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Constitutional rights and freedoms

 Constitutional Law

Preview

The framers of the Australian Constitution were not prepared to place fetters upon legislative
action, except in so far as it might be necessary for the purpose of distributing between the states
and the central Government the full content of legislative power. The history of their country had not
taught them the need of provisions directed to the control of the legislature itself … In short,
responsible government in a democracy is regarded by us as the ultimate guarantee of justice and
individual rights.1

The orthodox reasons given for the absence of a Bill of Rights in the Australian Constitution ignore
the real motivations of the drafters. The prevailing sentiment of the framers was that the
Constitution should not incorporate rights-orientated provisions. This was not due to a belief that
rights across the community were generally well protected. While it was certain that the rights and
interests of the framers themselves would be protected under the new federal system, they sought
to establish the means by which the rights of other sections of the community could be abrogated.
In this respect the framers were driven by a desire to maintain race-based distinctions, which today
would undoubtedly be regarded as racism.2

The framers of the Australian Constitution were confident that representative and responsible government
and the common law would provide the best institutional protection for fundamental rights and freedoms.
This notion was consistent with the great faith they placed in Parliament to act responsibly and for the
greater good of the Australian people. In simple terms, it was assumed that Parliament would frame its
legislation in a manner respectful of individual rights and freedoms. But in the event of a government
pursuing a legislative agenda that infringed these rights and freedoms, the people could act to remove
them through the democratic process. In addition, unless legislation clearly states that it intends to
interfere with or override fundamental common law rights, the courts will not impute this intention to the
parliament.3

Consequently, unlike its American counterpart, the Australian Constitution contains few express
constitutional rights. This should come as no surprise. The US Constitution was born from and informed
by revolution. The financial abuses in particular suffered by the American people at the hands of their
English masters forged a strong distrust of unrestrained public power. Its Constitution and Bill of Rights
were drafted in a manner that secured fundamental individual rights and freedoms by placing them
beyond the reach of executive or legislative action. The Australian Constitution was forged in less
dramatic circumstances. For the most part, it was the document that concluded the peaceful union of six
independent colonies.4 A document steeped in the English constitutional tradition and its faith in the
parliamentary system of government.

Those responsible for the drafting of the Constitution saw constitutional guarantees of freedoms as
exhibiting a distrust of the democratic process. They preferred to place their trust in Parliament to
preserve the nature of our society and regarded as undemocratic guarantees which fettered its
powers.5

1
Sir Robert Menzies, Central Power in the Australian Commonwealth (1967) 53–54.
2
George Williams, Human Rights under the Australian Constitution (1999) 25.
3
See Coco v The Queen (1994) 179 CLR 427.
4
I say ‘for the most part’ because the history of the formation of the Australian federation was largely peaceful for its Anglo–
Saxon participants. However, one cannot ignore the great violence and territorial displacement suffered by indigenous
Australians at the hands of the colonisers during this period.
5
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 186 (Dawson J).
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In this topic we will explore the scope of the odd handful of express rights contained in the Australian
Constitution and also the High Court’s controversial implied rights jurisprudence.

Introduction
CLASS READING Please read Hanks casebook [9.2.1]-[9.2.4].

 What explains the Australian “reluctance” to recognise and protect constitutional

rights?

 What assumptions were made as to how fundamental rights and freedoms were to be
protected and promoted in the new Australian Commonwealth?

Express rights

Section 51 (xxxi): just terms for the acquisition of property

Cases Minister of State for the Army v Dalziel

Newcrest Mining (WA) Ltd v Commonwealth.

CLASS READING Please read the Hanks casebook [9.5.1E]–[9.5.10C] and [9.5.19C] and consider
the following issues and questions:

 What ‘double purpose’ does s 51(xxxi) serve?

 What is the interpretive significance of s 51(xxxi) having assumed the status of a

constitutional right?

 To whom must the Commonwealth provide just terms upon compulsorily acquiring
their property? Is s 51(xxxi) relevant when the Commonwealth negotiates rather than
compels an acquisition of property?

 Does s 51(xxxi) bind the States?

 Can the Commonwealth evade s 51(xxxi) by using an informal agreement with the
States?

 Can the Commonwealth seek to circumvent s 51(xxxi) by using another legislative

power to compulsorily acquire property?

 Did the High Court give ‘property’ for the purposes of s 51(xxxi) a broad or narrow
definition in Minister of State for the Army v Dalziel? How was it defined?

 Who can determine what amount to ‘just terms’ for a compulsory property acquisition
under s 51(xxxi)?

 Must the Commonwealth provide just terms for property it compulsorily acquires for a
third party?

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 What was the purpose of the National Parks and Wildlife Conservation Amendment Act
1987 (Cth) in Newcrest Mining (WA) Ltd v Commonwealth?

