1. Comparison of Australia’s onstitutional approach to the protection of rights with another country: America

2. The United States adopted a federal system of government, with a division of powers between the central and state governments, as is the case in Australia. Some aspects of the US Constitution were adopted by the writers of Australian Constitution in the 1890s, although there are some significant differences.
The United States Constitution lays out the structure and powers of government, including the division of powers and separation of powers familiar to us in Australia. It was one of the first written constitutions ever adopted by any country in the world and forms the framework for the American system of democratic government.
Like Australia, the US is a federation of States.
The US Bill of Rights is the name given to first 10 amendments to the US Constitution of 1791
Other amendments have also extended the range of rights entrenched within the US Constitution

3. Changing US Constitution – specified in article V of Constitution
To alter their constitution, a referendum like procedure must be held – called either a referendum or “Initiative”.

4. United States Bill of Rights
The United States has an entrenched Bill of Rights which is contained within the first 10 amendments to the US Constitution. These amendments were adopted in 1791, and set out the basic civil and democratic rights of US citizens
Ten amendments collectively make up the constitutionally entrenched US Bill of Rights
. This Bill of Rights is a document dealing with democratic, civil or political rights, rather than social or economic rights.
It seeks to limit the power of the government to ensure individual rights and liberties are protected, including individual rights of freedom of speech, press, assembly and religion

6. Key protections in US Bill of Rights
Freedom of speech, religion, peaceable assembly, right to petition government
The right to keep and bear arms: 2nd amendment: At the conclusion of the War of Independence, many of those involved in framing the Constitution felt that their newly established country would need to be defended by ensuring that ordinary citizens could become part of a citizen army, or militia. Many have argued that this right is no longer necessary, as the US now has sufficient professional armed forces to protect the country, and the ownership of guns has led to large numbers of murders and other deaths through firearm accidents.
Protection from quartering of troops
5th and 6th amendments: Protection from unreasonable search and seizure, Due process, protection from double jeopardy and self- incrimination, compensation for private property taken for public use (comparison to s.51 xxxi Acquisition of property on just terms)

7. CASE STUDY FOR 5TH 6TH AMENDMENTS: GRIFFIN V. CALIFORNIA (1965)
Griffin was charged with murder and refused to testify in his trial. During his summing up, the prosecution counsel highlighted the defendant's refusal to testify. In his direction to the jury, the judge suggested that if a defendant failed to deny evidence presented in court, the jury could take that failure as an indication that the evidence was true. Griffin was convicted and sentenced to the death penalty. On appeal to the Supreme Court, the Court found that the judge's direction was in breach of rights protected by the fifth amendment. The court held that it is an infringement of a defendant's constitutional rights for a prosecutor to comment on the defendant's refusal to testify, or for a judge to suggest to a jury that such a refusal may be an indication of guilt. Griffin was eventually found guilty at a re-trial.

8. Rights continued
Trial by jury and other rights of the accused in criminal cases
Civil trial by jury
Prohibition of excessive bail or cruel punishment
A declaration that other rights not listed may be protected
Grants of residual power to the states and to the people

9. Implied rights
Just as the High Court of Australia has interpreted the Constitution to recognise an implied right of political communication, the US Supreme Court has recognised an implied right to privacy. It flows from:
the fourth amendment, which guarantees the right of people to be secure in their persons and houses, and be protected from unreasonable searches and seizures.
the fifth and fourteenth amendments, which guarantee a right of due process to protect the citizen from unlawful intrusion by the state.
the ninth amendment, which allows for the people to have additional rights to those specifically covered by the Constitution.
This right of privacy has been interpreted to include the right to marriage, the right to have children, the right to have access to contraception and the right to abortion. The right to abortion was recognised by the court in 1973 and remains a controversial interpretation.

