1. Constitutional Protection of Human Rights

2. 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 © Oxford University Press Australia, 2015

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

4. 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 © Oxford University Press Australia, 2015

5. 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 © Oxford University Press Australia, 2015

6. 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 © Oxford University Press Australia, 2015

7. 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
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8. 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 © Oxford University Press Australia, 2015

9. 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 © Oxford University Press Australia, 2015

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

11. 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 © Oxford University Press Australia, 2015

12. 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 © Oxford University Press Australia, 2015

13. 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 © Oxford University Press Australia, 2015