PROTECTION OF RIGHTS

RIGHTS The protection of rights is a high priority for people living in a democratic society. Every person has a right to voice their opinion on the treatment of themselves and others. A right can be defined as: … an interest recognised and protected by the law, respect for which is a duty, and disregard for which is wrong … (Osborn PG, A Concise Law Dictionary, 2005)

Universal Declaration of Human Rights The most basic human rights that should be protected were set out by the United Nations in the 1948 Universal Declaration of Human Rights There are many other international treaties that set out in more detail the sorts of rights that ought to be protected. However, the rights set out in the international treaties that Australia has signed do not automatically become part of Australian law. It is necessary for the law-makers in Australia to protect these rights through legislation and common law.

KEY WORDS (Define from page132) Structural protection of rights Expressed rights Implied rights

Approaches taken to protect rights Countries decide how to protect democratic and human rights for their own people. There are a number of approaches taken. In some countries, such as the United States, Canada and South Africa, there are express rights contained in a bill of rights that forms part of that country’s constitution. An express right (also known as an explicit right) is a right that is specifically listed in a document or constitution. An example of an express right in the Commonwealth Constitution is the right to freedom of religion.

Approaches taken to protect rights In countries such as New Zealand, a bill of rights is part of an act of parliament (a statutory bill of rights). It can be changed by an amending act of parliament. This is an unentrenched bill of rights, which exists as a separate act that is passed by parliament and can be changed by the parliament that passed the act. It is not as permanent as a constitutional bill of rights. In Australia, rights are mainly protected by acts of parliament and common law. Australia does not have a bill of rights (at a federal level), although it has been suggested. Victoria and the ACT have a statutory bill of rights.

AUSTRALIA Australia is the only western nation that does not have a national bill of rights. In Australia, rights are mainly protected by a legislation and common law approach. However, there are some rights protected under the Constitution. These are: rights covered 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 fi ve express rights protected 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).

STRUCTURAL PROTECTION OF RIGHTS Structural protection is the systems or mechanisms in the Commonwealth Constitution that indirectly protect human rights by preventing the abuse of power, such as the separation of powers or representative government. Structural protection reflects the fact that there are checks and balances built into the Constitution, which prevent power being abused and therefore protects human rights. The structure and text of the Commonwealth of Australia Constitution Act 1900 (UK) provides mechanisms for the indirect protection of the rights of Australians in their dealings with the Commonwealth Parliament by preventing the abuse of power. These mechanisms are known as the structural protection of rights. For example, the Constitution provides for: responsible government representative government separation of powers and the High Court of Australia as a final arbiter of the power of the Commonwealth.

STRUCTURAL PROTECTION OF RIGHTS *****QUESTION TIME***** These three constitutional principles underlie our democratic system of government and provide checks and balances to prevent the abuse of power and thereby indirectly protect human rights. *****QUESTION TIME***** Complete - LA 4.2 (page 138) Q1,2,3 & 6

EXPRESS RIGHTS An express right (also known as an explicit right) is a right that is specifically listed in a document or constitution. Express rights can be entrenched in a constitution. The Australian Commonwealth Constitution clearly sets out five express rights (explicit rights). These express rights are entrenched in the Constitution. This means they can only be removed from the Constitution by amending the Constitution using the referendum procedure established by S128. Rights that exist in common law, and rights created by legislation, can be abolished at any time by the Commonwealth Parliament legislating to override them. The five express rights are the right to: freedom of religion (S116) free interstate trade and commerce (S92) not 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).

ENFORCEMENT OF RIGHTS IN AUSTRALIA IMPLIED RIGHTS Rights are implied in the Constitution by the structure and text of the Constitution. This means drawing words from the Constitution that implies something that is meant or intended, but not actually said. For example, the High Court has found that the Constitution contains the implied right to freedom of political communication. SEE POLITICAL COMMUNICATION p143 ENFORCEMENT OF RIGHTS IN AUSTRALIA The role of the High Court in constitutional cases is to hear cases brought before it and to interpret the words in the Constitution. Constitutional rights are fully enforceable by the High Court, which can declare legislation invalid if it violates any of these rights. The Commonwealth Parliament (or any other parliament) cannot override a High Court interpretation of the Constitution. If the High Court declares legislation invalid, the parliament’s options are: to amend the legislation so that the unconstitutional provisions are removed from it or to try and remove the right in the Constitution by amending the Constitution in accordance with S128.

QUESTION TIME!!!!! Complete LA 4.3 Q2, 4, 5, 7,

SOME POSSIBLE HIGH COURT CASES RELATING TO PROTECTION OF RIGHTS The study design says that you need to know one High Court case relating to the constitutional protection of rights in Australia. This may be required through a question such as: Exam Q: Select one case in which the High Court was called upon to decide an issue relating to the protection of rights in Australia. Why would the High Court have heard this case? Explain the significance of the High Court case you have selected on the protection of rights in Australia. (4marks) CASE 1: VICKI LEE ROACH – THE RIGHT TO VOTE Read the case p138-139 Summarise the main facts of the case Complete Q8 p138 Answer the above exam question in relation to this case. SOME POSSIBLE HIGH COURT CASES RELATING TO PROTECTION OF RIGHTS