID-19, and that the restrictive measures authorised by the law did not go beyond what was reasonably necessary to achieve that purpose.

Religious freedom – section 116

Section 116 provides that the Commonwealth shall not make any law for establishing any religion, for imposing any religious observance, or for prohibiting the free exercise of any religion. Section 116 also prohibits requiring a religious test as a qualification for any office or public trust under the Commonwealth. Like section 51(xxxi) and section 80, section 116 only limits the power of the Commonwealth and not that of the States. As Chief Justice Latham put it in the Jehovah’s Witnesses case (1943), section 116 is concerned with both the toleration of all religions and the toleration of absence of religion.

The first amendment to the United States Constitution prevents Congress making any 'law respecting an establishment of religion'. The United States Supreme Court has interpreted this provision as prohibiting laws which 'aid one religion, aid all religions, or prefer one religion over another' (Everson v Board of Education (1947)).

The High Court took a different view in relation to section 116 in the DOGS case (1981), rejecting arguments that financial assistance by the Commonwealth to schools operated by religious organisations was unconstitutional. Unlike the first amendment, section 116 only applies to laws 'for establishing any religion'. The section refers to 'any religion' rather than religion generally. On the basis of these textual points, and after examining the intentions of the founders, a majority of the Court concluded that the establishment clause in section 116 was directed at the establishment of a State church (such as the Church of England in England) or preference to one religion over another and not at recognition of or assistance to religious organisations generally.

Section 116’s guarantee of the 'free exercise' of religion has not been given an expansive application by the High Court. For example, the Court has taken the view that section 116 does not allow a person’s religious beliefs to exempt that person from compliance with a law that applies generally. Accordingly, a person whose religious beliefs were opposed to military service was not exempt from the obligation imposed on all males to perform military service (Krygger v Williams (1912)).

Most recently the 'religious test' limb of section 116 was in issue in Williams (No 1) (2012), the first case challenging the Commonwealth’s funding of chaplaincy services at schools. In that case, Mr Williams argued that the support of chaplaincy services breached section 116 because a religious test was required for the occupation of a position funded by the Commonwealth. The High Court rejected this argument because the chaplains did not hold an 'office under the Commonwealth'; rather, they were engaged by schools. The fact that the position was paid for by the Commonwealth was not enough to engage the 'religious test' limb of section 116.

Prohibition on disability or discrimination against out-of-State residents – section 117

Section 117 states in effect that a person resident in one State shall not be subject in any other State to any disability or discrimination which would not be equally applicable to them if they were resident in that other State. Section 117 limits the power of State parliaments and governments. It is not entirely clear whether section 117 also limits the power of the Commonwealth, but it seems likely that the High Court would hold that it does.

Section 117 was modelled on article 4, section 2, of the United States Constitution, which provides that the 'citizens of each State shall be entitled to all privileges and immunities of citizens in the several States'. The 14th amendment to the United States Constitution was also a relevant precedent. It provides, among other things, that no State shall 'deny to any person within its jurisdiction the equal protection of the laws'.

Early drafts of the Australian Constitution followed the United States models closely. However, various delegates to the constitutional conventions expressed concern over the use of the word 'citizens' and over the effect that the section so worded would have on the States’ ability to pass laws targeted at Indigenous Australians and Chinese and other racial groups. Therefore, section 117 was recast to prohibit discrimination and disability on the basis of residence rather than as an entitlement to equality.

The application of section 117 is demonstrated by Street v Queensland Bar Association (1989). In that case, the High Court struck down rules of the Queensland Supreme Court which required a lawyer from another State applying for admission in Queensland to be resident in Queensland and to undertake to practise principally in Queensland. It was obviously easier for a resident of Queensland to comply with these conditions. Therefore, the Court held that the rules discriminated against non-residents contrary to section 117.

