U2 AOS3 - The Constitution and Implied Rights

Question 1

Implied rights

Answer 1

• Implied rights are rights that are not explicitly stated in the wording of the Constitution, but are considered or inferred to exist through interpretation of the High Court
• Implied rights are also fully enforceable. This means a person or organisation that is negatively affected by legislation breaching the implied right can challenge the laws of validity in the High Court, so long as they have standing to do so
• For example, although the Constitution does not explicitly state that Australians have the right to freedom of political communication, the High Court has decided that this freedom is implied and protected

Question 2

Freedom of political communication

Answer 2

• Empowers Australians to freely discuss and debate political issues, subject to certain restrictions
• Sections 7 and 24 include the phrase that the houses of Commonwealth Parliament be ‘directly chosen by the people’
• To make an informed decision at an election, a citizen must be able to obtain information about political views of their candidates

Question 3

Strengths of implied rights

Answer 3

• They are fully protected in the High Court
• They are flexible as they can be changed by interpretation
• More rights can be inferred without a referendum
• They can be updated to improve their progressiveness
• Judges are not members of Parliament and are therefore not biased or political

Question 4

Weaknesses of implied rights

Answer 4

• They require a case in the High Court, which can be expensive and time consuming
• The applicant needs to have standing
• There is only one implied right
• They are not necessarily representative of people, as judges are not democratically elected.
• High Court judges can overturn previous precedent to do with implied rights, as they are not bound by these precedents