Constitutional Rights in Australia Versus the United States

Despite the efforts of the current president of the United States to enhance state control through executive orders at the expense of fundamental civil liberties, the nation’s constitution explicitly guarantees wide range of individual rights in relation to the government.

This is in stark contrast to the Australian Constitution which – despite what some people, including ‘sovereign citizens’, may claim– explicitly protects just five rights, with an additional right being implied into the document by the High Court of Australia.

Here’s a comparison of the nationwide individual protections of the US versus Australia.

Constitutional rights in the United States

It is commonly known that the Constitution of the United States of America begins with the words’ “We the people of the United States” before emphasising the importance of individual rights in the face of the dangers of government control.

The first ten amendments are broadly known as the Bill of Rights, and explicitly guarantee a range of rights which can only be curtailed by Congress through legislation or the President by way of executive order where they do not undermine the substance of those fundamental protections

The rights guaranteed by the first ten amendments are:

Subsequent amendments to the US Constitution include a prohibition against slavery (thirteenth amendment), guarantee of citizenship to all persons born or naturalised in the United States (fourteenth amendment), right to vote regardless of race, colour or previous imprisonment (fifteenth amendment) and right to vote regardless of gender (nineteenth amendment).

Commonwealth Constitutional rights in Australia

In stark contrast to the US, the Australian Constitution focuses on the rights and responsibilities of the Federal government in relation to those of the states and territories, rather than individual rights in the face of government control.

The document explicitly protects just five rights, which are:

The High Court of Australia found in 1992 that a limited freedom of political communication is implied into the Constitution.

The Court determined that this freedom is necessary to facilitate a representative democracy, as only by having the freedom can a citizen:

“[C]ommunicate his or her views… criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives”. 

Adding that, “Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives.”

The Court ruled in 1997 that freedom to express political views could be curtailed through legislation enacted for a legitimate purpose where it is:

• Compatible with the maintenance of the representative and responsible government mandated by the Constitution, and
• Reasonably appropriate and adapted to the fulfilment of a legitimate purpose.

In addition to the failure of the Australian Constitution to protect many fundamental rights, the High Court has routinely interpreted the document as enabling governments to enact legislation that impinges on protected rights where it has found a strong public interest to do so – whether on national security grounds or otherwise.

Notable exceptions to constitutionally protected rights in Australia include a general freedom of speech, freedom of the press, freedom of assembly (eg the right to protest), freedom to gather (eg right to associate), due process, double-jeopardy and self-incrimination, and prohibitions against cruel and inhumane punishment, and unreasonable searches and seizures.

Shoot first and ask questions later

The absence of a constitutionally protected right to probable cause has enabled governments across the nation whereby police and other law enforcement agencies are empowered to arrest and charge individuals based upon very little evidence (on a ‘reasonable suspicion’), rather than have to gather a significant amount of evidence before depriving persons of their liberty: a ‘shoot first and ask questions later approach’, while legislatures have been allowed to pass increasingly onerous bail laws, essentially subverting the presumption of innocence.

Calls for Federal Bill of Rights

The situation has led to calls over many years for a national Bill or Charter of Rights – but while these calls have been entertained by past governments, they have never been acted upon in any meaningful capacity.

So for the foreseeable future, Australians are at the mercy of successive federal, state and territory governments being empowered to enact legislation that deprives us of basic civil liberties in favour of state control- a situation which was perhaps been no more evident than during government responses to the perceived terrorism threat from 2001 to 2018 and, more recently, the heavy-handed enforcement of ‘public health orders’, compulsory lockdowns and vaccine mandates in response to COVID-19.