Implied Rights and the Australian Commonwealth

There has been, and will seemingly always be, contentious debate about what defines “basic human rights.” Inherency in rights is clouded by social context, theology, and politics. As such, creating a legislative system that protects human rights while allowing for a constantly shifting definition of those rights, is a challenge that political scholars and social pragmatists have been grappling with for centuries. Most modern day, Western, democratic governments, as well as the United Nations, have addressed the issue of human rights with a written constitutional bill of rights that defines the freedoms their citizens can expect. The Commonwealth of Australia is the sole exception to this policy. While there has been long-standing debate about the inclusion of a written bill of rights in the Australian Constitution, the protections in the constitution, the framework of the electoral system, the constitutional supremacy and federal oversight over state legislation, and the flexibility of a common law or implied bill of rights, grant protection for human rights that is unsurpassed even in countries with entrenched rights documentation.

Constitutional Rights Protections

The Australian Constitution is not void of human rights considerations; it includes five explicit rights. They are the right to vote, protection against illegal seizure of property, the right to a trial by jury, freedom of religion, and the prohibition of discrimination by State of recidency.1 These rights, as they are entrenched in the Constitution, are upheld both legislatively and through a judicial check of constitutionality by the High Court.2 These rights provide stability and demonstrate a commitment to the stated purpose of the government, to “make laws for the peace, order, and good government of the Commonwealth.”3 The right to vote ensures that the democratic basis of the government, representative rule, will be lasting. The protection of property and the right to a trial by jury guarantees citizens a defense against potential government abuses of power. Freedom of religion separates theology from government and allows for the continuance of familial and social customs that build community. The protection against discrimination based on place of residency guarantees that all citizens of the Commonwealth are seen on equal footing despite any historical or economic inequality associated with the different states. These rights create a baseline of respect for individuals and their ideologies that will be recognized for the lifetime of the Commonwealth.

In addition to these explicitly stated rights, the Constitution and the structure of the government have implicit human rights considerations. The members of Parliament are elected out of the general populace through popular vote where the public exists as a single electorate.4 Thus sovereignty lies with the people and they act, not only, as the creators of the government, but also, as the supreme check of its power.5 In a functioning system, members of the governing body are considered representative of the whole and can, thus, make decisions that are representative of those that would be made by the general populace. When these officials make decisions that fail to adequately represent the public, such as those that would impinge on commonly held human rights, they are replaced. Through collectivism, individual rights are protected.

Moreover, the supremacy of the federal legislature over the states, with its built-in judicial oversight, further guarantees the protection of these entrenched rights. The High Court, while not specifically a legislative body, is tasked with the interpretation of the constitutionality of laws enacted by Parliament.6 Thus the court, in addition to the sovereignty of the people, not only, has the power to uphold the written human rights within the Constitution, but also, has an obligation to do so.7 This power of the High Court extends over the courts within the states, and over the various state parliaments. This is, if an individual state enacts a law that impinges on these entrenched rights, the High Court has the power to declare that law unconstitutional and invalid.8 In this way, the individual citizens are protected against the potential abuses by, and the misrepresentation of their rights at, all levels of government. Together, the explicitly stated human rights protections within the Constitution, the sovereignty of the general public, the representative form government, and the federal and High Court oversight of the states, create a system that is not only built on human rights, but is also perfectly situated to protect those rights.

Extensions of Entrenched Rights: Implied Rights

In order for these entrenched rights to exist and be protected, there are certain implied rights that are logical and necessary. For example, the right to vote in explicitly stated in the Constitution in Section 41, it reads:

No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.9

To a lay person, this grants an explicit right to vote to all people (of age) in any election in their State or in the Commonwealth. This interpretation was challenged in 1983 in R v Pearson; Ex prate Sipka, where the plaintiffs were denied the right to vote because they were not able to register for the upcoming election before the closing of the roll.10 The plaintiffs lost this case on the grounds that the wording in the Constitution referred only to those who had been granted the right to vote in the Franchise Act of 1902, and, thus, the right to vote was not explicit.11 The sole dissenting opinion came from Justice Lionel Murphy who wrote that there were rights, including the right to vote, “that should not be read out of the Constitution by implication.”12 While this ruling stood until Rowe v Electoral Commission in 2010, later that same year, in 1983, Parliament created a statute that required a grace period between the announcement of an election and the closing of the roll.13 This statute essentially solved the problem with voting registration without changing the wording of the entrenched right to vote in the Constitution.

The Rowe v Electoral Commission decision in 2010 reversed the High Court’s standing on the voting rights issue and demonstrated the logical and necessary extension to the entrenched right to vote. From the High Court, “implicit (in the wording of the constitution) is that the electoral process must satisfy the requirements of the system of representative government prescribed by the constitution.”14 This ruling looked at the Constitution as a whole document rather than Section 41 standing alone as in the R v Pearson ruling. When examining the whole document, the High Court found that the framing of the government as one of representative rule implied that the right to vote was conferred on all eligible members of the population as long as the Commonwealth was in existence. To that end, there could be no administrative or procedural processes in place that denied this right to anyone who was eligible. As a result, it is the rights implied by the system of government, rather than those that are explicitly stated within the Constitution, that are used as the basis for voting rights protection.

