1. The Constitution and Protection of Rights
Unit 3 AOS 2 Outcome 2

2. Key Knowledge

3. How are our constitutional rights enforced?
The Constitution protects rights via:
Structural Protections
Structural protection of rights refers to the systems, structures and mechanisms found in the Constitution that operate to indirectly protect human rights by preventing the misuse or abuse of power. These include the separation of powers which ensures no abuse of power, representative government which insures government represents the people, and responsible government, requiring the executive to be responsible to the parliament and the people.
Express Rights
Rights explicitly stated or entrenched in our Constitution so therefore any change must go through referendum : The acquisition of property on just terms (s. 51xxxi), trial by jury (s. 80), freedom of interstate trade and commerce (s.92), freedom of religion (s.116), freedom from interstate discrimination (s. 117).
One Implied Right
An implied right is a right not expressly stated, but inferred from a broad interpretation of the Constitution. Right to Freedom of Political Communication (Nationwide News Pty Ltd v. Wills and Australian Capital Television Pty Ltd (1992) and Roache V. Commission 2007)

4. Structural protection
Within the constitution, there are a number of sections that give protection of rights to Australians. While some are expressly stated (such s trial by jury, the acquisition of property of just terms, freedom of religion, freedom from interstate discrimination), other rights are protected indirectly by the structures set up by the Constitution These act to safe-guard against misuse of power by the Commonwealth Parliament These structural protections, such as representative government, responsible government, separation of powers and bicameral system that we have already looked at, operate as a form of structural protection of rights

5. Structural protection of rights
Structural protections are structures and mechanisms found within the constitution that indirectly protect our rights. The separation of powers divides the lawmaking powers of the country into three branches, legislative which makes the laws, executive which administers the laws and judicial which enforces and makes judgements on the law when cases arise. This protects human rights as it ensures each branch acts as a check on the other, disallowing abuse of power. Representative government, protected by sections 7 and 24 of the constitution, allow the members of parliament to be directly chosen by the people, indirectly protecting our democratic rights, and responsible government ensures the government is accountable and answerable to parliament and therefore the people, once again indirectly protecting our human and democratic rights.
Test your understanding:
1.) There are a number of rights protected in the Commonwealth Constitution due to its structure. Explain what is meant by “structural protection of rights” (2 marks)
2.) Describe the main structures that exist in the Constitution to protect rights (4 marks)
3.)Explain one example of how the separation of powers can protect Australians' democratic rights.

6. Application of Structural Protections
One way in which the separation of powers protects democratic rights is by separating the legislative function from the judicial function. This allows those that make the law to not have control over those than enforce the law, meaning citizens are given the opportunity of a fair an unbiased trial if accused of a crime.

8. Representative government
Another important structure that indirectly protects human rights is representative government.
This structure prevents governments from abusing power by making them answerable to the people at the time of election, and ensuring that members of parliament represent the views and needs of those who are voted in
Representative government is set up by several sections of the Constitution including:
Section 7 requiring that the Senate be “directly chosen by the people”
Section 24 which also states that the House of Representatives but be “directly chosen by the people”
Section 13 allows for senators to face election every six years
Section 28 provides for three-year terms in the House of Representatives

9. Responsible government
The Constitution requires that members of the executive arm of government be responsible to the parliament and therefore ultimately responsible for the electors
Section states that the governor general should generally act on advice of the ministers

10. Express rights
Some sections of the Constitution protect specific rights written in the Constitution by acting to limit the actions of the Commonwealth Parliament, which cannot pass legislation that infringes these protected constitutional rights. These rights are protected by the written word of the Constitution and are referred to as express or explicit rights They are also entrenched rights meaning that they can only be changed via referendum (section 128). The authors of the Constitution believed that the structures such as representative government, responsible government, separation of powers, bicameral system, would protect rights, and hence only 5 express rights are stipulated in the Constitution

11. Definition of express Rights
Those rights that are expressly stated or entrenched within the wording of the Constitution - they are entrenched within the Constitution and are explicit rights. Therefore, they can only be changed via referendum under section 128. Note: it is important to define this term using a word other than express. They are explicit or entrenched rights.

