Evaluation of the protection of rights of Australians by the Commonwealth Constitution

Question 1

4 strengths and weaknesses of Australia’s protection of rights

Answer 1

Difficulty of change advantage and negative

implied right advantage

very few rights disadvantage

Enforceability advantage

Limited scope disadvantage

New rights advantage

Minority disadvantage

Question 2

Difficulty of change advantage

Answer 2

Express rights cannot be changed unless through a referendum. This means that express rights can only change with the support of the community ensuring that the people want the change.

Question 3

difficulty of change disadvantage

Answer 3

Rights contained in a constitution are difficult to change due to the referendum process. Rights may lag behind when attitudes change and technology advances with time.

Question 4

implied right

Answer 4

The implied right of freedom of political communication has been found to be contained in the Constitution. This shows that rights can be declared and clarified by the High Court when needed to preserve justice.v

Question 5

very few rights

Answer 5

Very few rights are protected under the Constitution. Australia has far fewer rights expressed in the constitution when compared to other countries such as USA.

Question 6

enforceability

Answer 6

The express rights in the Constitution are enforceable through the High Court. Any section of legislation that is found to be outside the power of the parliament under the Constitution is immediately inoperable to the extent of the section that is found to be ultra vires (outside the power). This means that the commonwealth cannot pass legislation that conflicts with express rights.

Question 7

limited scope

Answer 7

The rights that are protected are limited in scope; for example, many rights only apply to the Commonwealth Parliament and not the state parliaments, and some rights are narrow, such as trial by jury. This means that of the few protected rights, many don’t apply to all of the people.

Question 8

new rights

Answer 8

Section 128 means that it is hard to remove the rights that are protected under the Constitution and new rights can be added by a successful referendum. This means that if the people demand a new right, a referendum can be held to add the right.

Question 9

minority

Answer 9

The needs of minority groups may not be heard by the government and may not be catered for. Because Australia only has 5 express rights there are a number of minority groups not catered for.