Laws1116 Lecture 10

Implicit Constitutional Rights

  • Consists of necessary (logical) implications required to achieve expressed outcomes, as well as implications based on structure
  • Necessary: s 73 implies a right to appeal to the High Court (Cockle)
  • Necessary: ss 7, 24 implicitly prohibit indirect elections (McKinlay)
  • Structural: Melbourne Corporations Principle

Ban on Bills of Attainder

  • Implied from separation of powers
  • Prohibits retrospective criminal laws, retrospective increase of punishments for past crimes
  • Would put the legislature in a judicial role, by allowing the to retrospectively convict people
  • Enshrined in 15 (1) of the ICCPR, but the Nuremberg exception (15 (2)) also applies (Polyukhovich)


Polyukhovich v Cth (1991)

  • Issue: Where the laws retrospectively criminalising acts taking place outside of Australia by non-Australian citizens a bill of attainder (or beyond the ambit of the external affairs power)?
  • Held: No, they were sufficiently general that they did not amount to a bill of attainder – the question of guilt was left in the hands of the judiciary. (And the ambit of the external affairs power was held to apply EVERYWHERE that wasn’t Australia)

Right to a Fair Trial

  • Implied by Chapter III of the Constitution
  • Courts determining dispute MUST ACT JUDICIALLY (Leeth)
  • Extends to the right to legal representation for serious criminal offenses (Dietrich)
  • Requirement only applies to Federal courts or State courts exercising Federal jurisdiction


Leeth v Cth (1992)

  • Issue: Was determining the non-parole period for Cth offenses on the same basis as the state court where the offense occurred unconstitutional? And if not, did considering the relevant law of the state amount to a non-judicial role, which would be unconstitutional?
  • Held: 4 judges held that there WAS an implied right to equality, however one of them joined the other 3 in declaring that right had not been violated in this particular instance. Using state defined parole periods was not held to be non-judicial.

Dietrich v R (1992)

  • Issue: Was leaving a criminal defendant unrepresented by a legal professional a violation of the implied right to a fair trial?
  • Held: Yes, for serious criminal offenses leaving a defendant unrepresented would result in a miscarriage of justice and violate the ‘fair’ aspect of the trial. As such the court must stay the trial until the accused can find representation.

Executive cannot deprive Life, Liberty, or Property

  • Also implied by separation of powers
  • Restricts powers that can be granted to the Governor-General for purposes of regulation (Communist Party)
  • Prevents Executive from being able to sentence people to punitive imprisonment (Lim)


Communist Party v Cth (1951)

  • Issue: Was an Act dissolving the communist party valid under the constitution?
  • Held: The Act was beyond the legislative power of parliament, and even if it had not been, violated the separation of powers by placing the declaration power in the hands of the Governor General

Lim v Minister for Immigration (1992)

  • Issue: Did granting the executive power to detain aliens for the purposes of determining whether they were to be deported or let into the country involve granting the executive the power to imprison without trial?
  • Held: The Executive have the power to hold aliens while determining their status, as that is not punitive and subsequently does not require the exercise of judicial power. Actual punitive detention, however, would be unconstitutional.

Freedom of Political Communication

  • Implied from ss 7, 24
  • Born in ACTV and Nationwide News cases
  • Extended to granted limited freedom of speech for political information purposes (Lange)
  • Could include actions that constituted ‘political communication’ (Levy)
  • Extends to state law as well as Federal (ACTV, Stephens)
  • Content (the ideas communicated) restrictions are much more difficult to justify than Mode (method of communication) restrictions – it’s the message, not the medium that is protected (ACTV)
  • Both the object of the communication and the manner of communication much be consistent with the representative principles (Coleman)
  • NOT ABSOLUTE - Involves the identification of restrictions of freedom of political communication, AND the demonstration that those restrictions are not proportional and/or appropriate and adapted.
  • Does NOT protect commercial communication
  • ALPA held that limiting market for legal services did NOT limit representative/responsible government


Nationwide News v Wills (1992)

  • Issue: Was a law making ‘bringing the Industrial Relations Commission into disrepute’ constitutional?
  • Held: This portion of the Act was not covered under the arbitration and conciliation power (51 (xxxv)), and even if it had been, it violated the implied right to freedom of political communication by limiting discourse on government/political considerations

ACTV v Cth (1992)

  • Issue: Did a complete ban on political advertisements via broadcast media during election period limit free political communication?
  • Held: Yes, representative government required the candidates to be free to make their views and opinions known to the voters – it constituted an unreasonable restriction of the freedom of political communication.

Lange v ABC (1997)

  • Issue: Did the freedom of political speech extend to covering defamatory material made available in the discussion of government or political matters?
  • Held: Yes, it did, but the protection was not absolute. It also discussed how any limitations via statute of this particular defamation defence would be unconstitutional.
  • Observations: Test consisted of requiring a wide audience, relating to a government/political matter, reasonable grounds for believing it to be true (steps taken to verify, etc.) and no malice – otherwise defence fails.

Levy v Victoria (1997)

  • Issue: Were actions capable of being considered political speech, and if so did illegally entering the duck hunting area to protest duck hunting fall under the ambit of political speech?
  • Held: Yes, actions *COULD* be communication, but the regulations were appropriate and adapted to protecting the public, and as such overrode any right to freedom of political communication.

Coleman v Power (2004)

  • Issue: While distributing pamphlets protesting police corruption, Coleman was charged with using ‘insulting words’ under the Vagrancy Act and assaulting/resisting arrest
  • Held: The Vagrancy Act charges violated the freedom of political communication, as ‘insulting’ is not appropriate or adapted – read down to only applying to words provoking unlawful physical retaliation rather than mere insults, as the purpose/goal was to prevent physical altercations. The assault/resisting arrest charges were retained, however.

Implied Freedom of Political Association

  • ACTV obiter – representative government requires the right to association for political purposes
  • Probably protects political parties, trade unions, etc. from being disbanded and/or targeted by statutes.