(B) 3.2.8 The means by which the Constitution protects rights

Question 1

The 3 means by which the Consitution protects rights:

Answer 1

Express Rights
Structural Protection of Rights
Implied Rights

Question 2

How many Express rights:

Answer 2

5 in the Consitution

Question 3

The 5 Express rights:

Answer 3

• S.116 Freedom of Religion
• S.92 Interstate Trade and Commerce
• S.117 Discrimination on the basis of state residence
• S.51 (xxxi) Just terms when acquiring property
• S.80 Jury Trial

Question 4

Express rights:

Answer 4

Express rights are rights specifically entrenched in the Constitution; they are specifically listed in the Constitution.

Question 5

S.116:

Answer 5

States that the Commonwealth can make no law that:

• Prohibits the free exercise of Religion
• Imposes religious observance
• Establishes any religion
• To require a religious test as a qualification for a position in Commonwealth parliament

Question 6

Strengths of Express rights:

Answer 6

• The 5 express rights are entrenched in the Constitution, and they can only be removed or amended by a referendum
• Express rights are fully enforceable by the High Court. If an Act of Parliament infringes an express right, the High Court can declare the legislation invalid and unconstitutional

Question 7

Weaknesses of Express Rights:

Answer 7

• As there are only 5 Express rights, this provides limited protection
• It could be argued more entrenched rights or a Bill of Rights would provide greater protection
• The protection of Express rights by the High Court is a complaints based approach to the protection of rights, which can be time consuming and expensive, as a case requires standing.

Question 8

Structural Protection:

Answer 8

Refers to the systems and mechanisms established by the Constitution, which indirectly protects rights. Structural protection of rights safeguards these rights by preventing the abuse of power.

Question 9

The structures of protection:

Answer 9

• Seperation of Powers
• Responsible Government
• Representative Government
• S.128
• Protection of rights through High Court interpretation

Question 10

High Court structure:

Answer 10

As an independent body, the High Court has the power to declare legislation ‘ultra vires,’ that it is outside its law–making power, thereby possibly protecting rights.

Question 11

Example of High Court protecting rights:

Answer 11

High Court protected our rights to responsible government in the Political Broadcasting Case 1992.

Question 12

High Court Case:

Answer 12

Political Broadcasting Case 1992

Question 13

Strengths of Structural Protection:

Answer 13

• Structural protections can only be removed via a successful referendum, which is difficult.
• Provide a check and balance on the possible abuse of power, thus protecting rights
• Structural protections can be enforced by the High Court.

Question 14

Weaknesses of Structural Protection:

Answer 14

• As structural protection is an indirect protection of rights, it is unclear exactly what rights are protected by the Constitution.
• The right to vote for all people aged 18 and over is not expressly guaranteed in the Constitution.

Question 15

Implied Rights:

Answer 15

Implied rights refer to when the High Court interprets the meaning of the words of the Constitution. They are not listed in the Constitution.

Question 16

Only … implied right:

Answer 16

One

Question 17

The implied right is:

Answer 17

Freedom of Political Communication

Question 18

High Court case that recognize freedom of political communication:

Answer 18

Australian Capital Television v The Commonwealth

Question 19

Strengths of implied rights:

Answer 19

• The High Court is able to interpret the Constitution as a whole and find implied rights even thought they are not explicitly stated in the Constitution.
• Implied rights reflect the capacity of the Constitution to meet the changing needs and values of our society.

Question 20

Weaknesses of implied rights:

Answer 20

• High Court has only found one implied right in the Constitution
• ‘Complaints-based approach’
• High Court has not found that a general right to free speech is implicitly protected by the Constitution, only in regard to matters described as ‘political communications’