Express rights

There are five rights expressly (explicitly) outlined in the Constitution. However, they are worded not as rights but as limits on Commonwealth power. The founding fathers, at the time of drafting the Constitution, were concerned with protecting rights of the states. Therefore, four of these rights address state concerns.

Section 51 (xxxi)

“The Parliament shall, subject to this Constitution, have power to make laws… with respect to… The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws”1

This gives people the right to be fairly compensated when the Commonwealth forcibly acquires their property.

Section 80

“The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.”2

This gives people the right to trial by jury for any Commonwealth indictable (serious) offence.

Section 92

“On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.”3

This allows for freedom of trade between states. The High Court has interpreted this section to extend to freedom of movement between states for people.

Section 116

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”4

This section guarantees freedom of religion. People are free from religion, in that the Commonwealth cannot establish a state religion. It also guarantees freedom for religion, as people are free to exercise their own religion.

Section 117

“A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the queen resident in such other State.”5

This guarantees freedom from discrimination based on one’s state of residence.

See also:

Constitutional protection of rights

Structural protections

Implied rights

  1. Commonwealth of Australia Constitution Act 1900 (UK), 

  2. ibid.  

  3. ibid.  

  4. ibid.  

  5. ibid.