Not all discrimination by a State against non-residents is prohibited by section 117. If there is a rational and relevant basis for the discrimination then the law may well be valid despite section 117. It is generally accepted, for example, that a State can limit the right to vote at State elections to residents of that State. However, once a law proceeds beyond these more obvious examples, it can be difficult to identify the types of discrimination which are permitted. For example, it is not clear whether, in filling university places, a State authority can give preferential treatment to students who attended high school in that State.

Implied restrictions on government power

The most important restrictions on government power are not spelled out expressly in the Constitution. Rather, these restrictions are based on implications drawn from the text and structure of the Constitution.

The rule of law

The Constitution is based on, and is a fundamental expression of, the rule of law. The expression 'the rule of law' means different things to different people. At its heart, though, is the notion that individuals should not be subject to any arbitrary or capricious exercise of power by government officials, who are subject to, and not above, the law.

Restraint of executive power

The principal application of the rule of law to Australia’s constitutional system is to restrain executive power – for example, the power of the police to search and arrest or the power of a government agency to impose a tax. The independence of the judiciary is also often cited as a necessary feature of the rule of law and is an important means of ensuring the right to a fair trial. Judicial independence at the federal level is entrenched by Chapter III of the Constitution. This is discussed separately at [8.32]–[8.34] in relation to federal courts and at [8.35]–[8.41] in relation to State courts. This independent judiciary can consider the legality of executive action.

Generally speaking, the rule of law requires that a government official may only exercise coercive powers against an individual or property if that official has some statutory authority to do so. For example, when government secret service officers damaged property in a mock raid on a Melbourne hotel, the fact that they had been on official business did not exclude them from legal liability. In the absence of some Act or regulation which authorised them to knock down hotel doors, these secret service officers were liable for property damage in the same way as any other individual would have been liable (A v Hayden (1984)).

Similarly, government officials cannot act contrary to Acts and regulations unless an Act or regulation specifically allows them. This explains why the High Court held in Ridgeway (1995) that it was illegal for Commonwealth police to import heroin into Australia even though the importation was part of an operation to catch drug traffickers. The customs legislation prohibited the importation of heroin and did not exempt police officers from this prohibition. Therefore, the Commonwealth police had acted illegally in importing the drugs.

Conviction under law

Another fundamental aspect of the rule of law is that a person is only guilty of a crime if he or she contravenes some statutory or common law offence – that is, an offence developed and recognised by the courts of law. This is clearly illustrated by the war crimes legislation which was enacted by the Commonwealth Parliament in 1988 and considered by the High Court in Polyukhovich (1991). The legislation was passed in response to concerns that several individuals living in Australia had taken part in atrocities in parts of Europe during World War II. However, at that time there was no law in Australia which made it an offence for a person to commit war crimes in Europe. Therefore, the Commonwealth Parliament had to pass retrospective legislation making it an offence for people to engage in war crimes in Europe during World War II. The important point is that it was not, in itself, enough that a person may have committed an atrocity, such as mass murder. There needed to be a law prohibiting those acts which applied to the time and place of the offence before the person could be prosecuted and convicted.

Retrospective laws

A retrospective criminal statute like the war crimes legislation makes conduct illegal which was not illegal at the time the conduct occurred. Retrospective legislation, particularly legislation which retrospectively makes conduct illegal, is unusual. This is because it is generally regarded as unfair for people to be subject to criminal penalty for doing something which was not illegal at the time it was done. Indeed, it is sometimes suggested that legislation which retrospectively creates criminal offences is inconsistent with a broader concept of the rule of law. Despite this, the High Court has upheld the validity of retrospective general criminal laws, such as the war crimes legislation considered in Polyukhovich (1991) (see [9.36]), although the precise limits of the power to make such laws has not been conclusively resolved.

Freedom of political communication

Since the early 1990s, the High Court has been prepared to identify a number of important implied rights and freedoms from the text and structure of the Constitution. One of the most significant of these has been the implied freedom of political communication, first identified by the High Court in 2 decisions delivered in 1992, Nationwide News and the Political Broadcasts case, and confirmed in 1997 in Lange.

