Topic 3

Express vs implied rights

Express rights are written directly into the Constitution or legislation (e.g. s80 jury trial, s116 religion). Implied rights are not written but are inferred by the High Court from the Constitution's structure, mainly representative and responsible government (e.g. freedom of political communication, right to vote). Australia has no federal Bill of Rights, so protection is patchy. Express and implied rights limit government power and help ensure everyone is treated equally before the law, in both criminal and civil contexts.

Right to free speech

mplied (no express right). SOURCE: Implied freedom of political communication, from ss7 and 24 of the Constitution (ACTV 1992; Lange 1997). Also protected in the Qld Human Rights Act 2019. WHAT IT SUPPORTS: Representative and responsible government, because voters need to freely discuss government and political matters to make informed choices. Supports equality by letting all citizens take part in political debate. LIMITS: Restricts government, not individuals. Not absolute; can be limited by defamation, hate speech, sedition and contempt laws if reasonably appropriate and adapted (Lange test).

Right to protest and freedom of assembly

Implied (no express right). SOURCE: Protected indirectly through the implied freedom of political communication, the Qld Human Rights Act 2019 (peaceful assembly) and regulated by the Peaceful Assembly Act 1992 (Qld). WHAT IT SUPPORTS: Citizens' ability to challenge government, raise awareness and pressure for reform, which supports democratic participation and accountability. LIMITS: Police can restrict protests for public safety and order; unauthorised protests risk fines or arrest. Courts can strike down laws that overly restrict protest (Brown v Tasmania 2017).

Freedom from discrimination

Statutory (no general constitutional right). SOURCE: Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, Age Discrimination Act 2004 (all Cth); Anti-Discrimination Act 1991 (Qld). s117 only prevents discrimination based on state of residence. WHAT IT SUPPORTS: Equality under the law and equal access to work, education and services regardless of attributes such as race, sex, age or disability. LIMITS: Exceptions apply (e.g. religious bodies, genuine occupational requirements); parliament can amend or override these laws. Complaints go to the AHRC or QHRC, then courts or tribunals.

Express and implied rights in Australia

EXPRESS RIGHTS (written in the Constitution): 1) s80, trial by jury for Commonwealth indictable offences. 2) s116, freedom of religion (no establishment of religion, no religious test, no prohibiting its free exercise, no imposed observance), binding the Commonwealth only. 3) s117, no discrimination based on state of residence. 4) s51(xxxi), acquisition of property on just terms. 5) s92, freedom of interstate trade, commerce and intercourse. 6) s41, a right to vote for those who held it at federation, now largely ineffective.

IMPLIED RIGHTS (inferred by the High Court from the Constitution's structure): 1) freedom of political communication (ACTV 1992; Lange 1997). 2) right to vote (ss7 and 24, "directly chosen by the people"; Roach 2007). 3) judicial independence and impartiality, which protects the right to a fair hearing (Kable 1996; Chapter III). 4) protection from punishment or detention imposed by parliament or the executive instead of the courts (Chu Kheng Lim 1992). Note: freedom of speech, protest and freedom from discrimination are not express, and are protected through implied rights, statute and common law.

Right to democratic representation

Implied (with s41 express but largely ineffective). SOURCE: Ss7 and 24 of the Constitution ("directly chosen by the people"), interpreted as an implied right to vote (Roach v Electoral Commissioner 2007). Compulsory voting under the Commonwealth Electoral Act 1918. WHAT IT SUPPORTS: Representative democracy and political equality, where every eligible citizen has a say in who governs. LIMITS: Parliament can regulate who votes if the law is for a substantial reason; a blanket ban on prisoner voting was invalid, but a ban for longer sentences was valid.

Freedom of religion

TYPE: Express. SOURCE: s116 of the Constitution; the Qld Human Rights Act 2019. WHAT IT SUPPORTS: Freedom of conscience and belief, equal treatment of people of all faiths (or none) and separation of religion from government (no established religion, no religious test for public office). LIMITS: Binds the Commonwealth only, not the states; read narrowly by the High Court (Kruger v Commonwealth 1997; DOGS case 1981). Can be limited where reasonable and justified.

Right to trial by jury

TYPE: Express. SOURCE: s80 of the Constitution; state offences covered by state law (e.g. Jury Act 1995 (Qld)). WHAT IT SUPPORTS: A fair trial, community participation in justice and protection against government overreach, because ordinary citizens decide guilt. Supports equality as all accused are judged by their peers. LIMITS: Applies only to Commonwealth indictable offences, and parliament can avoid it by choosing summary prosecution (Kingswell 1985; Alqudsi 2016). Verdicts must be unanimous (Cheatle 1993).

trial by jury

TYPE: Express. SOURCE: s80 of the Constitution; state offences covered by state law (e.g. Jury Act 1995 (Qld)). WHAT IT SUPPORTS: A fair trial, community participation in justice and protection against government overreach, because ordinary citizens decide guilt. Supports equality as all accused are judged by their peers. LIMITS: Applies only to Commonwealth indictable offences, and parliament can avoid it by choosing summary prosecution (Kingswell 1985; Alqudsi 2016). Verdicts must be unanimous (Cheatle 1993).

Right to an impartial and independent court

Implied. SOURCE: Chapter III of the Constitution and the Kable principle (Kable v DPP (NSW) 1996). Also protected by common law (natural justice) and the Qld Human Rights Act 2019 (fair hearing). WHAT IT SUPPORTS: The rule of law, a fair hearing and equality under the law, because decisions are made independently of parliament and the executive. LIMITS: Does not stop parliament passing laws; only prevents courts being given functions that compromise their independence.

