3Constitution and the Protection of rights The Constitution says very little about rights. It was assumed parliament and common law principles would protect our rights.However some rights were considered so important they were expressly stated in the Constitution. Freedom of religion, the right to trial by jury (for Commonwealth indictable offences), the right not to be discriminated against because of place of residence, freedom of interstate trade and the rights of citizens to be compensated justly if their property is acquired are the few express rights that are included in the Constitution.
4Freedom of Religion Freedom of religion is one of the few human rights expressly mentioned in the ConstitutionSection 116 of the Constitution deals with freedom of religion and is one of the few rights that is protected explicitly under the Constitution. Section 116 sets out four ways freedom of religion is to be protected:The Commonwealth cannot make a law to establish a national religion.The Commonwealth cannot make a law requiring religious observance. For example, the Commonwealth cannot force people to take an oath in the name of God that they are telling the truth in a court of law.The Commonwealth cannot make a law that stops people from freely practising their religion, although this is subject to restriction if it is seen to be against the public interest.The Commonwealth cannot impose a religious test as a prerequisite for public office.
5Trial by juryTrial by jury is the right of all people alleged to have committed a serious offence. It is considered to be an important right in any legal system because it gives the defendant the right to be tried by his or her own peers.Section 80 of the Constitution states: ‘The trial on indictment of any offence against any law of the Commonwealth shall be by jury’. The right to trial by jury interpreted literally is, therefore, limited to offences involving a breach of Commonwealth rather than state law.
6The right to trial by jury is not clear in the Constitution as it refers only to the ... trial on indictment of any offence against the law of the Commonwealth ... but does not make clear what the process of indictment must be, nor the types of Commonwealth offences that would be regarded as indictable offences rather than summary offences.While most trials by jury occur within the state criminal jurisdiction, trial by jury in these circumstances is not specifically protected by the Constitution. A combination of common law rights and state legislation determine the rights and procedures that apply in these circumstances.
7Compensation for acquired property It is an important right in any democratic society that a person has the right to own property, and this right is included in the Universal Declaration of Human Rights. Section 51(xxxi) of the Constitution gives the Commonwealth the right to acquire (or take) property from any state or person for any purpose for which it has the power to make laws on ‘just terms’. For example, the Commonwealth has the power to make laws in regard to air travel. Therefore, if the Commonwealth is building a new airport, it could ‘acquire’ people's property or state property, and compensation would have to be paid.
8Residential non-discrimination The Constitution does not expressly state the notion of equality nor does it outlaw all the varieties of unfair discrimination such as race or sex discrimination. Section 117 does, however, ban discrimination against people on the basis that they are residents from another state.Street v. The Bar Association of Queensland (1989)
9Interstate trade and commerce Section 92 of the Constitution states that trade and commerce between the states should be ‘absolutely free’.
10Implied rights –Are rights that are meant or intended but not explicitly stated. Interpreting the Constitution and considering the systems such as representative and responsible government, the High Court has indicated that are implied rights to free speech and communication on matters concerning politics and government.ACT TV v Cth (1992) 66 ALJR 695: The High Court decided that, because the Constitution requires democracy, it contains an implied right of political freedom of speech, and struck down legislation stopping the broadcast of political material 24 hours before an election.Theophanous vs Herald Sun & Weekly Times Ltd (1994). In this case the High Court decided that the Constitution protected those who commented on individuals engaged in political debates from being sued for defamation. The result of this case is that the implied right of political freedom of communication on political matters could be used as a defence in a defamation action.Refer to page 51 of study guide for detailed outlines of the stages of development of this implied right.