Structural Protection, express rights, implied rights
the significance of one high court case relating to the constitutional protection of human rights
differences between the approach adopted in Australia to the constitutional protection of rights and the approach adopted in another country. And which one is more effective and why?
Evaluate the means by which the rights of Australians are protected by the Commonwealth constitution
Structural protection is one means by which the Constitution attempts to protect democratic human rights. Structural protection refers to the frameworks that exists within the Constitution to indirectly safeguard our rights.
Here, this refers primarily to the doctrine of separation of powers whereby legislative, executive and judicial functions are divided amongst different branches to ensure a system of checks and balances and minimise corruption.
Secondly, the existence of the principle of representative government found within S7 and S24 of the Constitution requiring members of parliament to be 'directly chosen by the people' ensures that MPs are there to uphold our views in parliament and make laws to reflect our wants and needs. If this does not occur, they face not being re-elected. The requirement of responsible government means that members of parliament must also be held accountable for their actions and their actions must be transparent to the people. This diminishes the opportunity for parliament to oppress or restrict our rights.
Furthermore, the existence of the High Court ensures that any legislation passed by parliament that conflicts with our rights in the Constitution will be made invalid. Also the bicameral structure of parliament and the existence of an Upper House ensures that all bills go through a process of adequate review.
Through the presence of these mechanisms, the Constitution ensures that our rights are indirectly safeguarded.
Do we, as Australian citizens, have rights? Most Australians take it for granted that they have basic rights, however unlike other western democracies, our Constitution does not contain a bill of rights and very few rights are actually explicitly guaranteed by our Constitution.
Were the writers of the Constitution worried about individual's rights? As we know, in 1901 the writers of the Constitution were concerned about protecting the rights of states - they were not particularly worried about protecting the rights of individual citizens.
Is a Bill of Rights the only way to protect rights? A Constitutional Bill of Rights is only one way to protect human rights. In Australia rights are protected in a number of ways. Here are some things you should know about how rights in Australia are protected:
The Constitution mentions a few rights
Rights are outlined in international treaties that we have signed - this means they are influential, if not legally enforceable
Some rights are protected by our common law - for example the right to silence, and the right to a fair trial
Commonwealth and state anti-discrimination legislation
Victorian Charter of Human Rights & Responsibilities and the ACT Human Rights Act
It could be said that in Australia rights are mainly protected by ‘a legislation and common law approach’
The Constitution sets up the Australian parliamentary structure. This structure provides for the protection of some rights. For example, the Constitution provides for:
Responsible government
Representative government (s.7 and s.24)
Separation of Powers
These three constitutional principles underlie our democratic system of government and provide checks and balances to prevent abuse of power and thereby indirectly protect human rights.
Structural protection = the systems, structures or mechanisms found in our Constitution that operate to indirectly protect human rights by preventing the misuse or abuse of power.
Express/Entrenched rights
A small number of rights are actually expressly stated in the Constitution. These rights are entrenched, meaning they can only be changed or removed through referendum – the Commonwealth Parliament cannot remove them by passing an act of parliament.
They are often entrenched in a constitution.
An entrenched right cannot be changed by an act of parliament.
A right contained in a constitution can only be changed in the manner set out by the constitution
There are only five express/explicit rights in our Constitution:
The acquisition of property ‘on just terms’ s.51
Trial by jury s.80
Freedom of interstate trade and commerce s.92
Freedom of religion s.116
Freedom from interstate discrimination: s.117
For example, in Australia, The Right to Freedom of Religion is in the Commonwealth Constitution and could only be changed through referendum.
Case Study
Roach v Electoral Commission (2007)
The plaintiff Roach was a woman of Indigenous descent. She was sentenced to 6 years imprisonment after committing a series of indictable offences. While in prison, amendments were made to the Electoral Act banning all prisoners from participating in federal elections. Roach believed that the amendments were unconstitutional based on two arguments: Firstly, the amendment should not be allowed as it impacted prisoners serving sentences (for the most part) for committing criminal offences. Crimes fall within residual powers and thus the Commonwealth should not be able to interfere.
Secondly and more importantly, the amendment was unconstitutional as it limited the notion of representative government. Under S7 and S24, the Constitution requires that the Senate and House of Representatives must be 'directly chosen by the people'. By banning all prisoners from voting, this infringed upon the idea of people being able to directly elect their leaders.
