The document discusses approaches to protecting rights in Australia under the Commonwealth Constitution. It outlines that rights are protected through structural protections, express rights, and implied rights. Structural protections include representative government, separation of powers, and the referendum process. There are five express rights, including freedom of religion. One implied right that has been found is the implied right to political communication. Rights can be enforced if the High Court rules legislation unconstitutional for infringing express or implied rights. In summary, the Constitution protects rights through its structure and a few express and implied rights, though some argue more extensive protections could be provided.

1. Protection of
Rights
U302B
SAC ~Tuesday 12th May

2. Key Knowledge
 the means by which the Commonwealth Constitution
protects rights, including structural protection, express
rights, and implied rights
 the significance of one High Court case relating to the
constitutional protection of rights in Australia
 Australia’s constitutional approach to the protection of
rights and the approach adopted in one of the following
countries: Canada, New Zealand, South Africa, or the
United States of America.

3. Key Skills
 define key legal terminology and use it appropriately
 discuss, interpret and analyse legal information and data
 apply legal principles to relevant cases and issues
 explain the role of the Commonwealth Constitution with respect to law-
making powers and the protection of rights
 identify the types of law-making powers
 explain the methods and processes of changing constitutional power
 analyse the impact of referendums, High Court interpretation of the
Constitution, and the referral of powers on the division of law-making
powers

4. an interest recognised and
protected by law, respect
for which is duty, and
disregard for which is
wrong.

5. Approaches taken to protect rights
 In Australia, very few rights are protected in our
Constitution.
 Democratically elected institutions and the common law
were thought to provide adequate protection.
 Our rights are protected mainly by legislation and
common law.

6. Rights Protected by the Constitution
 Rights protected by structural protection –
the structure and text of the Constitution
provides some rights, such as the limited
right to vote
 Express rights in the Commonwealth
Constitution – there are five express rights in
the Constitution, including the right to
freedom of religion
 Implied rights in the Commonwealth
Constitution – rights may be implied in the
Constitution or have been implied in a High
Court decision (such as the right to freedom
of political communication).

7. Structural protection
 The Commonwealth Constitution provides indirect protection of
the rights of Australians by preventing the abuse of power.
 This is known as the structural protection of rights.
 The Constitution establishes:
 Representative government
 Responsible government
 Separation of powers
 Referendum procedure
 Bicameral parliament
 A federal system

8. Structural Protection –
Representative Government
 The Constitution requires that both houses
of the Commonwealth parliament be
elected by the people.
 This protects the right of the people to be
governed by the people of their choosing.
 A government cannot continue without
the support of the people.

9. Structural Protection –
Responsible Government
 The power of government is exercised by an elected
person who is responsible to parliament and therefore
the people.
 The executive needs the support of the lower house to
govern.
 Ministers must therefore explain their actions to the
parliament when requested.
 If the government loses the support of the lower
house it must resign.
 This protects against the government abusing its
power

10. Structural Protection –
Separation of Powers
 The Constitution establishes three
separate powers (legislative, executive
and judicial) and provides that each of
these powers is held by a separate body.
 This ensures that no one body has control
over the functions of the legal system.
 It provides checks and balances on the
power of the Commonwealth Parliament
and ensures that no one body can make
law, administer law and rule on its
legality.

11. Structural Protection –
Referendum Procedure
 S128 sets out the procedure for changing the Constitution.
 The requirement of a double majority ensures the
Commonwealth Parliament cannot change the
Constitution without the people’s consent.
 This ensures that the parliament (or government) cannot
grab more power for itself by simply changing the
Constitution as it please.

12. Structural Protection –
Bicameral Parliament
 The Constitution establishes a bicameral parliament, the
House of Representatives and the Senate.
 The government controls the majority of the lower house,
but usually does not control the upper house.
 This ensures that laws must undergo a process of review in
the upper house and ensures that laws are not rushed or
seen as too radical.
 If the government does control both houses, the upper
house can be seen as a ‘rubber stamp’.

13. Structural Protection –
Federal System
 The Constitution establishes a federal system consisting of
a Commonwealth Parliament and six state parliaments.
 The Constitution sets out the division of power between
the states and the Commonwealth
 This ensures that the various parliaments are not able to
make laws outside of their jurisdiction.

14. Express Rights
 The Commonwealth Constitution clearly
sets out five express rights.
 These express rights are entrenched in
the Constitution.
 They can only be removed or amended
by changing the Constitution using the
referendum procedure established by
S128.