12. Our express/entrenched rights are:

13. Section 80 Trial by jury – limited right
Section 80 of the Constitution states that
“the trial on indictment of any offence against the law of the Commonwealth shall be by jury”.
This section applies only to Commonwealth offences, further, jury trials are mandated (not optional) only for indictable offences (serious criminal offences eg rape murder).
Hence, this section (section 80) provides only limited right to trial by jury as most crimes are under state residual law which are not bound by this section
Due to section 109, Commonwealth could also overcome this restriction by stating that a crime is a summary offence (less serious offence) where a jury is not required
The High Court has also stipulated that jury decisions in such cases need to be unanimous

14. Section 116 Freedom of religion
This freedom is clearly protected by section 116 in four ways:
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
No religious test shall be required as a qualification for any office or public trust under the Commonwealth
Section 116 ensures that the Commonwealth cannot use any of its law- making powers to giving one religion an advantage over another religion, or to force people to observe a particular religion
This has also been used to protect people from having no religion
Note that this is a Commonwealth restriction, and does not extend to the states

15. Section 92 Freedom from interstate trade and commerce
Section 92 upholds an economic right for freedom of interstate trade by stating that ‘trade, commerce and intercourse among the states…shall be absolutely free”. The High Court has interpreted this section in a number of cases It is thought that this applies to both Commonwealth and State parliaments, and for example tariffs or customs duties cannot be placed on interstate trade

16. CONSTITUTIONAL CASES INVOLVING INTERSTATE TRADE AND COMMERCE Cole v
CONSTITUTIONAL CASES INVOLVING INTERSTATE TRADE AND COMMERCE Cole v. Whitfield [1988] HCA 18; (1988) 165 CLR 360
Whitfield ran a seafood business in Tasmania, and as part of that business he bought crayfish from South Australia to be transported and sold in Tasmania. South Australia and Tasmania had different regulations relating to the minimum size at which a crayfish could be sold, with a smaller size allowable in South Australia. Whitfield was not permitted to sell the South Australian crayfish in Tasmania, as they were below that state's minimum size. Whitfield challenged the Tasmanian regulations, claiming they were in breach of s. 92. The High Court found against Whitfield, as they held that the Tasmanian regulations were designed as a conservation measure and not aimed at restricting free trade

17. Case example freedom of interstate trade and commerce
Betfair Pty Limited & M. E. Erceg v. State of Western Australia [2008] HCA 11; (2008) 234 CLR 418 Betfair established a betting exchange in Tasmania that allowed gamblers to place bets either on the internet or by phone on horse races throughout Australia. The Western Australian government brought in legislation to prevent gamblers from that state from betting through Betfair. The stated reason was that Betfair allowed its customers to bet on horses losing a race and the Western Australian government did not believe this was a desirable type of bet. Betfair and Mr Erceg, one of its Western Australian customers, challenged the Western Australian legislation in the High Court. The Court found that the legislation was invalid, as it contravened s. 92 of the Constitution.

18. Section 117 - Freedom from interstate discrimination
Section 117 gives protection to Australian citizens from being discriminated against on the basis of what state they live in This is thought to apply to both commonwealth and state parliaments An example of its application is where a resident of Victoria on a holiday in South Australia can not be subject to SA laws if it puts tem in worse a position than the equivalent law in Victoria.

19. The acquisition of property on just terms
Section 51 (xxxi) states that any acquisition of property by the Commonwealth from any state or person must be on “just terms”. The Commonwealth Parliament can therefore only acquire property for a purpose or area in which it has power to make laws, eg national parks and roads It must also provide compensation that is reasonable and fair in the circumstances Note that this section does not apply to acquisitions by states.
Test your understanding:
1.) The Commonwealth Constitution contains only a limited number of rights that are expressly protected for the people of Australia. What is an express or explicit right? (1 mark)
2.) Describe three rights of Australians that are expressly protected by the Commonwealth Constitution. In your response, analyse the scope of protection that each right offers the Australian people. (8 marks)

