The Protection of Rights

Most Australians take it for granted that they have basic rights, however unlike other western democracies, our Constitution does not contain a bill of rights and very few rights are actually explicitly guaranteed by our Constitution.

As we know, in 1901 the writers of the Constitution were concerned about protecting the rights of states - they were not particularly worried about protecting the rights of individual citizens.

However, a constitutional bill of rights is only one way to protect human rights. In Australia rights are protected in a number of ways:

• the Constitution mentions a few rights

• rights are outlined in international treaties that we have signed - this means they are influential, if not legally enforceable

• some rights are protected by our common law - for example the right to silence, and the right to a fair trial

• Commonwealth and state anti-discrimination legislation

• Victorian Charter of Human Rights & Responsibilities and the ACT Human Rights Act

It could be said that in Australia rights are mainly protected by ‘a legislation and common law approach’

Ways of protecting rights

Some countries, like the USA, Canada and South Africa have a bill of rights as part of country’s constitution.

An express right (or an explicit right) is a right specifically listed in a document or constitution. They are often entrenched in a constitution.

An entrenched right cannot be changed by an act of parliament. A right contained in a constitution can only be changed in the manner set out by the constitution

For example, in Australia the right to freedom of religion is in the Commonwealth Constitution and could only be changed through referendum.

Ways of protecting rights

In other countries, like New Zealand, a bill of rights is part of an act of parliament – this is called a statutory bill of rights. It can be changed by other acts of parliament. It is not entrenched. Victoria and ACT have statutory bills of rights.

In Australia, rights are protected by the constitution in three ways:

• structural protection• express rights• implied rights

Structural protection

The Constitution sets up the Australian parliamentary structure. This structure provides for the protection of some rights. For example, the Constitution provides for:

• responsible government• representative government s.7 and s.24• separation of powers

These three constitutional principles underlie our democratic system of government and provide checks and balances to prevent abuse of power and thereby indirectly protect human rights.

Structural protection = the systems, structures or mechanisms found in our

Constitution that operate to indirectly protect human rights by preventing the misuse or abuse of power.

Express rights

A small number of rights are actually expressly stated in the Constitution. These rights are entrenched, meaning they can only be changed or removed through referendum – the Commonwealth Parliament cannot remove them by passing an act of parliament.

There are only five express/explicit rights in our Constitution

• The acquisition of property ‘on just terms’ s.51• Trial by jury s.80• Freedom of interstate trade and commerce s.92• Freedom of religion s.116• Freedom from interstate discrimination: s.117

Implied rights

Implied rights are those not explicitly stated or written in the Constitution, but which the High Court believes to have been ‘suggested’ or ‘intended’ by the authors of the Constitution.

The High Court has found one implied right:

Freedom of political communication/speech: in interpreting the Constitution, the High Court has indicated that there are implied rights to freedom of speech and communication on political matters

The Roach Case - is voting an implied right?

Vicki Lee Roach was convicted in 2004 of five offences (incl. burglary, conduct endangering persons) and was sentenced to six years imprisonment, eligible for parole in Aug 2008.

Legislation since 1902 has provided that some prisoners cannot vote in federal elections, but the 2006 amendments to the Electoral Act prohibited all prisoners who were serving a sentence from voting (before 2006 it was only prisoners serving >3 years)

Ms Roach challenged the constitutional validity of the 2006 amendments on four grounds:

• any legislation that disqualifies electors must satisfy the ‘representative government’ criteria

• the Commonwealth has no power to legislate against people convicted under state laws (= most criminal laws)

• the implied freedom of political communication protects voting in federal elections

• the 2006 amendments limit did not uphold the representative and responsible government system mandated by the Constitution.

The High Court Decision based its decision on the fourth point - in a 4:2 majority the High Court held that the 2006 amendment was invalid and unconstitutional because it was inconsistent with the principle of representative government. Three of the Justices (Gummow, Kirby, Crennan) found that representative government enshrines a right to vote.

Justice Gleeson found that s7 and s24 of the Constitution protected the right to vote. The High Court recognised that this right can be restricted, but only in limited circumstances - the right to vote could be removed for serious criminal misconduct, but not for minor offenders.

Since Vicki Lee Roach was serving a sentence longer than three years, she was still unable to vote in the 2007 election!

The Roach Case - is voting an implied right?

