EXPRESS and IMPLIED RIGHTS in the Australian Constitution | AUSSIE LAW

hello everyone my name is renato costa this is zozillo and today we will generally talk about the express and implied rights in the australian constitution [Music] how many rights are there in the australian constitution does australia has a bill of rights do australians have any constitutionally protected rights at all these questions are often flying around and you may even come across people discussing about them so here's what we're going to do in this video i'm going to tell you some general premises about the protection of human rights in australia that's it this is everything you

need to know before entering into a discussion about the protection of human rights in australia so before you enter into heated arguments about it make sure that everyone in the discussion has watched this video and if occasionally you start discussing about the protection of human rights in australia you just say stop you come to this video and then you continue that's why i have a request for you even before we start make sure you like this video you subscribe to our channel and you hit the bell icon now that you've done that let me give

you some basic information about the express and implied rights in the australian constitution first thing that you need to know is that australia is a member of the united nations and that means that australia has also adhered to a number of international treaties and conventions that impose some obligations concerning human rights for example australia is a party to the seven core international treaties about human rights i've left the list of the covenants here but you can also check that each one of them by clicking on the link that is in description of this video to

the attorney general's website the thing is that when australia is signing treaties like this it is accepting this scrutiny of the international community so if australia fails to comply with the obligations imposed by these confidence facts conventions etc they are subjected to sanctions imposed by the international community and thus to make sure that australia is following the terms of these conventions about human rights the commonwealth has enacted the human rights parliamentary scrutiny act of 2011. this act created the parliamentary joint committee on human rights according to the act the committee exists to examine bills for

acts and legislative instruments that come before either house of parliament for compatibility with human rights and to report to both houses of parliament on that issue it also exists to examine acts for compatibility with human rights and to report to both houses of the parliament on that issue and to inquire into any matter relating to human rights which is referred to it by the attorney general and to report to both houses of parliament on that matter do you get that the idea is that before legislation is enacted before bill becomes an act of parliament it

will have been scrutinized by the parliament itself and joint committee in order to make sure that it is compatible with human rights this is a way to make sure that australia is committed to following the terms of the international human rights agreements that it is subjected to this means that the commonwealth should not be able to legislate contrarily to the human rights as they are expressed in the international treaties so this is a form of human rights protection in australia and it is wrong then to say that there is absolutely no protection of human rights

in australia the legal system in the parliamentary process is now designed to guarantee the observance of the international treaties on human rights that australia has signed now you may be asking wouldn't it just be easier to have a bill of rights just like in the united states this brings us to the second premise the framers decided not to include a list of human rights in the australian constitution look when the australian constitution was being drafted the us constitution and the bill of rights they already existed the framers knew about it but it was still their

option not to include the bill of rights in the australian constitution the dominant understanding in the drafting conventions was that instead of limiting the rich rights the number of rights that would be given to the australian people by putting them in a list inside the constitution and maybe having them be noted by the legislature or by their courts the framers instead trusted the system of responsible government they believe that popular accountability entrenched in the system of responsible government would be the best guarantee of human rights in australia instead of a list of rights in the

australian constitution we have a system of parliamentary democracy where the electives can scrutinize parliamentarians and make sure that their human rights are being protected look at what sir robert menzies the longest serving prime minister of australia once said the best guarantee of human rights in the future is to be found in a system of responsible governments when ministers sit in parliament can be questioned can give answers and the government may itself be turned out if parliament feels that it is doing things which violate the proper rights of individuals as justice dawson once put it those

responsible for drafting the constitution saw constitutional guarantees of freedom as exhibiting a distrust of the democratic process they preferred to place their trust in parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers do you remember that we talked about principle of responsible government make sure to watch that video as well so does this mean that australia has no bill of rights yes it does not have any bureau of rights but does that mean that we have no human rights protection in australia no it doesn't the principle of

responsible government acts as a limitation on parliament and the political system is constitutionally constrained by the scrutiny of the electors moving forward then the third premise that you should know is that australia has some express rights expressed limitations on the powers of parliament to legislate about certain things that constitute the protection of human rights in australia these are express rights or negative rights and freedoms that protect the people against the influence of parliament or at least limits parliament in the way they are going to legislate and there are usually five so-called express rights in the

australian constitution section 5131 the acquisition of property on just terms section 80 the trial by jury section 92 the free trade commission intercourse between states section 116 the freedom from discrimination based on religion and section 117 which relates to state-based discrimination so here's what we're going to do my next videos will talk about each one of these five so-called express rights in the australian constitution we will look at them in detail and you will understand a bit more why i call them freedoms negative rights or express rights if you want to join our community and

not miss any of these videos make sure you subscribe to our channel now let's go a bit further because if i said that there are some express rights that means that there are some implied rights as well right yes yes it does the high court of australia has interpreted the constitution in such a way that sometimes it's capable of fighting according to the texts and structure of the constitution certain implied rights do you remember that we talked about section 128 constitutional alteration well this is an example of what i said there in that video about

the informal constitutional change the idea of implied rights derives from the possibility of the constitution being changed informally the most famous of the implied brights is definitely the implied freedom of political communication we will have some videos coming up soon where we will discuss them in detail also the right to vote which is not expressed in the text of the constitution has also been found by the high court to be an implied right of the australian people we will of course have some other videos to talk about that too finally the last premise that you

need to consider when discussing about express and implied rights in australia is that some states have human rights charters that's right although we do not have a national bill of rights the state of victoria the act and queensland all have specific human rights acts it is still true that all of the states in the commonwealth has some specific acts about the protection of particular human rights like anti-discrimination acts but here i'm referring to actual human rights charters that are specifically aimed at respecting and protecting human rights in the states to be honest the charters are

not that different one from the other and all of them have an exhaustive list of human rights that ought to be protected they are more thin procedural so they still have a list of human rights but the protection itself follows much of the commonwealth's model in the idea and structure of the joint committee the idea is to guarantee that the legislature complies with human rights when enacting state legislation in that the courts also engaged with the idea of human rights when deciding cases we'll also have videos about the state charters and also about the discussions

of having a national bureau of rights so stay tuned let me tell you what justice dean affirmed in the case of street and queensland bar association from 1989 it is often said that the australian constitution contains no bill of rights statements to that effect while literally true are superficial and potentially misleading the constitution contains a significant number of express and implied guarantees of rights and immunities are you curious to know the details about these express and implied guarantees of rights and immunities leave a like to this video and subscribe so you don't miss my next

videos well this was an introduction to the basic information in the premises that you need before entering into a discussion about the protection of human rights in australia i hope you enjoyed it and i hope to see you again soon until then ciao