The Commonwealth Of Australia: The Constitution And The Protection Of Rights

1794 words - 7 pages

The Constitution and the Protection of Rights

The Commonwealth of Australia Constitution Act (UK) 1901 is a document that outlines the structures and the law making powers of the Commonwealth Parliament. This document provides for the protection of rights in three ways. Firstly, rights are safeguarded through structural protections, which are a system of checks and balances set up by the founders of the constitution to protect human and democratic rights by ensuring that absolute power is not held by one body, thus avoiding corruption or abuse of Commonwealth power. Some of these structural protections include the separation of powers between the executive, legislative, and judicial branches, the bicameral parliament, and the principles of representative and responsible government (s.7, 24, 28, 13) which protect our right to vote by providing a government that is ‘directly chosen by the people’ through elections, and is therefore a government that holds the views of the majority of the population and is answerable and accountable to parliament and the public. Secondly, rights are also protected through express rights which are rights and freedoms that are entrenched into the constitution, and are only changeable via referendum. The five express rights protected by the constitution include ; the acquisition of property on just terms (s.51), trial by jury for indictable offences (s.80), freedom of movement (s.92), freedom of religion (s.116), and freedom from interstate discrimination(s.117). And thirdly, implied rights offer a means for protection as through interpreting the Constitution and considering many cases, the High Court of Australia recognizes other rights belonging to Australians that the founders of the constitution implied and intended, but did not explicitly write into the document. The High Court have identified one implied right; that is the right to freedom of political communication, as developed from cases such as Political Advertising Case. This right ensures that people can freely debate and discuss matters concerning the government and public affairs as it is fundamental to their making informed decisions and votes, and central to the principle of a representative and responsible government.

Although the Commonwealth of Australia Constitution Act (UK) 1901 protects our rights in the three ways mentioned above, it is not as effective as it could be as firstly; although the constitution contains express and implied rights entrenched within it that can only be changed by a complex referendum process involving the proposed referendum being introduced into the Commonwealth Parliament, passed by both houses, then passed with a double majority by voters in states, given royal assent, then changed, it is evident that there is a limited number of express rights protected by this process ( 5 express, 1 implied), as opposed to the United States’ Bill Right which protects 10 civil and political rights within their constitution....

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