A further example of the logical and necessary extension of entrenched rights is found in the implied right to free political communication. The Constitution does not contain any clause that discusses the right to free speech in any form. In 1992, the Commonwealth passed the Political Broadcasts and Public Disclosures Act. This act includes clauses that prohibit the broadcasting of political advertisements, or affiliated information, on radio or television in the period leading up to an election and require that public broadcasters provide free advertising time for political purposes at other times during the election process.15 The purpose of which was to prevent negative ad campaigns and slander in the weeks prior to the election, and to allow access to public broadcasting for those with political aspirations who lacked sufficient funds to purchase expensive advertising spots. The thought was that this Act would create a more level playing field for those entering the political arena.

In 1992, eight commercial broadcasters brought a case to the High Court in an attempt to have those clauses in the Political Broadcasts and Public Disclosures Act declared invalid on the grounds that they inhibited their Constitutionally implied right to free speech and represented an illegal seizure of their property.16 The case, Australian Capital Television Pty Ltd v Commonwealth, was heard by the High Court and six justices agreed that there was an inherent freedom of political communication within the Constitution that was violated by the Act.17 They concluded that a representative form of government, as laid out by the Constitution, required freedom of political communication to function.18 Citizens of a representative democracy cannot maintain sovereignty if their ability to make informed political decisions is impaired by legislation enacted by Parliament. As such, the Constitution, insofar as it seeks to create a representative government, implies a right of freedom of communication in regard to political issues. While this ruling does not create a blanket “freedom of speech” as does the United States Bill of Rights, it does allow for the maintenance of sovereignty by the public, and allows for issues of freedom of speech, or slander and defamation, to be heard on a case-by-case basis.

There are many other instances of implied rights being questions before the High Court. Justice Murphy, famous for his Constitutional interpretation that allowed for the protection of these rights, found that the society of Australia, even the Australian underbelly, was implied to be against “slavery and serfdom” in the 1975 case R v Director-General of Social Welfare (Vic); Ex parte Henry.19 He found that they were, as a Commonwealth, against “cruel and unusual” punishment in the Sillery case in 1981.20 These, and other examples, of implied rights in the Constitution make up the implied bill of rights created by the courts and offer protections to the general public that are not explicitly laid out.

Necessity of a Written Bill of Rights

While the list of implied rights granted to the citizens of the Commonwealth is long and grows continuously, there is still debate about the need for a written or entrenched bill of rights. While the protection of entrenchments is alluring, the practical implementation is inflexible and ultimately does not serve the needs of the general public in the long-term. Whereas, the common law, implied bill of rights employed by the Commonwealth of Australia allows for changing interpretations of rights, and successfully separates the pragmatic functions of Parliament from the ideological functions of the courts. In this was, the government is able to maintain peace and order while adapting to changes in social structure, and interpretations of freedoms.

The judicial system of the Commonwealth is founded on the idea of common law, or judge made law, as it originates in the United Kingdom. In the UK, the common law is guided by the Magna Carta of 1215 which is an early human rights treaty that seeks to protect the citizens from the power of the government.21 This idea, that government should not be supreme over the governed, allows for a system of representative government, and limits the scope of the power of that government. Inherent in this system of common law are protections like the refusal of a court to proceed with an unfair trial, or protection against the over-zealous taxing by the government.22 These make up the basis of the existing bill of rights of England and United States, and form the philosophical framework found in the Australian Constitution and judicial system.23

The practical implementation of common law, or judge created law, relies on a system of precedent. That is, rulings by the courts, and specifically the High Court, create a belief system that is used to establish laws. It is then up to Parliament to determine if those rulings become officially legislated through the passage of statutes or laws, or if they are left as implied. The real power of this system comes from the fact that the cases heard in the High Court come straight from the general public, and, in that way, allow the general public to have a part in the creation of common law, and a part in the creation of their own rights. In a system of entrenched rights, cases in the courts are heard through a lens of rights interpretations that may be outdated, which makes it nearly impossible for the general public to participate in the creation of precedent. For example, in the United States a case could be heard about the right for a specific person, or group of people, to possess firearms. This case would be interpreted through a lens created in the 1700’s that suggests that all people have the right to “bear arms” but does not take into account the changes in firearms or the stability of the government or the delineations of mental illnesses that have come up since it was created. In this way, the court that hears the case is bound to protect an entrenched right that may or may not still be valid. Conversely, the Australian High Court is not bound to a written rights document and can make judgments about rights that are current and able to be changed in the future. In this way, the general public in Australia is more protected by a system of common law and an implied bill of rights than citizens in countries with entrenched rights.

