Sections of the Australian Constitution and Express rights

Section 116

This applies to the right to Freedom of Religion. States that no law may establish a state religion, impose any religious observance, prohibit the free exercise of any religion, or require a religious test as a requirement for Commonwealth office. It also protects non-believers by indirectly providing for the ‘right of a man to have no religion’. However, the section prohibits only Commonwealth laws from restricting religious freedom in these ways; it does not to apply to state laws.

Section 92

This is the right to Interstate Trade and Commerce. This section states that interstate trade and commerce is to be free, it does not however mention that it applies to free movement of people. This right is more a structural underpinning of the economy to prevent parochial restrictions on economic activity, rather than a fundamental democractic or human right.

Section 117

It is unlawful for state and Commonwealth governments to discriminate against someone on the basis of that person’s state residence. (Discrimination)

Section 51 (xxxi)

According to this section, the Commonwealth must provide ‘just terms’ when acquiring property. This means that the Commonwealth can acquire someone’s property, but must pay fair compensation. It does not apply to the acquisition of property by state governments. (Just terms when acquiring property)

Section 80

There must be a jury trial for indictable Commonwealth offences. However, this is a very limited right because:

• Most indictable offences are crimes under state law, and this section only applies to Commonwealth offences.

• The High Court has ruled that ‘indictable’ means ‘crimes tried on indictment’. Hence, the government can avoid a jury trial for a particular offence by legislating for the offence to be a summary offence.

(Jury trial)

Section 51 & 52

The parliament has power to make laws for the peace, order and good governance of the Commonwealth.

Section 109

When a law of a state is inconsistent with the law of the Commonwealth, the state law shall be overridden by the Commonwealth law, so far as the inconsistency

Section 114

States cannot raise armies or navies

Section 115

States cannot coin money or legal tender

Section 106

Any law making power not specifically listed in the Constitution shall remain with the State unless changed

Section 128

The referendum process is outlined and states that any changes to the Constitution, can only be doen through this means

Section 127

Aborigines not to be counted in the reckoning of the population this section was STRUCK OUT after the referendum of 1967Se

Section 75/76

Constitution establishes the High Court and also states that only the High Court has the jurisdiction to hear disputes regarding the Constitution as well as disputes between State and Commonwealth

Section 7/24

States that the members of the House of Representatives and the Senate must be directly chosen by the people of the Commonwealth. It doesn’t specifically state the right to vote; however, it is implied in these sections, as shown in the Vicky Roach Case.

Section 51 (xxxvii)

Referral of power from State to Federal, allows the State government to refer a residual power to the Federal Government