The High Court agreed with Roach's argument and declared the amendment whereby all prisoners were banned from voting invalid. As a result, the original provision came back into affect whereby prisoners serving more than 3 years were barred from voting. Unfortunately for Roach, she fell within that category and was still barred from voting in the 2007.
For Roach, this was a victory for Indigenous people as they are over represented within our prison system and it meant that the lack of voting would have had a greater impact on Indigenous people.
Political Advertising Case (1992)
During the Hawke government, a ban was implemented that prevented political advertising on television and radios during a federal election. The ban excluded news items and a current affairs. The reason for the ban was to prevent more wealthy political parties that could afford to buy more air time from dominating the media.
The plaintiffs were a group of broadcasters that challenged the amendments and argued that they were unconstitutional.
The plaintiffs argued that under S7 and S24 whereby the Upper and Lower House must be 'directly chosen by the people' to uphold the notion of representative government. In order to participate in a democratic election and therefore uphold representative government, the people must be informed of who and what party they are voting for. It is then essential that debates concerning political issues by freely debated and discussed. The banning of political advertising infringed and will limit the notion of representative government from occurring.
The case went to the High court and was ruled in favour of the plaintiffs. The amendments on political advertising was uplifted allowing political adverting to freely take place in the lead up to an election to allow people to be informed in order to cast their vote.
1st Amendment: freedom of speech, press, religion and petition This guarantees free speech, free press, right to peaceful assembly, freedom of religion and the separation of church and state and the right to petition the government for a redress of grievances.
2nd Amendment: right to keep and bear arms This amendment provides for ‘a well regulated Militia, being necessary to the security of a free state, [and] the right of the people to keep and bear arms, shall not be infringed’.
3rd Amendment: conditions for quarters for soldiers This provides that troops cannot be quartered in someone’s house without that householder’s consent (this was regarded as an important guarantee in the eighteenth century but is less relevant today).
4th Amendment: right of search and seizure regulated The 4th Amendment guarantees ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated’. (This has been interpreted to include a right to privacy, as well as restricting the circumstances in which police can search.)
5th Amendment: provisions concerning prosecution This guarantees the following:
the right not to answer a question which might incriminate
the right not to be tried twice for the same crime (the double jeopardy rule)
the right to a grand jury – provides that a person cannot be tried for a capital or infamous crime unless first indicted by a grand jury (a grand jury is larger than a usual jury and determines if there is enough evidence for a trial)
the right not to be deprived of liberty without due process of law (that is, arbitrary detention or arrest is prevented)
just compensation when property is taken for public use.
6th Amendment: right to a speedy and public trial The 6th Amendment guarantees the right to a fair and speedy trial by an impartial jury, the right to legal counsel, the right to be informed of the nature of the accusation and the right to compel witnesses to testify during the trial.
7th Amendment: right to trial by jury The 7th Amendment provides for a right to jury trial in civil cases.
8th Amendment: excessive bail, cruel punishment This amendment provides protection from excessive bail being required, or excessive fines and cruel or unusual punishments being imposed (although this has not excluded capital punishment for adults).
9th Amendment: rule of construction of the Constitution This amendment states that the enumeration of these rights does not deny the existence of other rights retained by the people.
10th Amendment: rights of the states under the Constitution The 10th Amendment provides that powers not delegated to the United States by the Constitution are retained by the states or the people. Later amendments There have been a number of amendments to the US Constitution since the initial 10 amendments that formed the Bill of Rights.
13th Amendment: abolition of slavery (1865) Officially abolished and continues to prohibit slavery and involuntary servitude, except as punishment for a crime.
14th Amendment: equal protection (1868) Guarantees equal protection of the law to all persons. It provides that no state ‘shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property’.
15th Amendment: full rights of citizenship (1870) Gives full rights of citizenship to people of any race or colour (including the vote).
18th Amendment: prohibition (1919) Started prohibition of the sale of alcohol.
19th Amendment: vote to women (1920) Gave the vote to women.
21st Amendment: repealed prohibition (1933) Repealed the 18th amendment relating to the prohibition of the sale of alcohol.
26th Amendment: vote to 18-year-olds (1971) Gave the vote to those aged 18 years or older.