Aos 2b

Question 1

Structural Protections definition

Answer 1

Structural preventions come from the structure and text of the constitution which provides mechanisms for the indirect protection of the rights of Australians in their dealings with the commonwealth parliament by preventing abuse of power.

Question 2

Separation of powers protecting rights definition

Answer 2

The separation of powers ensures that no one body has absolute power and provides a system of checks and balances, by establishing three independent arms of power. The legislative arm, to make laws, the executive arm, to administer laws, and the judicial arm to enforce laws and settle disputes.
This protects rights by preventing all power from being held by one body and provides checks and balances. The independent High Court has the power to declare unconstitutional legislation invalid, if a case is brought to them, thus protecting against abuse of power.

Question 3

Responsible Government protects rights definition

Answer 3

Under the principle of responsible government, the executive is answerable and accountable to the parliament and therefore the people. They are held answerable through question time and other parliamentary committees.
This therefore protects the rights of the people to be governed by a government that has the confidence of the elected lower house

Question 4

Representative government protects rights definition

Answer 4

The principle of representative government refers to a government that reflects the views of society and the majority of the people. This is established under s7 and s24 of the constitution which directs that parliament must be chosen by the people

Question 5

Express Rights definition

Answer 5

express rights are rights which are entrenched in the constitution. the process of changing these is different to normal legislation, and is only by referendum under s128 in australia
There are 5 express rights - s51(xxxi), s80, s92, s116 and s117

Question 6

Implied rights definition

Answer 6

Implied rights are not explicitly stated in the constitution but have been read into it by its structure and text, and are still fully enforceable by the high court and can only be changed the same way as express rights
there is only one implied right which is freedom of political communication, which was found in the ACTV case 1991

Question 7

Structural protections evaluation

Answer 7

Strengths - entrenched and cannot be changed by parliament, fully enforceable by the courts
weaknesses - there are only 5, they are limited in scope, difficult to locate and not much individual protection

Question 8

Actv case

Answer 8

• political broadcasts and political disclosures act 1991, banning most political advertising, preventing groups with more money from getting an upper hand over minor groups
• actv claimed it was in breach of representative government, s7 and s24, where the people needed to be informed to elect government and the government needed to be able to communicate to the people, and therefore there was an implied right to freedom of political communication
• The court sided with actv and declared the legislation invalid, creating the new implied right of freedom of political communication.
• as a result the first implied right was found, which was political communication, and is now read into the constitution and fully enforceable in futre

Question 9

High court role in protecting rights evaluation

Answer 9

• all rights are fully enforceable by the high court
• however it you must have standing to bring a case to the high court, and a case must be brought before it in order to interpret. It is also expensive, time consuming and risky
• high court can declare legislation invalid if it infringes rights
• however, it cannot award damages
• high court has no vested interest in the cases
• however, it is not elected, and has a lot of power for a non-democratic body

Question 10

comparison between sa and aus

Answer 10

intro
multitude of similarities and differences, both are protected by structural, express and implied rights

both have rights entrenched in constitution, which can’t be changed by a regular legislation process
however, sa has a bill of rights which is more extensive and can only be changed by… whereas in aus there are only 5 which are scattered and can be changed by s128…

both have separation of powers, three arms and the constitutional court acts as a check and balance
rights are however expressly guaranteed in the sa bill of rights, eg s16(1) free speech and s19(2) right to vote, whereas ambiguity arises in aus as to whether there are more, and the extent to which they cover

both constitutional courts have the ability to find implied rights by interpeting structure and text
sa hasnt got implied rights because of the extensive list and scope of their listed rights, whereas aus has one (.,,), because the listed rights aren’t as extensive