Significance of the Roach case

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.

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.

Thus, representative government can act as a limit on the power of Commonwealth Parliament - it cannot legislate for the removal of the right to vote without good reason.

How effective if the Constitutional approach to rights protection?

STRENGTHS

• The High Court was established to be the guardian of the Constitution and serves an important role in interpreting and enforcing protected constitutional rights and ensuring rights are upheld.- High Court enforces/protects rights

• Express rights are entrenched in the Constitution, so they can only be changed by referendum (requiring overwhelming support from the people)difficult to change

• The High Court has the ability to find implied rights through interpretation

• New rights could be added to the Constitution through referenda-capacity to add

• The High Court can declare legislation to be invalid if it infringes on the rights• protected in the Constitution-High Court protection

• A combination of protection mechanisms (structural protection, express rights and implied rights) prevents the abuse of power by the Commonwealth Parliament- combination of mechanisms

How effective if the Constitutional approach to rights protection?

WEAKNESSES

• The Constitution only protects a limited number of rights, with the legal system relying heavily on legislation and common law to protect rights-limited

• The protected rights are spread through the Constitution, and are not clearly outlined in a bill of rights- difficult to identify

• The wording of the Constitution is difficult to change, thus it is difficult to amend/ add explicit rights-difficult to change

How effective if the Constitutional approach to rights protection?

WEAKNESSES

• The High Court must wait for a case to come before it with a relevant issue before it can make a declaration of invalidity - this can be a lengthy and costly procedure for the parties involved-’complaints based’

• There is no check at the drafting stage of a bill to check whether bills are likely to infringe on rights so an act can only be assessed after it has come into effect and infringed on rights-not proactive

• High Court can only declare the legislation in question to be constitutionally valid or invalid - there is no remedy for aggrieved parties-no remedy

• Most rights provisions only place a responsibility on Commonwealth parliament and do not limit the actions of state parliaments.-no limits to state power

United States of America

Type of protection: Entrenched- the bill of rights is the name given to the first 10 amendments to the United States Constitution, although further amendments have since been added.

Some express rights protected:• Freedom of religion, speech, press, peaceful assembly,

petition• Right to keep and bear arms• Right to speedy and public trial• Right to trial by jury in civil cases• Protection from excessive bail fines and cruel and unusual

punishments

United States of America

Subsequent amendments to the Constitution have protected further rights including, the abolition of slavery, equal protection before the law for all US citizens; right to life, liberty and property; right to citizenship and the vote for all, regardless of race, colour or sex; voting age of 18 years or older.

United States of America

Implied rights: The US Supreme Court has also found implied rights within the US Bill of Rights, such as the right to privacy

Structural Protection of rights: O Representative governmentO Separation of powers

O There is NO RESPONSIBLE GOVERNMENT in the US system

United states of America

Interpretation and enforcement

The US Supreme Court is the court charged with interpreting the Constitution. It has undertaken many interpretations of the Constitution, shaping its meaning and finding the implied right to privacy.

The Supreme Court has the power of judicial review- to judge the constitutionality of any act or law, and declare it invalid if it infringes the Bill of Rights. Such a declaration of invalidity cannot be overruled by Congress.

Comparing the protection of rights

Country Bill of Rights?

Scope of rights protected

Can courts declare laws offending rights to be invalid?

Are courtsrequired tointerpret lawsin light of therights?

Australia No, but some rights are constitutionally protected

Limited (only 5)

Yes No

United States

Yes. Bill of Rights entrenched as part of the Constitution

Quite Extensive

Yes No

Similarities Differences

• Express rights are entrenched and can only be changed by holding a referendum to change the Constitution (a more complex procedure in the US than here)

• Rights are fully enforceable by the courts, which can declare legislation that violates the protected rights as invalid; this declaration cannot be overruled by parliament/congress

• Structural protection of rights, with the separation of powers and representative government existing to protect human rights through the misuse of power

• The superior courts have found implied rights that have been read into the Constitution

• The US Bill of Rights has a far more extensive list of express rights than the Australian Constitution.

• The referendum procedure of the US is far more complex and lengthy than in Australia

• No doctrine of responsible government in the US, where the president is separate from Congress. He/she may still rule even without the majority support of Congress.

• Separation of powers is strictly adhered to in the US , whereas there is some overlapping of the legislative and executive functions in Australia.