Rights in the Constitution Clare Saunders Warren Hennessy

What is a “right”? A right is a claim to something which is justified I claim that I have a right to free chocolate for the rest of my life I justify this on the basis that I like chocolate, but this isn’t a valid justification. A valid justification for making a claim can be moral or legal.

Moral Rights A moral right is a right that you claim to have based on some moral principle. I have the right to be treated the same as a man. The justification for making that claim is that people should be treated equally. I am using a moral principle about equality to justify my claim.

Legal Rights A legal right is a right that you claim which is justified by law. The right to have free chocolate every day is not a legal right because there is no law which gives you that right. If you are renting a property, you have a legal right to have the property maintained to a reasonable state because section 42(2)(b) of the Residential Tenancies Act 1987 (WA) says that you do.

Human or “Individual” Rights Human rights are a special type of rights. Claims that people make against the State Justified by moral principles or the law.

What are human rights? A right that you can enforce against the State and only the State. Only the State owes you legal human rights obligations Grounded in idea that the State should not be allowed to do whatever it likes to its citizens. People have certain legal rights that they can claim against the State.

No punishment without law

Rights protection in Australia Some countries have laws which set out people’s rights. Human Rights Act (1998) UK Constitutional Bill of Rights – the US Australia does not have a federal human rights act or a Bill of Rights

Rights in the Constitution? The Constitution contains four express protections of individual rights: A right to compensation if the Commonwealth compulsorily acquires your property A right to be tried by a jury if you are accused of committing a Commonwealth offence Freedom of religion Cth can’t establish a state religion can’t make people observe a religion can’t prohibit people freely expressing their religion. Freedom from discrimination by the States based on you living in another State.

No rights? The Constitution does not confer on you any express human rights You don’t have an express right to vote, you don’t have an express right to free speech, you don’t have an express right to life.

Implied rights The High Court has implied certain rights into the Constitution. Because the Constitution says X, there must be an implied right to Y. Implied freedom of political communication Voting rights

Implied right to vote? Sections 7 and 24 of the Constitution say that Parliament must be “directly chosen by the people”. This guarantees a representative system of government. Voting in elections lies at the very heart of a representative democracy and means there must be “universal suffrage” Anything less than this cannot be described as directly chosen by the people.

Voting rights Roach v Electoral Commissioner (2007) CLR In 2006 the Cth amended the Commonwealth Electoral Act 1918 The amendments prevented all prisoners convicted of an offence from voting. Vickie Roach was serving a 6 year sentence. Challenged the law on the ground that it was inconsistent with representative democracy and was unconstitutional

The High Court held that the blanket ban on prisoner voting was unconstitutional. That Parliament is “directly chosen by the people” enshrines the right to vote. This right can only be limited for a substantial reason The reason was that people who had committed serious offences should be excluded from participating in the community. They have rejected their civic responsibility so their civic rights can be suspended. A law that restricts a serious offender's voting rights is consistent with representative democracy.

Not all prisoners have committed serious offences: traffic infringements; minor assaults; unpaid fines. Their conduct is not so bad as to say that they have lost their connection with “the people”. High Court held that a law that banned prisoners form voting who were serving more than 3 years was valid. It was the blanket ban that offended the principle that Parliament is directly chosen by the people.

The Implied Freedom of Political Communication The Commonwealth and State Parliaments are unable to create laws which prohibit political communication. Political communication “… refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about”’ (Theophanous) The right has been implied – it is not an express right. Compare with Article 1 of the US Constitution – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

How is the freedom of political communication implied in the Constitution? Step 1: Constitution provides for a system of representative and responsible government Step 2: For our system of responsible and representative government to work, voters need free flowing political communication so as to enable them to make a free and informed choice at elections Step 3: Therefore, there is an implied freedom of political communication in the Constitution

Step 1: Constitution provides for a system of representative and responsible government Step 2: For our system of responsible and representative government to work, voters need free flowing political communication so as to enable them to make a free and informed choice at elections Step 3: Therefore, there is an implied freedom of political communication in the Constitution Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively – Court in Lange Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government - Court in Lange [T]he Constitution requires "the people" to be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government – Court in Lange Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative – Mason CJ in Australian Capital Television Sections 1, 7, 8, 13, 24, 25, 28 and 30 of the Constitution give effect to the purpose of self-government by providing for the fundamental features of representative government – Court in Lange See also sections 64 and 128.

The Implied Freedom of Political Communication The Commonwealth and State Parliaments are unable to create laws which unduly prohibit political communication. Issues and considerations Significant judicial and academic criticism It is a negative right and not a positive right The right is not absolute Applies to State laws Some recent High Court cases: Brown v Tasmania 2017 Clubb v Edwards; Preston v Avery 2019 Comcare v Banerji 2019