Legal processes for resolving human rights complaints (overview)

Citizens can use non-legal and legal avenues. Non-legal: protesting, petitions, lobbying MPs, social media and media campaigns. Legal: lodging a complaint with a commission (AHRC or Queensland Human Rights Commission), which investigates and attempts conciliation; if unresolved, the matter can go to a court or tribunal (e.g. Federal Circuit and Family Court, QCAT) for a binding decision. Other avenues include the Ombudsman, complaints to police, and High Court challenges to the validity of laws. Processes differ in cost, formality, speed and enforceability.

TERM: Protesting

A public, collective expression of disagreement (marches, rallies, strikes, sit-ins) used to raise awareness and pressure governments to change laws or policy. In Qld, organisers can notify police under the Peaceful Assembly Act 1992 for legal protection. Strengths: visible, low cost, builds public support (e.g. Black Lives Matter and marriage equality rallies). Weaknesses: no guaranteed outcome, can be restricted for public safety, and unauthorised protests risk arrest or fines.

Lobbying

Directly persuading politicians or decision-makers to support a change in law or policy, through meetings, letters, submissions to inquiries and petitions to parliament. Carried out by individuals, unions, businesses and interest groups. Strengths: can influence law-making at its source, anyone can do it and can represent the wishes of the people more then protests. Weaknesses: groups with more money and access have greater influence, and success depends on political will. Lobbyists must register on the Lobbyists Register (Cth and Qld).

Lodging a complaint (human rights commissions)

A person who experiences discrimination or a breach of human rights can lodge a written complaint with the Australian Human Rights Commission (federal discrimination laws) or the Queensland Human Rights Commission (Anti-Discrimination Act 1991 and Human Rights Act 2019). The commission assesses it, then offers free, confidential conciliation. Strengths: free, informal, accessible. Weaknesses: outcomes are not binding, and a commission cannot itself make enforceable decisions on discrimination.

Tribunal and court actions

If conciliation fails, the complainant can apply to a court or tribunal for a binding decision. Federally, this is the Federal Court or Federal Circuit and Family Court (AHRC terminated complaints). In Qld, unresolved discrimination complaints can be referred to QCAT, and human rights issues can be raised alongside other legal actions. Remedies include compensation, orders to stop the conduct, apologies or policy changes. Strengths: enforceable and authoritative. Weaknesses: expensive, slow, formal and stressful, with costs risks in courts.

Australian Human Rights Commission (AHRC)

An independent statutory body established under the Australian Human Rights Commission Act 1986 (Cth) to promote and protect human rights. Roles: investigating and conciliating discrimination complaints, running education and awareness programs, conducting national inquiries (e.g. Bringing Them Home 1997), reporting on human rights, reviewing laws and policy, and intervening as amicus curiae in court cases. It has several commissioners (e.g. Sex, Race, Disability, Age, Human Rights). Limitation: it can recommend but not enforce, and depends on government funding and response.

Australian Law Reform Commission (ALRC)

An independent federal body that reviews areas of Commonwealth law when asked by the Attorney-General and recommends reforms. It researches, consults the public and experts, and publishes reports with recommendations (e.g. Pathways to Justice 2017 on Indigenous incarceration). Strengths: thorough, independent, evidence-based and informed by community views. Limitation: recommendations are not binding, so parliament can ignore them or implement only some.

State and territory law reform bodies

Bodies such as the Queensland Law Reform Commission, Victorian Law Reform Commission and NSW Law Reform Commission, which review state laws referred by the Attorney-General. They consult communities, publish discussion papers and reports, and recommend changes. Example: the QLRC's work on assisted dying and on women's safety. They protect rights by identifying outdated or unfair laws. Limitation: reports are advisory, and reforms depend on government priorities.

role of the courts in protecting human rights

Courts interpret and apply laws, resolve disputes and protect rights by ensuring fair trials and procedural fairness. The High Court can invalidate laws that breach the Constitution, including implied rights (Roach, Brown v Tasmania), and develops common law (Mabo (No 2) 1992 recognised native title). Courts can order remedies such as compensation or injunctions and review government decisions (judicial review). Limitations: courts cannot create new laws, must wait for a case to be brought, and litigation is costly and slow.

Queensland Council for Civil Liberties (QCCL)

A volunteer-based, non-government organisation that promotes and defends civil liberties in Queensland. It monitors and comments on proposed laws, lobbies government, makes submissions to inquiries, observes protests, gives public commentary and provides advice on rights. Example: it has opposed expanded police powers and restrictions on protest. Strengths: independent and informed advocacy. Limitations: relies on volunteers and donations, and has no power to enforce changes.

Human Rights Law Centre (HRLC)

An independent not-for-profit legal organisation that protects and promotes human rights in Australia through strategic litigation, legal advocacy and campaigning. It represents people in key court cases (e.g. challenging laws affecting asylum seekers and protest rights), intervenes in cases, makes submissions to parliament and inquiries, and works to strengthen human rights laws. Strengths: legal expertise and ability to bring test cases. Limitation: limited resources, so it can only take on selected cases.

Australian Lawyers for Human Rights (ALHR)

A national network of legal professionals, law students and academics who promote human rights in Australia through advocacy and education. They make submissions on proposed laws, comment on court decisions and legal developments, run education events and campaigns, and provide expert legal commentary. Example: advocating on refugee rights and Indigenous rights. Strengths: legal credibility. Limitation: largely volunteer-run, with no power to enforce outcomes.

Role of the media in protecting human rights

The media informs the public, investigates and exposes rights abuses (e.g. Four Corners' Don Dale footage 2016 led to a Royal Commission), holds governments accountable, gives a platform to marginalised voices and shapes public opinion that pressures governments to act. Social media allows rapid mobilisation (e.g. #MeToo). Limitations: bias, sensationalism, ownership concentration, misinformation, defamation and contempt laws, and the risk of prejudicing fair trials.