10. Enforcement of rights/limitations
There is no designated body to oversee the Bill of Rights, so enforcement is through action taken by individuals or groups through the courts
. This will occur if it is believed that legislation or any other government action infringes the Bill of Rights or any other part of the Constitution.
Within the court system, the US Supreme Court has the ultimate power to declare legislation invalid if it is inconsistent with the Constitution, including the Bill of Rights.
The US Constitution contains no limitation clause requiring courts to balance the rights expressed with any other aspect of public interest

11. Similarities
Differences
Structural protection of rights, with the separation of powers and representative government exists to protect human rights through the misuse of power
Separation of powers is strictly adhered to in the US, whereas in Australia there is overlap between the legislative and executive functions
Express rights are entrenched (eg-freedom of religion and right to trial by jury) and can only be changed by holding a referendum like procedure
The US has a Bill of Rights which expressly states a far more extensive list of entrenched rights than Australia (which has only 5 express rights and one implied right) example of a right USA has that we do not – freedom of speech
Superior courts have found implied rights that have been read into the Constitution (US-5th and 14th amendments right to due process to protect citizen from unlawful intrusion by the state, AUS-right to freedom of political communication)
The referendum procedure of the US is different and more lengthy than in Australia - 2/3 majority of both houses of congress + ¾ all states = constitutional change
Rights can be enforced through the courts, who can decide whether legislation is unconstitutional and therefore invalid.
There is no doctrine of Responsible Government in the US, where President is separate from the Congress. He/she may still rule even without the majority support of Congress

12. You must be able to compare in detail the protection of rights with America.

13. TEST your understanding
1.) Identify and explain three structural similarities between the Australian and US Constitutions.
2.) Identify and explain three structural differences between the Australian and US Constitutions.
3.) Explain the process that must be followed to change the US Constitution.
4.) ‘While the United States and Australia share similarities in relation to representative government, the same cannot be said in relation to responsible government.’ Explain this statement.
5.) Do you think that constitutional change is easier or harder in the US than in Australia? Give reasons for your answer.

14. APPLY your understanding
4.) ‘While the United States and Australia share similarities in relation to representative government, the same cannot be said in relation to responsible government.’ Explain this statement.
5.) Do you think that constitutional change is easier or harder in the US than in Australia? Give reasons for your answer.

15. Exam question Compare the approach that Australia’s Constitution has to the protection of rights and the approach adopted in another country listed below: (6 marks) Canada The United States of America South Africa New Zealand (4 marks)

16. The Australian Constitution protects implied rights, that is, rights that are deemed to exist due to the High Court’s interpretation of the Constitution. For example, the right to freedom of political communication is protected because the High Court ruled in favour of Australian Capital Television when the Commonwealth wanted to ban political broadcasting during election time. Similarly, in America, implied rights exist due to the Supreme Court’s interpretation of their Constitution. For example, the right to privacy is implied because their Bill of rights has the express right that citizens should feel secure in their homes.

17. Although both countries protect express rights in their constitution, the rights are protected differently. The Australian Constitution only outlines five express rights that are entrenched; for example, the right to freedom of religion in that the Commonwealth cannot impose, establish or restrict a religion. The American Constitution, however, has a Bill of rights that has 10 amendments and protects a broad range of rights from freedom of speech to the right to bear arms.

18. Question examination
‘Rights in Australia are well protected by the Commonwealth Constitution, in part because of section 128 of the Constitution.’
Discuss the extent to which you agree or disagree with the above statement. In your answer, explain the significance of one High Court case that you have studied related to the constitutional protection of rights in Australia

19. Sample response from examiner’s report
While the structure of the Commonwealth Constitution ensures that the rights already in the Constitution are well protected, I do not believe that there are an extensive amount of rights well protected by the Commonwealth, and I believe that section 128 acts as both a hindrance and a benefit to rights protection in Australia.
There are only a limited amount of rights expressly written in the Constitution. Those rights, five of them, are well protected by the Constitution because it is very difficult to change the words of the Constitution (as discussed below). However, many of those rights are limited in nature. For example, the right to a trial by jury is only for indictable Commonwealth offences. Further, these are rights that would not be seen as general human rights such as the right to liberty or freedom of speech – some of them are economical rights such as the right to interstate trade.
However, as stated, section 128 ensures those rights cannot be easily changed. The referendum process has been proven to be very difficult to have the Constitution changed. While this is seen as a benefit to constitutional protection of rights, it’s also a hindrance. It means that if Australia wanted to express further rights in the Constitution, it would have to do so by way of a referendum process. Given the poor success rate of referendums in the past, unless the referendum is one that is popular in the eyes of the public, it is unlikely to succeed.