For over 100 years now, Australia has operated under its rather prized constitution that is in hindsight evidently lacklustre in respect to individual rights and freedoms. The Australian constitution was thought to be sufficient in regards to rights and freedoms despite the lack of an entrenched bill of rights. However, when one dissects the constitution, it becomes increasingly evident that constitutional implications are not an effective way of protecting individual rights and freedoms, and the only way to achieve this is through a bill of rights. This is not to say that our constitution bears completely no recognition of rights , as there are some provisions that do in fact recognize certain rights and freedoms for individuals. This includes s116, s80 and s41 . The Australian constitution amongst its express rights also contains implied rights, and the adequacy of these implied rights is rather debatable, as it becomes increasingly apparent that the extraction of our individual rights and freedoms from constitutional implications is an inconsistent and primitive way of dealing with rights, as the essence is lost somewhere down the track, and we find our freedoms being questioned and removed at the hands of the judicial system.
Express rights in the constitution
Under s116 , “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” . This section is very direct and assertive, and could easily lead one to believe that the commonwealth, under no circumstance, will prohibit the free exercise of any religion. However, even this clear-cut statement in the constitution has not held up in court, as it is overridden in Krygger v Williams , where one man is forced to undergo military training, despite its contradiction to his religious beliefs, allowing conscription laws to overpower an express right in the constitution. Off course, it’s not as clear cut as this, as the courts may have their reasons for rejecting the argument; however it gives us insight into how the constitution itself can be ambiguous at times and rights can in fact be taken away.
Furthermore, s80 of the constitution basically requires that an ‘indictable offence’ must proceed with a trial by jury. Again, we see a direct statement in the constitution that clearly illustrates a right that is given to us. However, if we look at the judicial system in Australia, relatively few cases receive a trial by jury, due to the fact that the definition of an “indictable offence” is left for the government to decide. Nonetheless, another question is raised in respect to the limitations of a trial by jury. Our constitution leaves room for ambiguity, which in turn can lead to the loss of certain rights. Under New Zealand’s constitution, the bill of rights grants the right to a trial by jury to those whose penalty includes imprisonment of more than three months. This is a great example of why Australia needs a Bill of rights, as the New Zealand bill of rights is direct and clear, the loss of certain individual rights in these circumstances is rare. Similarly, according to R v Pearson; ex parte sipka the right to vote, under s41 is only given to those who were entitled to vote at state level before the enactment of the Commonwealth Franchise act 1902, thus indicating that “s.41 has no practical effect today. ”
The express rights stated in the constitution do not stand alone, as the constitution also contains implied rights which have been identified by the high court as; ‘the rights implied from representative and responsible government, and the rights implied from the separation of judicial power. ’
Implied Rights – Text and Structure
The issue of implied rights can be rather contentious at times. Some may even argue that the courts ability to extract implications from the...