the express rights in the Constitution and the implied freedom of political communication

What this dot point is asking

VCAA wants you to know what rights the Constitution actually protects, both expressly and by implication, and how effective that protection is. Expect a 5-8 mark medium response or as part of an extended response.

The answer

Express rights

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

Section 41: voting in Commonwealth elections

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.

Section 51(xxxi): acquisition of property on just terms

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".

Section 80: trial by jury for indictable Commonwealth offences

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).

Section 116: freedom of religion at federal level

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.

Section 117: freedom from state-residence discrimination

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.

These express rights are limited in scope. They bind only the Commonwealth (s 116, s 51(xxxi)) or extend to limited subject matter (s 80).

The implied freedom of political communication

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".

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. 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.

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (decided the same day) similarly affirmed the freedom.

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The High Court restated the freedom as a limitation on legislative power (not a personal right), and articulated a two-step test:

1. does the law effectively burden the freedom of political communication?
2. is the law reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintained system of representative and responsible government?

McCloy v New South Wales (2015) 257 CLR 178 introduced a structured proportionality test, refining the second Lange step into suitability, necessity, and adequacy of balance.

Brown v Tasmania (2017) 261 CLR 328 struck down anti-protest provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) that targeted forestry protests.

Comcare v Banerji (2019) 267 CLR 373 confirmed that a Commonwealth public servant's tweets criticising government policy could be subject to disciplinary action; the implied freedom did not protect them in that context.

The freedom is not a personal right

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.

Comparison with overseas

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.