Protection of rights

Protection of Rights
Outcome 2 part b
Chapter 4
Wednesday, 9 April 14

Key Knowledge
the means by which the Commonwealth Constitution
protects rights, including structural protection, express
rights, 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 by America

Rights defined
Right ~ an interest recognised and protected by law, respect for
which is duty, and disregard for which is wrong.
UN 1948 Universal Declaration of Human Rights

How are rights protected globally?
Express
Specifically listed in a document, or
Entrenched in a Constitution
Statutory rights
Bill of Rights identified in a act of parliament
(statute)
Rights protected by legislation and common law
Acts of Parliament

Australia’s Approach
No Bill of Rights
Mainly protected by legislation and common law approach

Structural Protection
Separation of Powers
Responsible Government
Representative Government
The Crown

Separation of Powers
Three separate law-making bodies
Legislative
Executive
Judicial
Helps to protect individual rights by providing
checks and balances on the power of the
Commonwealth Parliament
Protects against abuse of power by one body

Responsible Government
The executive (PM, senior ministers &
government departments) needs the support of
the lower house to continue to govern
Protects the rights of citizens to be governed by
a government that has confidence and support
from the elected lower house
Protects against abuse of power by government

Representative Government
Represents views of the majority of the people
Direct election by the people of their political
representatives gives the people the right to
expect that those representatives will represent
their needs in parliament
Protects against a government ignoring the
people’s wants and needs

The Crown
Under the Queen’s
representative’s reserve
powers, a government may
be dismissed if believed not
to be acting in accordance
with the Constitution

Right to Vote
Section 41 limited (outdated) protection of right to vote
The right to vote is not clearly stated in the Constitution, however:
Section 7 The Senate
The Senate shall be composed of senators for each state,
directly chosen by the people of the State, voting, until the
Parliament otherwise provides, as one electorate
Section 24 Constitution of House of Representatives
The House of Representatives shall be composed of members
directly chosen by the people of the Commonwealth.....

Vicki Lee Roach - Right to Vote
Case
Read case study pp 168-169

Vicki Lee Roach - Right to Vote Case
In the 2007 case of Roach v. Electoral
Commissioner, the High Court
concluded that Section 7 and 24 of
the Constitution included the concept
of adult suffrage - the right to vote
The High Court determined that
because representative government
has evolved since Federation to
include universal adult suffrage,
today Section 7 and 24 include ‘a
constitutional protection of the right

Vicki Lee Roach - Right to Vote
Case

Express Rights
Australia’s express rights are entrenched in the
Commonwealth Constitution
There are five express (entrenched) rights
identified
They are more so restrictions on Commonwealth
law-making power, rather than rights for
individuals

Five express rights in the Commonwealth
Constitution
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)

Implied Rights
Implied rights are those rights not expressly or
explicitly written in the Constitution
Implied by the structure of the Constitution
The only implied right in Australia concerns
Political Communication

Political Communication an
implied right
The right to freedom of speech is not stated in
the Constitution
High Court has determined that the
Constitution has an implied right to freedom of
communication on political matters
Recognised in the case of Australian Capitial
television Pty Ltd v. Commonwealth (1992)
aka Political Advertising Case

Political Advertising Case

Australia’s Approach to the Enforcement
of Rights
Constitutional rights enforceable by the High Court
High Court can declare a legislation invalid if found to
impact on Human Rights

Rights Protected by Acts or Common Law
Most of human rights in Australia are
protected either by Acts of Parliament or
through Precedent

Evaluation
How well does Australia Protect Rights?
Approach to the recognition of rights
Nature of the rights protected
Enforcement
Statutory Interpretation

Approach to the recognition of rights
Explicit rights are entrenched in the
Constitution and cannot be
removed except by referendum
Implied rights have been interpreted
by the courts and reflect the
capacity of the Constitution to meet
the changing needs and values of
our society
The number of rights entrenched is
very limited. The referendum
process required to alter these
rights, or to entrench other rights is
rarely successful
Implied rights develop through case
law and do not provide a
comprehensive recognition of
rights. These rights develop in an
ad hoc manner
Strengths Weaknesses

Nature of the rights protected
Explicit rights are mainly civil and
political rights
There is an implied right to freedom
of communication on public affairs
and political matters
Civil and political rights are
limited; significant democratic
and human rights are not
mentioned in the Constitution
Most rights are concerned with
limitations on the action that the
Commonwealth may take in
relation to individuals

Enforcement
Explicit rights and implied rights
are fully enforceable by the High
Court, which can invalidate
legislation that infringes those
rights
Rights stated in the Constitution
operate as limitations on
government power. Some rights are
expressed as specific prohibitions.
The Commonwealth Parliament
cannot make laws that conflict
with an express or implied right
Enforcement through the High
Court is time-consuming and
costly
Explicit rights mainly relate to the
action of Commonwealth
Government
The Constitution does not
necessarily safeguard individuals
from the actions of state
parliaments

Statutory Interpretation
High Court interprets the meaning
and application of those rights
expressed in the Constitution to
current issues
High Court interpretation has
implied rights consistent with
fundamental democratic principles
Historically, the interpretation of
explicit rights has been narrow
The development of implied rights
has been limited

United States - Protection of Rights
See Case File Handout

Comparison
AUS v. US

Protection of rights

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