Nationwide News

In Nationwide News (1992), the Commonwealth Parliament had enacted a provision which, in effect, made it an offence to criticise the Australian Industrial Relations Commission or a member of that Commission. The difficulty was that the provision even outlawed criticism which was justifiable, fair and reasonable. All 7 justices of the High Court thought that the law was invalid. Four justices (Justices Brennan, Deane, Toohey and Gaudron) struck the provision down on the ground that it was inconsistent with an implied constitutional requirement that Australians be free to engage in political discussion.

The Court noted that the Constitution entrenches a system of representative democracy for the Commonwealth. This is clear from provisions such as section 7 and section 24, which require members of the Commonwealth Parliament to be 'directly chosen by the people'; and section 13 and section 28, which require regular elections for the Senate and the House of Representatives. The Court also noted that, in Australia, ultimate political power is vested in the people of Australia. Specifically, it is they who elect Commonwealth parliamentarians, and it is they who ultimately determine whether the Constitution should be amended under section 128. Under section 64, the executive government – in particular, its ministers – are members of the Parliament and are responsible and accountable to it. Given these factors, the Court considered that it is implicit in the Constitution that the Commonwealth Parliament cannot pass laws which are inconsistent with the form of representative democracy entrenched by the Constitution. The right of a citizen to communicate with his or her elected representatives and his or her fellow citizens on political matters was considered to be an essential feature of the representative democracy established by the Constitution. It follows that any unreasonable or unjustifiable restraint on this right is inconsistent with the system of representative democracy established by the Constitution and, as such, is unconstitutional.

That the restraint must be unreasonable or unjustifiable recognises that the freedom of political discussion is not, in the words of Justices Deane and Toohey, 'an absolute and uncontrolled licence to say and write anything at all'. This means that a balance must be struck between the freedom to communicate on political matters and other legitimate interests, such as the protection of a person’s reputation from maliciously false statements. In Nationwide News, it was clear that the legislation did not strike an appropriate balance because it purported to impose a total ban on any criticism whatsoever of the Commission and its members.

Political Broadcasts case

In the Political Broadcasts case (1992), a majority of the High Court struck down a Commonwealth law which restricted the broadcasting of paid political advertisements. The majority felt that the proposed restrictions were an unreasonable restraint on the right to engage in political discussion. In dissent, Justice Brennan said that it was open to the Commonwealth Parliament to conclude that 'representative government can survive and flourish without paid political advertising'. The dissenting judgments of Justices Brennan and Dawson show that there is room for disagreement over what is and is not inconsistent with the system of government entrenched by the Constitution.

Lange

In Lange (1997), the High Court considered the effect of the implied freedom of political communication on the law of defamation, which allows a person whose reputation has been diminished by a publication to sue for damages. Unusually, the Court delivered a unanimous judgment. The Court rejected the view that a law would be invalid if it were inconsistent with some freestanding, abstract concept of representative democracy. Rather, a law would only be invalid if it were inconsistent with the particular form of representative democracy established by the text and structure of the Constitution. However, the judgment affirmed that the Constitution protects freedom of communication between people concerning political or government matters because this was a necessary implication to draw from provisions such as section 7 and section 24 of the Constitution (which require Commonwealth parliamentarians to be directly chosen by the people) and section 64 (which provides for the executive government to be responsible to the Parliament). The Court therefore held that the law of defamation was subject to the implied freedom, and a communication made to the public on a political matter was not defamatory if publication was reasonable in the circumstances.

McCloy

More recently, in McCloy (2015), the High Court held that New South Wales legislation which imposed a cap on political donations, and prohibited property developers from making such donations, was not invalid because it breached the implied freedom of political communication. The legislation under consideration was said to be for the purpose of preventing 'corruption and undue influence in the government of the State' and was also 'directed to overcoming perceptions of corruption and undue influence, which may undermine public confidence in government and in the electoral system itself'. The Court held that, although the legislation burdened political communication, the burden was justified.