 What argument was made by Newcrest Mining (WA) Ltd?

 Why, according to Gummow J, was there a compulsory acquisition of Newcrest Mining

Ltd’s property by the Commonwealth?

 Why did McHugh J find that there had been no acquisition of property by the
Commonwealth or another in Newcrest?

An important—indeed threshold—issue in Newcrest was whether s51(xxxi) even applied to the

compulsory acquisition of property in the Northern Territory. In the earlier case of Teori Tau the High Court
unanimously held that section 122 was not subject to the just terms guarantee.

 Do you think that the text of section 122 supports the holding in Teori Tau?

In any event, the correctness of Teori Tau was openly questioned in Newcrest. Indeed, three members of
the Court chose to overrule it. The issue again rose for consideration in Wurridjal v The Commonwealth
(2009) 252 ALR 232, the case where the constitutionality of important aspects of the Federal
Government’s ‘Northern Territory Intervention’ was challenged. In any event, in Wurridjal, a majority of the
High Court (French CJ, Gummow, Kirby and Hayne JJ) overruled Teori Tau and held that section 122 is
subject to the just terms guarantee. Consequently, the Commonwealth must provide just terms when it
compulsorily acquires property in the Northern Territory or indeed any other Australian territory.

 Consider a law that stated that a Member of Parliament forfeits their superannuation
benefit if they are convicted of a fraud or corruption offence when in office. Do you
think such a law enlivens the s 51(xxxi) guarantee of ‘just terms’?

Section 51(xxxi) and section 96

It is important to note here that the High Court has recently made some comments regarding section 96
(the grants power) and whether it is constrained by s 51(xxxi). In ICM Agriculture v Commonwealth four
members of the Court (in obiter comments) said that it was:

The result is that the legislative power of the Commonwealth conferred by s 96 and s 51(xxxvi)
does not extend to the grant of financial assistance to a State on terms and conditions requiring the
State to acquire property on other than just terms.6

Moreover, in ICM Agriculture v Commonwealth the Court said that it would look at the practical (not just
legal) effect of the relevant legislation and any formal agreements (and maybe even informal) made
between the Commonwealth and States to ascertain whether particular (section 96) grant is subject to the
just terms guarantee. In other words, if the practical operation of a Commonwealth law providing a section
96 grant to a State (or States) is to effect an acquisition of property on other than just terms, this will be
6
(2009) 240 CLR 140, 170 (French CJ, Gummow and Crennan JJ), 238-239 (Heydon J).
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unconstitutional even if the property is acquired by a party other than the Commonwealth (such as a
State).

Section 80: trial by jury

CLASS READING Please the Hanks casebook [9.6.1E]-[9.6.24] and consider the following issues
and questions:

 Is s 122 of the Australian Constitution subject to s 80?

 What do you think Dixon and Evatt JJ meant in R v Federal Court of Bankruptcy; Ex
parte Lowenstein when they said in relation to s 80 that ‘[t]here is high authority for the
proposition that ‘the Constitution is not to be mocked’’?

 What is the current scope of the s 80 guarantee? Is a jury guaranteed for the trial of
every serious Commonwealth offence?

 What institution can at present effectively determine the scope of the s 80 guarantee?

 What important distinction regarding the features of a section 80 jury trial did the High
Court make in Cheatle v R (1993) 177 CLR 541? How do you think that distinction is
judicially ascertained and applied in cases where the nature and scope of section 80 is
in issue?

 Can an accused waive the s 80 guarantee?

 Must a s 80 jury trial have 12 members and the verdict be unanimous?

Section 116: freedom of religion

Case Attorney-General (Vic) (Ex rel Black) v Commonwealth (the DOGS case).

CLASS READING Please read the Hanks casebook [9.7.1E]–[9.7.10] and [9.7.13C]–[9.7.15] and
consider following issues and questions:

 Is s 122 of the Australian Constitution subject to s 116?

 How have different members of the High Court defined ‘religion’ for the purposes of s
116?

 On what grounds were the Commonwealth Acts in the DOGS case challenged?

 When, according to Stephen J in the DOGS case, can a Commonwealth law be said to
offend s 116 for establishing a religion?

