Quick questions on Express rights and the implied freedom of political communication: VCE Legal Studies

The Constitution of the Commonwealth of Australia contains a small number of express individual rights protections.

The High Court has recognised an implied freedom of political communication derived from the requirement in ss 7 and 24 of the Constitution that members of the Senate and the House of Representatives be "directly chosen by the people".

The implied freedom of political communication is a limitation on legislative and executive power, not a personal right. It does not give an individual a positive cause of action; it provides a basis for challenging the constitutional validity of a law that burdens political communication.

Most comparable liberal democracies have an entrenched bill of rights protecting freedom of expression, religion, due process and equality. Australia is the outlier. The 2024 Australian Human Rights Commission Free and Equal Position Paper and the Parliamentary Joint Committee on Human Rights 2024 report support a national Human Rights Act using the dialogue model already in place in Victoria, the ACT and Queensland.

Adult persons who have the right to vote at state elections shall not be prevented from voting at Commonwealth elections. The provision is largely transitional; the Commonwealth Franchise Act 1902 and successor Acts now regulate the franchise. The High Court in R v Pearson; Ex parte Sipka (1983) 152 CLR 254 held s 41 had no continuing operation after 1901; this has been criticised but stands.

The Commonwealth has power to make laws with respect to the acquisition of property on just terms from any state or person. Australia v JT International SA (2012) 250 CLR 1 (the tobacco plain packaging case) confirmed that not all impairments of property amount to "acquisition".

The trial on indictment of any offence against any law of the Commonwealth shall be by jury. The provision has been narrowly read (R v Bernasconi (1915) 19 CLR 629; Cheng v The Queen (2000) 203 CLR 248 confirmed Parliament can choose whether to designate an offence as indictable).

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, or requiring any religious test as a qualification for any office or public trust under the Commonwealth. Reading in Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 (the DOGS case) narrowed the establishment clause; Kruger v Commonwealth (1997) 190 CLR 1 narrowed the free exercise clause.

A subject of the Queen, resident in any state, shall not be subject in any other state to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other state. Read broadly in Street v Queensland Bar Association (1989) 168 CLR 461.

Struck down provisions of the Political Broadcasts and Political Disclosures Act 1991 (Cth) that banned political advertising on television. The High Court held that representative government requires freedom of political communication.

The High Court restated the freedom as a limitation on legislative power (not a personal right), and articulated a two-step test:

It is a limitation on legislative power.

No. The High Court has held s 80 applies only where Parliament has designated the offence as indictable. :::