20. One right explicitly protected by the Australian Constitution is trial by jury in section 80. this requires citizens to have trial by ones peers should they commit an indictable Commonwealth offence. To some extent this right protects rights in Australia. This allows citizens to have their human rights protected by offering a trial by one’s peers should they commit a serious commonwealth offence, allowing for a fair and unbiased trial. However, this right is significantly limited as Criminal Law generally falls under residual state law, and this protects only from commonwealth infringements such as treason, or serious indictable offences such as rape or murder. Therefore, to some extent trial by jury protects Australians’ rights Another right entrenched and expressly protected is freedom of religion found in section 116. This right adequately prtoects human and economic rights as it ensures people are not discriminated against based upon their religion. It also protects citizens from having the commonwealth prohibit, create or impose a religion upon the country, which can be also used to protect those with no religion. However, this right does not extend to the states, creating inconsistency and confusion.

21. Quick write exam
Differentiate between express rights and structural protections 4 marks

22. Sample response
Structural protections are systems or mechanisms within the constitution that indirectly protect human rights. They are not entrenched, rather exist within the structure of the constitution, for example, responsible and representative government. Whereas express rights are those rights explicitly stated within the constitution and are entrenched, meaning that they can only be changed via section 128, through referendum. Examples of our entrenched rights are section 80 trial by jury (a limited right) and section 116, freedom of religion.

23. Implied Rights
An implied right is a right not expressly stated, but inferred from a broad interpretation of the Constitution In addition to entrenched express rights, the High Court has considered that some rights may be implied by the Constitution This means it is meant or intended but not actually said The suggestion that the Constitution can be interpreted to include rights that are implied, but not entrenched, is much debated In interpreting the text of the Constitution and considering the systems such as representative and responsible government that it embodies, the High Court has indicated that there are implied rights to freedom of speech and communication on matters concerning politics and government The High Court has found one implied right – freedom of political communication.

24. Interpretation of Constitutional rights
Under section 76 of the Constitution, the High Court is the only court that can interpret the Constitution
Interpretation: the High Court can only interpret the constitution when a case is brought before it, and the case requires the court to give meaning to the words or phrases in the Constitution in applying it to a case
If it is a right that is being interpreted, the effect an be to broaden or narrow the scope of the protected right – implied right of freedom of political communication was found through interpretation by High Court

25. CONSTITUTIONAL CASES ON THE FREEDOM OF POLITICAL COMMUNICATION

26. Australian Capital Television and Ors v
Australian Capital Television and Ors v. Commonwealth [1992] HCA 45; (1992)
In 1991, the Hawke government passed the Political Broadcasts and Political Disclosures Act 1991, which banned paid political advertising during state and federal election campaigns. The Act did not ban political discussion on news or current affairs programs, and provided for TV and radio stations to provide equal free time to political parties to convey their policies to the voters. The stated aim of the Act was to attempt to prevent a situation where only those with large amounts of money could afford to engage in political advertising. Australian Capital Television and a number of other television broadcasters argued that the Constitution contained a right freedom of political communication, and that this Act infringed that right. They also argued that to demand free time for political parties was an unjust acquisition of property under s. 51(xxxi). The Court held that an implied right to freedom of political communication existed because the Constitution contained an expectation of representative and responsible government, and this could not exist without the free interchange of political information. Those parts of the Act that restricted this freedom of political communication were declared invalid.

27. What to write ACT Case – Facts and Challenges
Facts: In 1991, Government passed an act that banned paid political broadcasting during election time and also required television and radio stations to give free air time for political party policies. Challenge/sections interpreted: ACT (Australian Capital Television) challenged act in High Court stating commonwealth was ultra vires, as the constitution had an implied right of freedom of political communication (through sections 7-24 and 61: Representative and Responsible Government) and also as infringed right to acquisition of property on just terms (section 51).