15. Express Rights - Freedom of
religion
 Freedom of religion is an express right
 The Commonwealth Constitution
provides that the Commonwealth
Parliament cannot pass a law which:
 establishes a state religion (that is,
declares a particular religion as the
official national religion)
 imposes any religious observance
 prohibits the free exercise of any
religion (that is, prevents people from
practising their religion)
 requires a religious test as a
requirement for holding any
Commonwealth office.

16. Express Rights - Free interstate
trade and commerce
 Under S92 of the Constitution, interstate
trade and commerce shall be free.
 This right prevents parliament from
treating interstate trade differently from
trade within a state.
 It provides freedom of movement
between states, without burden or
hindrance.
 For example, it restricts the imposition
of taxes on goods moving from one state
to another.

17. Express Rights - Discrimination on
the basis of state
 Under S117 of the Constitution, it is unlawful for state and
Commonwealth governments to discriminate against
someone on the basis of the state in which that person
resides.

18. Express Rights - Acquisition of
property on just terms
 Under S51(xxxi) the Commonwealth must
provide just terms when acquiring property
(that is, the Commonwealth must pay fair
compensation for property that is
compulsorily acquired).
 An independent party will decide on what is
just terms, this may not be suitable to the
seller who is forced to sell his or her property.
 The Commonwealth is only able to acquire
property for a purpose or area for which it
has the power to make laws, for example,
airports and national parks.
https://www.youtube.com/watch?v=VUMvO
bLKaaw&noredirect=1

19. Express Rights - Trial by jury for
indictable Commonwealth
offences
 Under S80 of the Constitution, there must be a jury trial
for indictable Commonwealth offences.
 However, this is a very limited right as most indictable
offences are crimes under state law, and S80 only applies
to Commonwealth offences.

20. Implied Rights
 Rights are implied in the
Constitution by the structure and
text of the Constitution.
 The majority of the High Court has
found that the Constitution contains
one implied right, which is the
implied right to freedom of political
communication.
 This right is not a general right to
free speech, but only a right to free
communication on matters relating
to political issues.

21. Enforcement of rights
 Both express and implied rights are fully enforceable by the High
Court.
 If an act infringes an express or implied right, the High Court can
declare the law unconstitutional and invalid.
 High Court interpretations cannot be overruled by parliament.
 If the High Court declares legislation invalid, the parliament may:
 Amend legislation so that it complies with the Constitution
 Try and remove the right by amending the Constitution via S128
 This is a complaints-based approach to the enforcement of rights
because people or groups who believe their rights have been
infringed must bring a case to the High Court before it can declare a
law unconstitutional.

22. Evaluation of the Constitution as
a means of protecting rights
 The Commonwealth Constitution protects the rights of
Australians to a large extent.
 The Commonwealth Constitution protects rights largely
via structural protection with some express and implied
rights.
 This approach has been largely effective as evidenced by
Australia’s record as a free and democratic society.

23. Structural Protection
 Structural protection is very effective at protecting rights
via mechanisms such as representative government,
responsible government and the separation of powers.
 HOWEVER, as structural protection is an indirect
protection of rights, it is unclear exactly which rights are
protected by the Constitution.This was seen in the Roach
case where the High Court found only a limited implied
right to vote rather than a full implied right to vote.

24. Express Rights
 The Constitution includes five express rights which can
only be removed or amended by referendum.
 The express rights are strongly protected as they cannot
be changed by parliament without the people’s consent.
 However, as there are only five express rights this provides
limited protection. It could be argued that more
entrenched rights or a bill of rights would provide greater
protection.

25. Implied Rights
 The High Court has established one implied right in the
Constitution, that being the right to freedom of political
communication.
 However, again, there is only one implied right, providing
limited protection and the High Court has been reluctant
to imply further rights.

26. Evaluation of the Constitution as
a means of protecting rights
 Fully enforceable
 Both express and implied rights are fully enforceable by the
courts, meaning any legislation that infringes these rights
can be ruled unconstitutional.
 Conclusion
 While there are only a small number of express and implied
rights protected in the Constitution, the strong structural
protections provide effective protection of the rights of
Australians.

27. One High Court case relating to the
Constitutional protection of rights
 One High Court case relating to the Constitutional
protection of rights is the Roach case.
 Roach v. Electoral Commissioner (2007)

28. Roach v. Electoral Commissioner (2007)

29. Or
Protection of Rights ... Who is better ????

30. Comparison
AUS v. US

31. Comparison Australia & US

32. Comparison Australia & US

33. End of U302B

34. References
 Beazer M, Humphreys M, Flippin L, 2014, Justice &
Outcomes 13e, Oxford
 MacdonaldT, 2014, Revision Booklet,
http://www.tmaclegal.com/revision-booklet.html
 Images from various sites