In addition to the ability of the general public to participate in the creation of rights that are timely, the representative government coupled with the judicial system gives the public increased control over the creation of laws and statutes. For example, in the case of R v Pearson, Ex parte Sipka, the High Court ruled against the plaintiffs, or in favor of a narrow interpretation of the Constitution that did not expressly grant the right to vote.24 Logically, this interpretation was not received well by the public who were, not only, under the impression that the Constitution guaranteed them the right to vote, but were also, not willing to accept that they could be denied the right to vote in the future. As such, the members of Parliament, as the chosen representatives of the people, created a statute that alleviated the specific procedural issue that had prevented the plaintiffs from being able to vote. In doing so, they demonstrated a commitment to the general public and the protection of the rights that the public felt belonged to them. If those members of Parliament had failed to create that statute, and the issue was of significant enough importance to the public, they could have voted in new members of Parliament who, they felt, more closely represented their ideals. In this way, the general public has access to the creation of laws protecting rights, and has the ability to interpret those rights, through both the judiciary and the legislative braches of the government, neither of which are bound to a potentially outdated rights document.

In addition to the creation of rights through the judicial and legislative systems, the general public has access to the Australian Human Rights Commission that investigates complaints of human rights violation. This committee was formed in 1986 for the purpose of protecting the public from rights violations associated with discrimination based on gender, disability, or age.25 Complaints heard by the committee are often negotiated and settled without involving the courts. This provides an accessible venue for the general public to have their human rights complaints heard.

The federal government is checked in its legislative power by the sovereignty of the people and enacts laws to protect human rights based on the will of those people and the common law assessment of rights made by the High Court. The High Court has a history of common law that seeks to protect the public from the power of a representative government, and, based on this history and the fact that the Constitution of the Commonwealth establishes a representative form of government, the courts have created an implied bill of rights. This bill of rights guarantees that, not only, will the general public not be denied the right to vote for its representatives and participate in democracy, but also, that they have the right to be informed about the larger political landscape that their vote exists within. As such, the public is adequately protected from government abuses of power and has the ability to control the interpretation of human rights and impact the implementation of laws to protect those rights. In this way, the implied bill of rights in the Commonwealth of Australia offers more human rights protections than the entrenched bills of rights in other nations. Moreover, the increased flexibility of the common law system, allows for easier changes in those protections as mindsets about what constitutes “basic human rights” shift with time.

Notes

1. “Commonwealth of Australia Constitution Act,” Parliament of Australia, April 2014. http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~

link.aspx?_id=956BE242B820434A995B1C05A812D5E1&_z=z.

2. Haig Patapan. Judging Democracy: The New Politics of the High Court of Australia, (Cambridge: Cambridge University Press, 2000), 3.

3. “Commonwealth of Australia Constitution Act,” Section 51.

4. “Commonwealth of Australia Constitution Act,” Section 7.

5. Leslie Zines, “A Jucially Created Bill of Rights?,” Sydney Law Review 166, no 16. (1994): 35.

6. Bradley Selway, John M. Williams. “The High Court and Australian Federalism,” Publius 35, no 3. (2005): 467.

7. Wil Waluchow, “Constitutionalism,” Stanford Encyclopedia of Philosophy, April 2014. http://stanford.library.usyd.edu.au/entries/constitutionalism/.

8. “Commonwealth of Australia Constitution Act,” Section 73.

9. “Commonwealth of Australia Constitution Act,” Section 41.

10. Tony Blackshield and George Williams. Australian Constitutional Law and Theory Supplement, (Federation Press, 2012), 1.

11. “The Parliament of the Commonwealth of Australia and Indigenous Peoples 1901-1967,” Parliament of Australia, April 2014.http://www.aph.gov.au/About_ Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0001/01RP10.

12. John Williams. “Lionel Keith Murphy,” High Court Assets, April 2014. http://www.hcourt.gov.au/assets/justices/coper_hca11_murphy.pdf, 485.

13. Blackshield and Williams, Australian Constitutional, 1.

14. Blackshield and Williams, Australian Constitutional, 2.

15. “Political Broadcasts and Disclosures Act of 1991,” Australian Government ComLaw, April 2014. http://www.comlaw.gov.au/Details/C2004A04278.

16. “Free Speech and the Constitution,” Australian Government Solicitor, 14 April 1993. http://www.ags.gov.au/publications/legal-briefing/br01.htm, 1.

17. Ibid., 1

18. Ibid., 1

19. John Williams, Lionel Keith Murphy, 486.

20. Wendy Lacey. “Judicial Discretion and Human Rights: Expanding the Role of International Law in the Domestic Sphere,” Melbourne Journal of International Law, 5. (2004): 4.

21. “How are Human Rights Protected in Australian Law?,” Australian Human Rights Commission, 2006. http://www.humanrights.gov.au/how-are-human-rights-protected-australian-law, 1.

22. “Magna Carta and Its American Legacy,” National Archives and Records Administration, April 2014. http://www.archives.gov/exhibits/featured_documents /magna_carta/legacy.html, 1.

23. Ibid., 1.

24. Blackshield and Williams, Australian Constitutional, 2.

25. “How are Human Rights Protected in Australian Law?,” 1.

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Waluchow, Wil. “Constitutionalism,” Stanford Encyclopedia of Philosophy, April 2014. http://stanford.library.usyd.edu.au/entries/constitutionalism/.

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Zines, Leslie. “A Jucially Created Bill of Rights?,” Sydney Law Review 166, no 16. (1994): 35-48.