28. Outcome and significance of High Court Case
The High Court held that an implied right to freedom of political communication existed because the Constitution contained an expectation of representative and responsible government, and this could not exist without the free interchange of political information. Those parts of the Act that restricted this freedom of political communication were declared invalid. Significance: greatly extended protection of rights as found an implied right that was not explicitly stated but implied through the wording of Constitution

29. Nationwide News Pty Ltd v. Wills [1992] HCA 46; (1992)
Nationwide News published an article that was critical of the Australian Industrial Relations Commission (AIRC), describing it as corrupt. The Industrial Relations Act 1988 (Clth) made it an offence to bring the AIRC into disrepute. The High Court was asked to determine whether attempting to prevent the publication of articles such as that published by Nationwide News was a breach of the right of freedom of political communication. The Court found for the plaintiffs, and held that the use of the Industrial Relations Act to interfere with the right of freedom of political communication was unconstitutional.

30. Albert Langer v. Commonwealth of Australia [1996] HCA 43; (1996)
Prior to the 1993 federal election, Albert Langer had advocated that voters should vote in a particular way, so as to put candidates from both major parties last. The Australian Electoral Commission warned him not to continue with his campaign, as encouraging people to vote informally would contravene the Commonwealth Electoral Act 1918 (Cwlth). Langer took the issue to the High Court, declaring that his rights of freedom of political communication had been infringed. The Court held that a right to freedom of political communication is not absolute and could be restricted if it interferes with the democratic process, so Langer's case failed. The Electoral Commission then took out an injunction in the Victorian Supreme Court to prevent Langer from distributing his election material, but he ignored the injunction and was imprisoned for three weeks.

31. David Russell Lange v. Australian Broadcasting Corporation [1997]
David Lange was a former New Zealand Prime Minister, who believed that he had been defamed by the subject matter of an ABC Four corners program and sued the ABC for defamation. The ABC used a defence of the right of freedom of political communication and the High Court was required to rule on whether this defence was applicable in this case. The court found that the implied right of freedom of political communication does not confer rights of free speech on individuals, but is designed to prevent attempts by the executive or legislative arms of government to interfere with the right of voters to have access to information necessary to maintain representative and responsible government. The court accepted the ABC's defence of the right of political communication.

32. A SIGNIFICANT HIGH COURT CASE ON THE IMPLIED RIGHT TO VOTE — ROACH V
A SIGNIFICANT HIGH COURT CASE ON THE IMPLIED RIGHT TO VOTE — ROACH V. ELECTORAL COMMISSIONER [2007]

33. Only write underlined: Facts of the case
Vicki Lee Roach, was an Australian woman of Aboriginal descent convicted of five counts of offences (that included burglary, conduct endangering persons and negligently causing serious injury). She received a total effective sentence of six years imprisonment, with eligibility for parole in 2008.
Roach challenged the Electoral and Referendum Amendment Act 2006 (Cwlth) as it banned prisoners from voting in federal elections at all (before it had been only those serving sentence over 3 years)

34. Challenges:
Ms Roach challenged the constitutional validity of the amendments on four grounds. It was this fourth ground that the High Court based its decision :
any legislation for disqualification of electors must satisfy the representative government criteria,
the Commonwealth had no power to legislate against people convicted under state laws,
the implied freedom of political communication protects voting in federal elections,
the act limited the operation of the system of representative and responsible government mandated by the Constitution.

35. High Court Decision
The High Court held that the amendment that imposed a complete ban on voting rights for all prisoners was invalid and unconstitutional, as it was inconsistent with the principle of representative government.
They found that in sections 7 and 24 relating to representative government enshrines the constitutional right to vote as the senators and members of the House of Representatives must be directly chosen by the people.
This right is restricted (limited) for factors including prisoners serving terms over 3 years – whilst amendment ultra vires, Roach could still not vote.

