Quick questions on Express Constitutional Rights: WACE Year 12 Politics and Law

The standard list has five. Section 80 guarantees trial by jury for indictable offences against Commonwealth law. Section 116 prevents the Commonwealth from establishing a religion, imposing religious observance, or prohibiting the free exercise of religion, and bars religious tests for Commonwealth office. Section 51(xxxi) requires that when the Commonwealth acquires property it must do so on just terms (fair compensation).

Two express rights have proved more effective. Section 51(xxxi) (just terms) has been used successfully to require fair compensation when the Commonwealth acquires property, giving it genuine practical force. Section 117 was strengthened in Street v Queensland Bar Association (1989), where the High Court held that a residency requirement for admission to the Queensland Bar unlawfully discriminated against a New South Wales resident, breathing life into a previously dormant guarantee. These show the express rights are not all hollow.

When you evaluate, the central judgement is that express constitutional protection in Australia is narrow and patchy. There are only five rights; some have been read down almost to nothing; most bind only the Commonwealth, not the states; and they cannot be added to without a section 128 referendum. Their strength is entrenchment: where they do apply, they cannot be overridden by ordinary legislation and are enforced by the High Court. A strong answer contrasts this thin constitutional protection with the broader coverage of statute, common law and international instruments, and notes that the absence of a comprehensive bill of rights is the defining feature of rights protection in Australia.