Rights
1901 Constitution with no national bill of rights
A federal common-law system under the 1901 Constitution, notable for having NO national bill of rights. Rights protection is structural rather than enumerated: the separation of judicial power under Chapter III, a handful of express guarantees, and implied freedoms the High Court has drawn from the text.
Key rules
- Jurisdiction — Commonwealth legislative power is enumerated in s. 51; residual power stays with the six states. Section 109 makes valid Commonwealth law prevail over inconsistent state law.
Governing law
- Commonwealth of Australia Constitution Act 1900 (Imp) (s. 51)
- Australian Human Rights Commission Act 1986
- Racial Discrimination Act 1975
- Human Rights Act 2019 (Qld) and Charter of Human Rights and Responsibilities Act 2006Vic
In practice
There is no constitutional bill of rights. The express guarantees are narrow — trial by jury for indictable Commonwealth offences (s. 80), just terms for acquisition of property (s. 51(xxxi)), freedom of religion (s. 116) and freedom from interstate discrimination (s. 117). Everything else is either an implied freedom, most importantly the implied freedom of political communication recognised in Lange v Australian Broadcasting Corporation, or ordinary statute. Because implied freedoms limit legislative power rather than confer personal rights, they cannot be sued on directly the way a charter right can. Only the ACT, Victoria and Queensland have human-rights statutes, so the protection available depends on which jurisdiction a person is in.