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The High Court’s reading of the protection offered by s 116 has been far from expansive. For example,
during World War II the Jehovah’s Witnesses, a pacifist religious organisation, adopted a position of
neutrality. The government then made regulations under the National Security Act 1939 (Cth) declaring that
the organisation was prejudicial to the Commonwealth’s war effort. The Adelaide branch of the organisation
was dissolved and the Commonwealth took possession of its premises and other property. Latham CJ said
that, although s 116 protected the free exercise of religion, it did not extend to the protection of all religious
beliefs or practices, irrespective of their political or social impact:

Beliefs entertained by a religious body as religious beliefs may be inconsistent with the
maintenance of civil government. The complete protection of all religious beliefs might result in the
disappearance of organised society, because some religious beliefs … regard the existence of
organised society as essentially evil.7

Similarly, in Krygger v Williams the High Court rejected an argument that a Commonwealth law providing
for compulsory military service offended s 116 for prohibiting the free exercise of religion. The plaintiff
argued that his religious beliefs prevented him from engaging in military service. Griffith CJ stated that:

To require a man to do a thing which has nothing at all to do with religion is not prohibiting him
from a free exercise of religion. It may be that a law requiring a man to do an act which his
religion forbids would be objectionable on moral grounds, but it does not come within the
prohibition of s 116.8

Section 116 and the section 96 grants power

It is also worth noting here that in the DOGS case the High Court made some important obiter comments
regarding section 96 grants and whether they are subject to the religious guarantees enshrined in section
116. Most relevantly, Gibbs J stated:

I consider that the ordinary rules of statutory construction should be applied, and that ss 96 and
116 should be read together, the result being that the Commonwealth has power to grant financial
assistance to any State on such terms and conditions as the Parliament thinks fit, provided that a
law passed for that purpose does not contravene s 116.9

Section 117: freedom from interstate discrimination

Case Street v Queensland Bar Association.

CLASS READING Please read the Hanks casebook [9.8.1E]–[9.8.10] and consider the following
issues and questions:

7
Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116, 126 (Latham CJ).
8
Kryger v Williams (1912) 15 CLR 366, 369.
9
(1981) 146 CLR 559, 593.
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 Why did Barwick CJ and Gibbs J in Henry v Boehm find that the South
Australian Supreme Court rules did not offend s 117? What was the practical
effect of the rules for an out-of-state legal practitioner?

 What are the purposes of s 117 according to Mason CJ in Street?

 What test did Mason CJ articulate in Street for determining whether a law
offends s 117? Did the Rules Relating to the Admission of Barristers of the
Supreme Court of Queensland offend s 117 according to Mason CJ?

 When, according to Mason CJ, can a state legislatively exclude an out-of-state

resident from the enjoyment of a right or privilege associated with residence in
a state without offending s 117?

Implied constitutional rights and freedoms

The Australian constitutional landscape was forever changed in the early 1990s when the High Court
delivered a series of controversial decisions that explored the possibility of rights being implied from the
text and structure of the Constitution.

For some commentators these dramatic developments were undemocratic and tantamount to judicial
invention. How, they asked, could the High Court imply in 1992 what the framers of the Australian
Constitution had explicitly rejected in 1900? Others praised the vision of the High Court and its willingness
to interpret the Constitution in a manner protective of democratic rights and freedoms in a modern society.

We will examine the landmark cases where a majority of the High Court extracted an implied
constitutional right to freedom of political communication and to vote from the system of representative
government established by the Constitution.

CLASS READING Please read the Hanks casebook [10.1.1]-[10.1.4] and consider the following
issues and questions:

 What rights and freedoms did Murphy J imply from the Australian
Constitution? Why do you think most of these were not accepted by the rest of
the High Court?

 What has the derivation of implied constitutional rights and freedoms proven
so controversial?

 What does the High Court now consider the essential touchstone for the
derivation of implied constitutional rights and freedoms?

The implied right to freedom of political communication

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Case Lange v Australian Broadcasting Corporation.

CLASS READING Please read ss 7 and 24 of the Australian Constitution and the Hanks casebook
[10.3.3]–[10.3.4], [10.3.7]-[10.3.18] and consider the following issues and
questions:

 How did the High Court derive an implied constitutional right to freedom of
political communication in Nationwide News v Wills (1992) 177 CLR 1 and
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106?

 Do you think it was legitimate for the High Court to take such a step
considering that the Founding Fathers expressly rejected the need to
incorporate an American-style Bill of Rights into our Constitution?

 Is the constitutional freedom of political communication an absolute right? i.e.

Is it possible for a law that infringes or burdens political communication
protected by the Constitution to still be valid?

 In Theophanous v Herald & Weekly Times Ltd how did the High Court define
the scope of ‘political discussion’ that is prima facie protected by the implied
freedom of political communication?

 What was the important distinction between the majority and minority judges in
Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian
Newspapers Ltd?

 What was the nature of the plaintiff’s claim in Lange v Australian Broadcasting
Corporation?

 In Lange, did the Court find the implied freedom of political communication
was a positive right or a negative right? What is the difference between the
two? What did this entail for the authority of the majority view in Theophanous
v Herald & Weekly Times Ltd?