36. Significance Test your understanding:
The decision of the court affirmed that there is a constitutional right to vote for adult members of the Australian community, which is protected by the structure of representative government found in section s 7 and 24 of the Constitution
The High Court did not go so far as to call the right to vote an implied right, instead this right is a reflection of structural protection – representative government
Thus representative government can act as a limit on the powers and of the Commonwealth Parliament, which cannot legislate away the right to vote without a valid reason.
Test your understanding:
1.) Explain what is meant by an implied right and contrast this with one express right. (2 marks)
2.) What is the implied right to freedom of political communication? Explain one case in which the High Court has considered the definition of this right. (4 marks)

37. Enforcement of constitutional rights
A case may come before the High Court that questions the validity of legislation in terms of possible infringement or restrictions of rights
Protected rights are fully enforceable by the High Court – meaning that the High Court is able to declare invalid any section of legislation that violates protected rights, so it is no longer in effect
Such rulings cannot be overruled by parliament
Parliament may then decide to amend legislation and pass it without the offending sections, or seek to alter the Constitution through referendum and remove the right that the legislation is offending (this is very unlikely to succeed)

38. Test your understanding
1.) What is the difference between express rights and implied rights in the Constitution? 2.) Give an example of an implied right that according to the High Court is upheld in our Constitution. 3.) True or false? Give reasons for your answer. a.) The Constitution implies that everyone must have the right to vote in Australia. b.)The Constitution does not imply that we have the right to free speech on any matter. 4.) Section 24 of the Constitution may imply we have the right to vote. Were all Australians given the right to vote when the Constitution came into force in 1901? Explain.

39. Apply your understanding
6.) Examine the four cases above in which the High Court has ruled on the issue of the implied right to freedom of political communication, and answer the following: Why was the Political Broadcasts and Political Disclosures Act 1991 considered to be unconstitutional? Does the implied right to the freedom of political communication provide a guaranteed right of free speech? Explain your answer, using examples from the cases outlined. 7.) Read the Roach Case case study and answer the following questions. Why did Roach challenge the validity of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act? Explain when, according to Justice Gleeson, parliament does have a ‘substantial reason’ to withdraw the right to vote. Explain why the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act was held to be invalid by the High Court. Explain the significance of the Roach Case in relation to the protection of rights in Australia.

40. Choose one case involving the protection of constitutional rights
1.) fill out your table regarding this case 2.) create a visual representation of this case eg – poster, powerpoint presentation, role play, website – the world is your oyster! 3.) you must cover facts, challenges made, High Court decision, significance

41. With the use of an illustrative case example, explain how the High Court can impact on rights protection in Australia (6 marks)

42. Sample response
The high court has been charged with being the guardian of the Constitution, it is the only court through section that can hear constitutional disputes. Through reading, interpreting and applying the words of the constitution, its decisions can affect rights protection. For example, in the case of Roach v Electora Commissioner, the high court was called upon to examine amendments to the Commonwealth Electoral Act and to determine their constitutional validity. The amendment prohibited all prisoners from voting in elections (previously it had only been those serving a sentence longer than 3 years). Vicki Roach was serving a sentence of six years.

43. The High Court found that the legislation was unconstitutional, and threfore ultra vires, as it was contrary to the principle of representative government through sections 7 and 24. These sections require that federal parliament be directly chosen by the people, so that there is a right to vote in order to uphold representative government as a structural protection. However, the court also recognised that the federal parliament could place some restrictions eg people of unsound mind. This was significant as it confirmed the right to vote is enshrined within the structural mechanisms of the constitution, specifically representative government.

44. The high court has been charged with being the guardian of the Constitution, it is the only court through section that can hear constitutional disputes. Through reading, interpreting and applying the words of the constitution, its decisions can affect rights protection. One such case that affected rights protection in Australia is the Langer v Commonwealth of Australia case. Prior to the 1993 election, Langer advocated that voters should vote in a particular way, so as to put candidates from both major parties last. The Australian Electoral Commission warned Langer against such action, where he then took his case to the High Court, arguing that the Electoral Commission’s warning was unconstitutional as it restricted his right to freedom of political communi

45. Differentiate between express rights and implied rights, using examples (4 marks)
Express rights are those rights that are explicitly mentioned within the constitution and are entrenched, meaning they can only be changed via referendum under section 128 of the constitution, for example trial by jury for indictable offences and freedom from discrimination based upon your state of residence, whereas implied rights are not entrenched within the constitution, but have been found by the High Court to have been intended by the writers of the constitution to be protected. We have one implied right, the right to freedom of political communication, which was found through the Australian Capital Television v Commonwealth case.