Constitutional Protection of Human Rights

Learning Intention Success Criteria Evaluate the effectiveness of the Commonwealth Constitution in protecting human rights Success Criteria Explain the means by which the Commonwealth Constitution protects rights. Discuss the significance of one High Court case relating to the constitutional protection of rights in Australia. Evaluate the means by which rights of Australians are protected by the Commonwealth Constitution, and the extent of this protections. Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Constitutional Protection of Human Rights Structural Protection System of structures (checks and balances) designed to ensure good government. Express Rights Rights clearly stated (entrenched) in the Constitution (5 exist) Implied Rights Rights the High Court has considered may be implied by the Constitution. Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Structural Protection (Checks and Balances) Bicameral parliament With a Senate that acts as a house of review for the House of Representatives. Separation of powers Ensures no one person holds the power to make (legislative), enforce (executive) and adjudicate a breach (judicial) of the law. Representative government Designed to ensure members of parliament are accountable to the electorate, and should represent the values of the voters, the foundation of democracy. Responsible government Requires that members of the executive government (PM and ministers) be drawn from and answerable to the parliament. The High Court Guardian of the Constitution in Australia, ensuring that state and Commonwealth Government abide by its terms. The writers of the Constitution did not have the same understanding of human rights as we do. In the late 1890s the writers were preoccupied with ensuring a good system of government in Australia and preventing the new Commonwealth Government from interfering with the rights of the states. Little thought was given to proteting the rights of individuals. The writers shared a belief that the best way to protect individuals rights was to ensure the pace, order and good government of Australia. They created a system of structures (checks and balances) that were designed to ensure good government. The checks and balances were designed to prevent Governmental power being concentrated in the hands of a small umber of peope who might then abuse it. Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Separation of Powers Although the separation of powers doesn’t create an express guarantee of human rights in the same way as other express rights, it is designed to protect human rights by providing cheks and balances that ensure the system of government doesn’t become oppressive. The courts have an important role to play. The SOP relies on the courts being independent of the legislature and executive. An aggrieved person is therefore table to take action I the court to ensure the sparation of powers is observed. Thus the courts can act as a check on the other two arms of government if need be. Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Representative Government A government that represents the view of the majority of the people. Section 7 The Senate must be ‘directly chosen by the people’ Section 24 The House of Representatives must be ‘directly chosen by the people’. Section 8 and 30 Each elector shall only vote once. Section 28 Provides for 3-year terms for House of Reps Section 13 Provides for 6-year terms for Senators Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Right to Vote Vickie Lee Roach case (pg 155) In 2006, Commonwealth Parliament passed an Act prohibiting all convicted and sentenced prisoners from voting in elections Before this, only prisoners who were serving sentences over three years were banned from voting Roach was serving a six-year term of imprisonment and challenged the constitutional validity of the Act High Court found that the Act was unconstitutional because ss7 and 24 of the Constitution require the parliament to be chosen ‘directly by the people’ Right to vote could be limited for substantial reasons and to preserve representative government (e.g. excluding people who had committed serious criminal misconduct) High Court found that prisoners serving more than three years were appropriately excluded from voting Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Express Rights Explicitly set out in the Constitution and are therefore entrenched Can only be removed by referendum process Five express rights: Freedom of religion (s116) Free interstate trade and commerce (s92) Not to be discriminated against on the basis of the state where you reside (s117) Receive just terms when property is acquired by the Commonwealth (s51(xxxi)) Trial by jury for indictable Commonwealth offences (s80) Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Constitutional protection of rights: express rights Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Implied rights Not expressly written in the Constitution but have been read into or implied in the Constitution by the High Court Right to political communication – in 1992, High Court found there was an implied right to freedom of political communication Linked to the notion of representative government Representative government could only operate if there was freedom for people to communicate about political issues Exists at all times, not just during times of an election Cases: ACT v. Commonwealth, Nationwide News Pty Ltd v. Wills, Theophanous v. Herald and Weekly Times Ltd, Lange v. ABC Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Evaluation of protection of rights by the Constitution Strengths Express rights cannot be changed unless via referendum Offers structural protection Express rights are enforceable through the High Court New rights can be added by referendum Courts can imply further rights if the text of the Constitution allows Weaknesses Very few rights and they are limited in scope High Court must wait until a case comes before it to declare a law to be ultra vires (outside the power) Extensive amount of rights, including rights of minorities, not protected Difficult to add in new rights by referendum Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015

Significance of one High Court case Learning Activity 4.3 (pg 165) Questions 1-3 Choose between Learning Activity 4.3 Questions 4-9 Learning Activity 4.4 Learning Activity 4.5 Learning Activity 4.6 Learning Activity 4.7 Justice & Outcomes 13e ISBN 9780195594201 © Oxford University Press Australia, 2015