In common law western legal systems, there is an expectation that the protections of fundamental rights of citizens is to be broad, effective and enforceable. This expectation probably comes from the United States Constitution and representations of it in popular culture. However, in the Australian Constitution as in many of its counterparts in the Western system such as the United Kingdom Constitution which is not actually codified the protection of rights is very limited.
The United States Constitution confidently and comprehensively asserts a series of rights such as the right to vote, the right to trial by jury, the right against self-incrimination, the right to ‘life liberty and the pursuit of happiness’ and the right to bear arms amongst others. In the Australian Constitution there are only three express rights which are the right to vote, the right that the state shall not legislation to institute a particular religion and the right to freedom from discrimination by the citizens of another state in the Australian Federal system. In comparison with the American protection of constitutional rights, this is a relatively weak entrenchment of the notion of rights in the Australian legal system.
This paucity of rights protection has lead to the need for courts in Australia to develop jurisprudential justifications for the expansion of the scope of rights protected by the Australian Constitution through the doctrine of implied rights. This has been held to exist in Australia Constitutional law as a consequence of the functioning of the judiciary and the implementation of the rule of law under Chapter III of the Constitution. Some of the rights which have been held to exist include the right not to be subject to retrospective legislation as in the case of Polyukovich v R. Some judges have also discussed the need for an implied right of legal equality as in the matter of Leeth v Commonwealth and the Stolen Generation Case of 1997. The right to a fair trial has also been the subject of judicial debate as in the case of Dietrich v The Queen (1992). Nevertheless, despite some attempts to expand the scope of rights protected under the Australian Constitution, this scope at present remains limited.