How does the Constitution protect rights in Australia?
the express rights in the Constitution and the implied freedom of political communication
A focused VCE Unit 4 answer to constitutional rights protection. Covers the five express rights (ss 41, 51(xxxi), 80, 116, 117) and the implied freedom of political communication established in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Lange v ABC (1997) 189 CLR 520.
Reviewed by: AI editorial process; not yet individually human-reviewed
Have a quick question? Jump to the Q&A page
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:
- does the law effectively burden the freedom of political communication?
- 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.
Exam-style practice questions
Practice questions written in the style of VCAA exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
2025 VCAA5 marksThe express protection of rights in the Australian Constitution is an effective check on parliament in law-making. Discuss the extent to which you agree with this statement.Show worked answer →
A 5-mark 'discuss the extent' response needs the nature of express rights, an argument that they are an effective check, a counter-argument, and a judgement.
- What express rights are
- The Constitution expressly protects a small number of rights, for example freedom of religion (s 116), the right to trial by jury for Commonwealth indictable offences (s 80), freedom of interstate trade (s 92), no discrimination on the basis of state residence (s 117) and acquisition of property on just terms (s 51(xxxi)). They are entrenched, so they can only be changed by referendum under s 128.
- Argument they are an effective check
- Because they are entrenched, parliament cannot remove or override them by ordinary legislation. The High Court can declare a Commonwealth law that breaches an express right invalid (ultra vires); for example, in the Williams cases the Court struck down Commonwealth school chaplaincy arrangements, and s 116 freedom of religion has been litigated in the DOGS case. This power genuinely restrains parliament.
- Counter-argument (limited)
- The express rights are few and narrow; most protect structural or limited matters rather than broad civil liberties, and several only bind the Commonwealth, not the states. They also operate only after a person with standing challenges a law in the High Court, which is slow and costly, so the check is reactive.
- Judgement
- Express rights are a real but limited check: effective for the specific rights they cover and because they are entrenched, but too narrow to be a comprehensive protection of rights against parliament.
Markers reward identifying express rights as entrenched, the High Court's power to invalidate breaches, the limitation that they are few and narrow, and a clear judgement on 'the extent'.