Brown

In contrast, in Brown (2017), the High Court held that provisions of Tasmanian legislation which limited protest activity in the vicinity of business premises, including forestry operations, were invalid because they impermissibly burdened the implied freedom of political communication. Although the Court considered that Parliament could legitimately protect the property and activities of a business from harm, a majority of the Court held that the legislation went further than could be justified – in particular, by providing for powers of arrest and removal of protesters. Relevant to this conclusion was the fact that the legislation targeted protesters specifically and other legislation of general application already existed which allowed for the protection of forestry operations, including by limiting public access.

Judicial power

The Australian Constitution guarantees the independence of the federal judiciary. It does so by providing in section 71 that the judicial power of the Commonwealth is to be exercised by the courts specified in that provision and, by implication, not by the Parliament or any executive body. Chapter III also safeguards the independence of the federal judiciary by providing in section 72 that a federal judge may only be removed from office before the prescribed retiring age if both houses of the Commonwealth Parliament resolve that he or she has misbehaved or is physically or mentally incapable. Section 72 safeguards judicial independence further by providing that a judge’s salary cannot be reduced during the judge’s term in office.

Chapter III of the Constitution, by vesting judicial power in courts and guaranteeing the independence of the judiciary at the Commonwealth level, entrenches a number of fundamental individual freedoms. Importantly, it ensures that a person can only be convicted of an offence under Commonwealth law by an independent court. The High Court has also held by parity of reasoning that Chapter III prevents a minister revoking the citizenship of an Australian citizen (Alexander (2022), see [3.66]). Chapter III also prevents the Commonwealth Parliament from passing a law which says that a specified person or group of persons is guilty of a criminal offence – that is, people can only be convicted of a criminal offence because of what they have done and not because of who they are.

These principles have had particular relevance in relation to the detention of persons. Generally a person can only be detained by a court order after they have been convicted of a crime. But a majority of the High Court has upheld some exceptions – in particular, indefinite immigration detention for the purposes of visa processing and removal without any court order or any conviction for a crime (Al-Kateb (2004)). Also in Thomas v Mowbray (2007), the High Court held that a court could make a control order against a person – for example, an order that requires them to remain at their residence at particular times, report to police regularly and not communicate with particular people – not because of what they had done and been convicted of but to prevent them from possibly committing certain terrorist offences.

More recently, the High Court upheld Commonwealth legislation that allowed a court to order the continuing detention of a person after the prison term imposed on that person for a terrorist offence had ended. The Court decided that these 'continuing detention orders' were permissible because they could be made only where a court was satisfied that the risk of the person committing a further serious offence was 'unacceptable', and only where no less restrictive measure than continuing detention would be effective to prevent that risk (Benbrika (2021)).

Right to vote

Section 7 and section 24 of the Constitution provide that the Senate and House of Representatives shall be 'directly chosen by the people'. In Roach (2007) and Rowe (2010), the High Court held invalid amendments to the Commonwealth Electoral Act 1918 on the basis of these provisions. The amendments in Roach had the effect of disqualifying as voters all persons who were serving sentences of imprisonment, whatever the duration, where previously only persons serving sentences of 3 years or more were disqualified. And in Rowe the amendments brought forward the closure of the electoral roll to new enrolments. Instead of the roll closing 7 days after the start of the election period, the roll was to close at the start of the election period. The Court held that restrictions on the 'right to vote' had to be for a legitimate end and proportionate to achieving that legitimate end. In Roach, the legitimate end was to give effect to the principle that serious criminal behaviour warrants the loss of a political right. However, the disqualification of all persons serving sentences of imprisonment, whatever the duration, was found not to be a reasonable way to implement this principle. In Rowe, the legitimate end was protecting the integrity of the electoral roll so as to prevent electoral fraud, but the amendments had the practical effect of preventing some 100,000 people from enrolling. Chief Justice French stated:

In my opinion, the heavy price imposed by the Amendment Act in terms of its immediate practical impact upon the fulfilment of the constitutional mandate was disproportionate to the benefits of a smoother and more efficient electoral system to which the amendments were directed.

