Human Rights

in Australian
Law

The
Constitution

Incorporation of Human Rights

The Constitution:
into
Domestic
Law rights guarantees in the
There
are limited explicit
Constitution, however implied rights have been
interpreted into the Constitution over time by the High
Court
Express: freedom of religion (s116), Right to vote in Cth
elections (s41)(although confirmed in Roach v Electoral
Commissioner (2007), Right to trial by jury in federal
indictable cases (s80) and the right to just terms for the
compulsory acquisition of property (s51(xxxi))
Implied rights: freedom of political communication
(Australian Capital Television Pty Ltd v Cth (1992),
Theophanous v Herald and Weekly Times; later
restricted in Langer v ABC (1997))
The finding of implied rights is controversial and is said to
be outside the power of the High Court
Overall the rights protection in the Constitution is very
limited

Rights within the

Constitution
The Constitution contains both implied rights and express
rights.
Implied rights are those contained in the document but
not explicitly stated.
Express rights are those that are contained in the
document are written directly. These include:
The right to vote (section 41)
The right to just compensation for property acquired by
the government (section 51)
The right to trial by jury for serious offences (section 80)
The right to freedom of movement (section 92)
The right to freedom of religion (section 116)

The Australian Constitution

The Australian Constitution protects human rights in two
important ways:
It defines the system of government though which human
rights are recognised, specifically the Separation of Powers
and the Division of Powers (establishes implied rights)
It also contains specific human rights (establishes express
rights)

As you know, changing the Constitution is not the

easiest task and therefore this method of
protecting human rights is not Australias best
option.

Separation of Powers

The SOP ensures:

Transparency
There is no abuse of power from any one group and all are
subject to the same law
Ensures the Rule of Law is administered
Ensures that civil and political rights are upheld by
eradicating abuses of power by the judicial system right
to fair trial etc.
Established delegated legislation to ensure that
people/groups with the most relevant expertise are making
the laws.

Division of Powers
The DOP ensures:
Powers that are given to states and territories are
administered properly
Most human rights are covered under Federal legislation
Allocated legislation making powers between the states
and federal governments covered by Section 51.
Exclusive, concurrent and residual powers

Incorporation of Human Rights

into Domestic Law

The Constitution:
Separation of Powers
Explain the concept of Separation of Powers with specific reference to
the roles of each branch of government
Describe what the separation of the legislature and judiciary means in
practice
Explain how the independence of the judiciary is an essential
mechanism for upholding the rule of law and protecting human rights

Incorporation of Human Rights

into Domestic Law

The Constitution:
Division of Power
Explain the concept of Division of Power with specific reference to
express, concurrent and residual power
Describe how this division or power helps to protect human rights
Using specific examples, explain the trend in this division since
federation.
How does this trend reinforce the protection of human rights in
Australia?