1. 2.8 Means by which the Commonwealth Constitution protects rights Structural Protection, Express Rights and Implied Rights

2. How does the Constitution protect democratic and human rights? Australians have some basic rights However, very few rights are expressly guaranteed by the Commonwealth Constitution How does the Australian Constitution differ from the Constitutions of other countries?

3. Structural Protection The structure of the Commonwealth Constitution protects the rights of Australians. The writers of the Constitution believed that the best way to protect individual rights was to ensure responsible and good government. Consequently, 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 number of people who might then abuse that power. SUMMARY: The writers of the Constitution believed that the greatest threat to human rights occurs when power is concentrated in the hands of a small number of people, who are unaccountable. Consequently, Constitutional structures are designed to prevent power from being concentrated.

4. Structural Protection The following structures, established by the Commonwealth Constitution, help to protect the democratic and human rights of citizens: Bicameral parliament Separation of powers Representative government Responsible government S 128 – Referendums

5. Structural Protection 1. Bicameral parliament The existence of two Houses of Parliament ensures that every proposed law represents the will of the majority of voters: The Senate ensures that the proposed legislation is in the best interests of the state. The House of Representatives ensures that the legislation is in the best interests of the electorate. Consequently, the Constitutional requirement that a bill must be passed in both Houses of Parliament in order to become a law (Act) ensures that the legislation will be in the best interests of voters. The existence of two Houses of Parliament also ensures that every proposed law is thoroughly scrutinised. The Senate acts as a house of review for the House of Representatives. A bill must be passed in the Senate and the House of Representatives before it can become law. Most bills are initiated by the government and implement government policy. The Senate scrutinises all bills to ensure that they are in the public interest. Ultimately, the Senate may pass a bill without amendments, pass it with amendments, or reject the bill. The Committee of the Whole stage and the Senate Committee System, means that the Senate is very effective at examining legislation. In addition, the Scrutiny of Bills Committee has a responsibility to inform the Senate of any bill that unduly trespasses on individual rights and liberties

6. Structural Protection (iv) 2. Separation of Powers RATIONALE: Absolute Power Corrupts Absolutely The Commonwealth Constitution protects Australian citizens by ensuring that no one individual or group has absolute power The Commonwealth Constitution achieves this by dividing law-making power amongst three separate bodies: the Legislature, the Executive and the Judiciary

7. Structural Protection (v) 2. Separation of Powers The Australian Constitution LEGISLATIVE POWER: Chapter 1, ss 1- 60 EXECUTIVE POWER: Chapter II, ss 61- 70 JUDICIAL POWER Chapter III, ss 71 - 80 Section 1 gives the legislative power to the Commonwealth Parliament. Section 62 gives the executive power to the Crown. Section 71 gives the Judicial power to the High Court.

8. Structural Protection (vi) 3. Representative Government The principle of representative government prevents a government from abusing power by making Members of Parliament answerable to the people at elections Regular elections create an incentive for Members of Parliament to represent the needs and views of the people who voted the MP in. The following sections of the Constitution also promote the principle of representative government: 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 28: There must be an election every three years for the House of Representatives Section 13: There must be an election for senators every six years

9. Structural Protection (vi) 4. Responsible Government The government is responsible to both the House of Representatives and the Senate. Parliament, which is established by the Constitution, can establish committees to scrutinise government actions and expenditure. Government is also responsible through the electoral process. If the government fails to respond to the needs of the community, or acts irresponsibly, they will not be reelected.

10. Structural Protection 5. Section 128 - Referendums The Constitution can only be changed by referendum. S 128 requires that after a proposed referendum passes through parliament, it is put to Australian voters. A double majority (a vote by the majority of voters and the majority of states) is required for a referendum to be successful. The strict requirements imposed by s 128 ensure that only a Constitutional change that is supported by the majority of voters will be successful.

11. Express Rights The Commonwealth Constitution contains a limited number of express rights, which were deliberately written into the document. Express rights are entrenched in the Constitution. They can only be changed by referendum.

12. Express Rights

13. Implied Rights The High Court has determined that some rights may be implied by the Constitution. The HCA, during the process of interpreting provisions of the Constitution, may sometimes draw certain implications from the Constitution. An implication is something that is meant or intended, but not actually expressly stated. I.e. an implied right is a right that was intended by the drafters of the Constitution, but which is not expressly stated in the Constitution. The High Court has found the following implied rights: The right to freedom of political communication The right to vote

14. Implied Rights The Right to Freedom of Political Communication The High Court has found that the systems of representative and responsible government established in the Constitution imply a freedom to discuss political and public affair matters: Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45. This implied right was further developed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

15. Implied Rights Right to Vote The Constitution also provides an implied to vote: Roach v Electoral Commissioner (2007) HCA 43. The High Court held that the concept of representative government, as embodied in ss. 7 and 24 of the Constitution, created an implied constitutional protection of the right to vote.

16. Task Write a case-note, stating what the High Court held in the following cases and how it reached its conclusion: Theophanous v Herald Weekly Times Ltd (1994) 182 CLR 104 Lange v Australian Broadcasting Corporation (1997) 189 CLR Roach v Electoral Commissioner (2007) HCA 43

17. 2.9 Significance of one High Court case relating to the Constitutional Protection of Rights in Australia COMMON EXAM QUESTION 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? (1 mark) Explain the significance of the High Court case you have selected on the protection of rights in Australia (6 marks) Briefly discuss the facts of the case Explain the main issue before the High Court Explain the reasoning of the High Court Which sections of the Constitution were considered and how did these sections relate to the main issue? How did the High Court choose to interpret those sections of the Constitution and why? What was the significance of the decision to the Constitutional protection of rights?