Express rights


Acquisition of property on just terms

  • S 51 xxxi states that any acquisition of property by the Commonwealth must be on just terms
  • This means that the C’th may acquire property for a purpose in which it is able to legislate for, but must give adequate compensation for the use or purchase of the property.
  • Telstra v. the Commonwealth 2008

Trial by jury for federal indictable offences

  • S 80 states that all federal indictable offences must be tried by jury
  • Jury verdicts in these cases need to be unanimous
  • Cheatle v. the Queen 1993

Freedom of interstate trade and commerce

  • S 92 upholds an economic right for freedom of interstate trade
  • Cole v. Whitfield 1988.
  • Whitfield was a Tasmanian crayfish importer who was charged with importing undersized crayfish from SA (undersized by TAS law, not SA). Whilst the section holds that trade must be ‘absolutely free’ from state interference. The TAS law was upheld, since it was environmentally conservational, and non-protectionist in nature.

Parliament may not legislate establishing any religion

  • S 116 protects rights with respect to religion, including being prohibited to legislate against the free exercise of religion
  • Adelaide Company Of Jehovah’s Witnesses v. the Commonwealth 1943

Freedom from interstate discrimination

  • S 117 gives protection to Australian citizens from being discriminated against on the basis of the state they live in
  • Street v. QLD Bar Association 1989.
  • Street was a SA barrister who wished to practice in QLD. The Bar refused him admission based on the fact that he was still a resident of SA. HC ruled that this was against the Constitution.

Evaluation – strengths

  • They are fully enforceable by the HC. If a statue infringes on these rights, the HC can invalidate the legislation
  • Should the HC invalidate the legislation, Parl may
    • Amend the legislation
    • Hold a referendum
  • Express rights are usually civil and political rights
  • They work to limit the power of the Commonwealth
  • Implied rights reflect values of society

Evaluation – weaknesses

  • Rights are limited in number and are mainly prohibitions on the law-making powers of Parl, not protecting human rights
  • Many basic rights are not stated in the Constitution
  • Interpretation of express rights is narrow (to define is to limit)
  • Enforcement through HC is time-consuming and costly

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