Australian Constitution
Rights
The Constitution has no Bill of Rights, such as that found in the United States Constitution, which prevents a legislature from passing laws that infringe basic human rights, such as freedom of speech. Some express protections, however, are given by the Constitution against legislative or executive action by the Commonwealth, but not by the States. Examples are section 51(xxxi) (acquisition of property must be ‘on just terms’), section 80 (trial by jury is required in relation to some criminal offences), and section 116 (a right exists to exercise any religion).
Section 117 prohibits the Parliament of a State from discriminating against non-residents of that State. It provides, in effect, that a resident in, say, Victoria shall not be subject to any discrimination or disability in, say, Queensland unless the person would also be subject to that disability or discrimination as a resident of Queensland. (The question whether section 117 limits the law-making power of the Commonwealth Parliament has not yet been conclusively resolved by the High Court.)
The High Court has also recognised some implied restrictions on legislative power derived from the fundamental system of government established by the Constitution. For example, because of the separation of powers effected by the Constitution, only a court may exercise the judicial power of the Commonwealth. Accordingly, a law of the Commonwealth Parliament cannot provide for criminal conviction by anybody other than a court.
Another example of how implications from the terms or structure of the Constitution can restrict legislative power was provided in 1992 when the High Court declared invalid a Commonwealth law which attempted to restrict the broadcasting of political advertising. The Court decided that the restrictions imposed by that law were inconsistent with a necessary aspect of representative government entrenched by the Constitution – specifically, the right to freedom of communication on political matters.