 What, according to the Court in Lange, is the relationship between the

Constitution and the common law? What did this mean for the law of
defamation considered
in Lange?

 What two-part test did the Court outline in Lange to assess the compatibility of
a law with the implied freedom of political communication?

Importantly, the High Court also confirmed in Lange that the implied freedom of political communication
also limited the legislative (and executive) power of state and territory parliaments.

The discussion of matters at State, Territory or local government might bear on the choice that the
people have to make in federal elections or in voting to amend the Constitution, and on their
evaluation of the performance of federal Ministers and their departments. The existence of national
political parties operating at federal, State, Territory and local government levels, the financial
dependence of State, Territory and local governments on federal funding and policies, and the
increasing integration of social, economic and political matters in Australia make this conclusion
inevitable.10
10
Ibid 571–572 (per curium).
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 In Levy v Victoria the High Court found that the law challenged by the plaintiff did
infringe or burden political communication protected by the Constitution. Why then
did the Court unanimously find the law to be valid?

 Do you think a Victorian law which made it an offence to use any threatening,
abusive or insulting words to any person in a public place would be compatible
with the implied freedom of political communication?

The first limb of the Lange test

Cases Monis v R

CLASS READING Please read the Hanks casebook [10.3.29]–[10.3.32] and consider the following
issues and questions:

 What, according to Hayne J, does ‘effectively burden’ mean regarding the first limb
of the Lange test?

 Why does the first limb of the Lange test not involve a qualitative assessment of
the relevant ‘political communication’ in the view of Hayne J? What was ‘the very
purpose of the [implied] freedom’?

 What is the nature of the inquiry undertaken in order to answer the first limb of the
Lange test?

The second limb of the Lange test

Case McCloy v New South Wales

CLASS READING Please read the Hanks casebook [10.3.43]–[10.3.47] and consider the following
issues and questions:

The reasonably appropriate and adapted test and proportionality

 In Tajjour v New South Wales what test did Crennan, Kiefel and Bell JJ favour to
apply the second limb of the Lange test and what does it involve?

 What was the nature of the legislative challenge in McCloy v New South Wales?

 What significant methodological step did French CJ, Kiefel and Bell and Keane JJ
take in McCloy regarding the the second limb of the Lange test? What is this
development controversial? (nb. consider what ‘strict proportionality’ requires a
judge to do.)

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 What problems and issues did Gageler J have with the proportionality approach of
the majority joint judgment? What (general) approach did he favour?

 What was the interesting (and maybe instructive) point to note regarding the final
outcome in McCloy?

Voting in federal elections

Constitutionally required franchise - An implied right to vote?

Case Roach v Electoral Commissioner.

CLASS READING Please read the Hanks casebook [10.3.67]-[10.3.71] and then consider the
following issues and questions:

 What in your view do sections 8, 30 and 41 of the Constitution seem to provide for?

In R v Pearson; Ex parte Sipka (1983) 152 CLR 254 the High Court considered the meaning of s 41 and
whether this provision provided to adult Australians a constitutional right to vote in federal elections. The
Court held by a 6/1 majority that it did not. The majority said that s 41 — when read in conjunction with
sections 8 and 30 — was a transitional provision that guaranteed only that persons who acquired the right to
vote through sections 8 and 30 at the time of federation could not have it taken away by a later
Commonwealth law. However, once the Commonwealth enacted its own ‘voting/electoral’ law — which it did
with the Commonwealth Franchise Act 1902 (Cth) — it was that law (not s 41) which provided Australians
with the (statutory) right to vote in federal elections.

 What relevance (if any) does s 41 have now?

 What proposition was made by Gibbs J in Attorney-General (Cth) (Ex rel McKinlay) v
Commonwealth? What about Murphy J?

Roach v Electoral Commissioner

 What were the facts in Roach and the nature of the legislation challenged?

 What is ‘universal adult suffrage’ and how did it come about in Australia?

 What, according to Gummow, Kirby and Crennan JJ does the phrase ‘chosen by the
people’ in sections 7 and 24 of the Constitution require?

 Are ‘exceptions’ to universal adult suffrage constitutionally permissible? If so, what

test is to be applied to determine the validity of ‘exceptions’?

 Is it ever constitutionally permissible to deny prisoners the right to vote in federal

elections according to Gummow, Kirby and Crennan JJ?
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 On what grounds according to Gleeson CJ can people be legislatively excluded from

voting in Commonwealth elections?

 In the aftermath of Roach do you think it would be constitutionally permissible for the
Commonwealth Parliament to now amend the Commonwealth Electoral Act 1918 (Cth)
to deny the vote to persons ‘on the ground of race, sex or lack of property’ as asserted
by Gibbs J in Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth?

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