Limitations on the States

Australian Constitution

Of the express guarantees contained in the Constitution, only section 92 (guarantee of interstate trade, commerce and intercourse) and section 117 (prohibition on discrimination and disability on the basis of residence) limit the power of State parliaments and governments. Further, the implied constitutional limitations which the Court has identified have primarily restricted Commonwealth power, although with a growing relevance to State power.

For example, Chapter III of the Constitution primarily entrenches the independence of the federal courts only and not that of State courts. However, some constitutional protection is conferred on State courts. This protection stems from the fact that under section 77 of the Constitution the Commonwealth Parliament may confer federal jurisdiction on State courts, as we discussed in chapter 8 (see especially [8.22]). As a result, in Kable (1996), the High Court held that there is an implication that there must be State courts capable of exercising federal jurisdiction. Therefore, a State parliament could not abolish the State supreme court and replace it with a body controlled by the State executive government. Additionally, a State parliament could not confer a function on a State court which is so incompatible with the judicial process that it compromises the capacity of a State court to exercise federal jurisdiction (see [8.39]–[8.41]).

The Court has held that the implied constitutional freedom of political communication restricts the legislative power of both the Commonwealth and the States. However, the principal basis for this finding was not that the Constitution entrenches representative democracy at the State level. Rather, the Court recognised that any political issue ordinarily has implications for more than one level of government. Therefore, a State law which prohibited political discussion would necessarily restrict a person’s right to discuss political issues of federal significance, thereby compromising the proper workings of representative democracy at the Commonwealth level.

State constitutions

Generally, State constitutions do little to protect the rights and freedoms of a State resident from possible action by the State parliament or government. Further, State constitutions are, for the most part, flexible documents which – in contrast to the Australian Constitution – can generally be amended by an Act of a State parliament (see [4.2]). However, there are some exceptions to both these statements. For example, the New South Wales Constitution 'entrenches' (in the sense that it can only be overridden by a referendum of the people) the independence of the State judiciary by providing that New South Wales judges can be removed only on the grounds of 'proved misbehaviour or incapacity' and only following a request from both houses of the New South Wales Parliament. The Western Australian Constitution entrenches many of the elements of representative democracy found in the Australian Constitution, such as the requirement that members of the Western Australian Parliament are to be elected 'directly by the people'.

Commonwealth laws

Section 109 of the Constitution provides that any legislation passed by a State parliament shall be invalid to the extent that it is inconsistent with a valid Commonwealth law (see [4.53]–[4.55]). The Commonwealth Parliament has passed legislation which safeguards certain rights and freedoms – for example, the Racial Discrimination Act 1975 prohibits discrimination on the grounds of race. This legislation, when read with section 109, in effect prevents the States from passing legislation which discriminates on the basis of race.

In Mabo (No 1) (1988) the High Court held that a Queensland Act which sought to extinguish, without compensation, native title rights (on the assumption that these existed) was inconsistent with the Racial Discrimination Act 1975 and therefore invalid by operation of section 109. A majority of the Court decided that the Act discriminated on the basis of race in relation to the human rights to own property and not to be arbitrarily deprived of property, in that the native title rights sought to be extinguished were only held by Indigenous people.

Non-constitutional protection of rights and freedoms

This consideration of constitutional protection of individual rights raises one obvious question. If Australians have relatively few constitutional guarantees of basic rights, why is Australia generally regarded as a free and democratic society in which human rights are respected by governments? There are number of related reasons for this outcome.

