This section contains the rights all Australians have protected by the Constitution. Constitutional rights are rights that are fundamental to the Australian constitutional system and are stronger than legislative rights, that is to say legislation cannot be inconsistent with Constitutional rights or such legislation is likely to be challenged and struck down by the High Court. For example, the government was able to discriminate against indigenous peoples on the basis of race in amending the Native Title Act because the rights provided by the Racial Discrimination Act are legislative and parliament can override such rights at its pleasure.
Section 41 empowers any adult person who has the right to vote in state elections to vote in Federal elections. In 1983, the High Court held in R v Pearson that this section only entitles those who acquired the right to vote at the time of the enactment of the Commonwealth Franchise Act 1902. Thus, one would have to be 124 years old to have the benefit of this provision.
Section 51 (xxxi) provides that the Commonwealth can only acquire property on just terms.
Section 80 protects that a trial on indictment of any offence against any law of the Commonwealth shall be by jury. Many constitutional lawyers regard this section as 'worthless' in practice because the High Court has severely neutralised its operation. A jury trial may only be provided in circumstances where the Commonwealth determines that the trial is on indictment.
Section 116 denies the Commonwealth parliament power to make laws for establishing any religion, impose any religious observance or prohibit the free exercise of any religion or for the Commonwealth to require a religious test for public office.
Section 117 protects residents of one state from discrimination on the basis of residence by another state.
Section 75 (v) provides the right to seek review of government decisions in the High Court in relation to the remedies of a writ of mandamus or prohibition or an injunction.
Implied rights: There are also a number of implied rights in the Constitution. There is a freedom of political communication, a right to discuss issues that relate to the Australian government. Another implied right prevents the Commonwealth from retrospectively determining criminal offences.
INDIGENOUS PEOPLES AND THE AUSTRALIAN CONSTITUTION
Indigenous peoples have been unsuccessful in the High Court in relation to rights violations. Indigenous peoples raised section 116 of the Constitution in Kruger v Commonwealth (the Stolen Generations case). In this case the plaintiffs argued that the Aboriginal Ordinance 1918 (NT) that ordered the removal of Aboriginal children from their families was invalid on a number of grounds. Such grounds included that it prevented the free exercise of Aboriginal religion, infringed an implied freedom of movement, due process and equality before the law. Kruger discussed the race power of the Constitution: s 51 (xxvi).
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: The people of any race, for whom it is deemed necessary to make special laws.
In this case Justice Gaudron found that the races power may only authorize laws for the benefit of the people of a race, Justices Gummow and Hayne found that the race power may permit legislation that is detrimental as well as beneficial.
In Kartinyeri v Commonwealth (the Hindmarsh Island Bridge case) the races power was again considered. This case dealt with the ongoing controversy over the building of a bridge linking Hindmarsh Island to the mainland South Australia. The plaintiffs in this case argued that the section meant that the power to make laws could only be used for the benefit of a race. One of the arguments supporting this claim was that the 1967 referendum extended the Commonwealths power to make laws relating to indigenous peoples and therefore such Commonwealth power could only be for the benefit of Aboriginal people. The following exchange took place between Justice Kirby and the Commonwealth Solicitor-General:
Justice Kriby: Is it the Commonwealths submission that it is entirely and exclusively for the parliament to determine the matter upon which special laws are deemed necessary or … there is a justiciable question for the court? I mean, it seems unthinkable that a law such as a Nazi race laws could be enacted under the race power and that this court could do nothing about it.
Mr Gavan Griffith QC: Your Honour, if there was a reason why they could do something about it, a Nazi law, it would be for a reason external to the races power.
What this exchange illustrated to aboriginal people is that the Commonwealth of Australia was prepared to argue that it is constitutional to enact Nazi style laws against Aboriginal peoples. It is true from these experiences Aboriginal people have refocused on engaging the legislature. However the experience of Commonwealth and State legislatures, is that Parliament is not the best protector of indigenous rights.
Australian states and territories
Australia is a Federal system. This means that there does exist legislation in the various states and territories that provide human rights protection for Aboriginal and Torres Strait Islander peoples. The Australian Capital Territory is the only territory with a Bill of Rights in Australia. No states have a Bill of Rights despite numerous attempts and inquiries in most states. The ACT Bill of Rights is referred to as the Human Rights Act 2004 (ACT).
Conclusion
This paper has provided a brief overview of rights protection internationally and domestically. This is intended to provide a backdrop for discussion about the relevance of the recognition of the rights of Aboriginal and Torres Strait Islanders to reconciliation. It is clear that human rights protection in Australia is limited. Indigenous Australians, for example experienced the consequences of ineffective protection of basic rights when the Commonwealth suspended the operation of the Racial Discrimination Act 1975 (Cth) to facilitate its amendment of the Native Title Act 1993(Cth). The international system, in particular the CERD complaint mechanism enabled indigenous Australians to express its concerns, consistent with international law about Australia's actions. While the actual CERD decision invited objections as to the incursion of state sovereignty, the existence of an international human rights system was valuable for indigenous peoples in a number of ways.
Firstly, it drew international attention to the Commonwealths actions. This is always important because of the ambivalence and hostility toward Indigenous peoples issues in Australia. It confirmed that the government's actions in suspending the RDA and the failure to consult with Indigenous peoples were a breach of Australia's obligations under international law. That lack of consultation was again reflected in the decision to abolish the Aboriginal and Torres Strait Islander peoples.
Secondly it illustrated the paucity of protections for indigenous peoples in Australia. While almost all liberal democracies including the UK now recognise that parliamentary sovereignty must be legitimately tempered by legislated or constitutional bills of rights, the Australian system still maintains an archaic faith in parliament as the best protector of human rights.
The experience of Aboriginal and Torres Strait Islanders in Australia refutes that proposition and indigenous Australia remains the perennial footnote to Australia's claim that it has an excellent human rights record. This is why the recognition of the rights of Aboriginal and Torres Strait Islanders continues to be an integral part of the way forward for reconciliation in Australia.