Protection by parliaments

The first factor is that – generally speaking – the founders’ faith in a democratically elected parliament as an institution which will not readily compromise human rights has been largely justified. With a few exceptions, Australian parliaments have not passed legislation which unjustifiably contravenes individual rights and freedoms. (A significant exception for much of the 20th century was certain legislation dealing with Indigenous Australians (see chapter 10).)

Also, in the past 50 years, Commonwealth and State parliaments have increasingly passed legislation which promotes and safeguards individual rights. An important purpose of this legislation is to implement domestically the international human rights treaties to which Australia is a party. For example, the Commonwealth Parliament has used its power in relation to external affairs (section 51(xxix)) to enact laws which prohibit discrimination against persons on various grounds such as race, sex, marital status, sexual orientation, gender identity, disability and age. The States have passed similar legislation.

Parliaments have also enacted legislation which allows individuals to challenge and complain about government decisions on the basis that they are in breach of human rights. As one of the range of mechanisms for checking executive action, which we noted at [7.39]–[7.43], the Commonwealth has established the Australian Human Rights Commission. The Commission has a number of functions in relation to human rights, including hearing complaints of breaches of human rights. State bodies also exist and have similar functions. Further, in some circumstances it is possible for Australians to complain to various United Nations human rights bodies (see [3.54]).

Nothing said detracts from the view that laws have sometimes been enacted which limit certain rights and freedoms. These laws have attracted comment and criticism on the ground that there was an insufficient basis for enacting them. The legislation prohibiting the Australian Communist Party (see [8.2]) and nationalising the banks (see Bank Nationalisation case (1948)) are examples from the 1940s and 1950s. More recent examples concern legislation authorising the detention and removal of aliens and various measures designed to prevent or reduce the likelihood of terrorist attacks (see [9.48]–[9.49]). The balancing of human rights and freedoms against countervailing policy considerations is a basic feature of the legislative development and parliamentary process.

Human Rights (Parliamentary Scrutiny) Act

As part of this process, the Commonwealth has provided a mechanism to improve parliamentary scrutiny of new laws for consistency with Australia’s international human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development. The mechanism covers both civil and political rights, and economic, social and cultural rights. The Human Rights (Parliamentary Scrutiny) Act 2011 adopts a 'dialogue' model of human rights protection – encouraging discussions between the executive, the Parliament and the public about human rights protection and appropriate limitations on human rights – rather than a bill of rights model, under which courts can invalidate legislation that breaches protected rights. It provides for the establishment of a Parliamentary Joint Committee on Human Rights, the primary role of which is to examine Bills and legislative instruments coming before the Parliament for compatibility with human rights and to report to the Parliament on this issue. Further, as a basis for this examination the Act requires all new Bills and many legislative instruments presented to the Parliament to be accompanied by a statement that assesses the legislation’s compatibility with human rights.

State and Territory Human Rights Acts

The Australian Capital Territory, Victoria and Queensland have passed legislation which provides further measures in relation to human rights (although these measures are limited to some civil and political rights). The Acts include an interpretative provision that requires courts and others, so far as possible consistently with the purpose of a law, to interpret legislation consistently with the human rights set out in the Acts, and an obligation imposed on public authorities to act consistently with, and in making a decision to give proper consideration to, human rights. Conduct contrary to this obligation is unlawful. There are no such laws at the Commonwealth level.

Interpretation principles

The common law for interpreting legislation, including Commonwealth legislation, contains similar rules which can provide further important safeguards for individuals. The presumption that legislation should not be interpreted so as to interfere with fundamental rights except where there are clear words to this effect is an important common law rule of statutory interpretation, known as the 'principle of legality'. Therefore, where a law is unclear and has several possible meanings, it will be interpreted in the way that minimises its impact on basic rights and freedoms. Further, there is also a rule that a statute that gives effect to a treaty, and perhaps legislation more generally, is to be interpreted, so far as it can be, in a way that conforms with established rules of international law, and these rules include human rights treaties.

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