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Unit 3 SAC 2B
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• Express rights are those rights entrenched within the
constitution and explicitly stated, therefore are only able
to be changed via successful referendum under section
128. one express right is the limited right to trial by jury.
whereas implied rights are not explicit but rather inferred
from a broad interpretation of the constitution by the
High Court. It is thought they were intended by the
authors of the constitution. We have one implied right, the
right to freedom of political communication founded in
the ACT case.
1.) Distinguish between express rights and
implied rights (2 marks)
2.) Define structural protections
and explain the main structures
that exist within our constitution to
protect rights (5 marks)
• Structural protections refer to the structures, systems and
mechanisms within the constitution that indirectly protect rights.
These are responsible government, representative government and
the separation of powers.
• Representative government protects democratic rights through
indirectly protecting our right to vote, as sections 7-24 and 61 state
that members of the houses must be directly chosen by the people.
Responsible government refers to the members of parliament being
accountable to the people for example during election time. This
protects us by making members of parliament accountable to the
people. The separation of powers divides the legal bodies of
Australia into three arms. This protects us from having one body
having ultimate power and also ensures that they act as a check on
each other.
• Express rights are entrenched within the
constitution and explicit which means that for them
to altered, a referendum must take place. This
means for any change, there must be overwhelming
support from the community to achieve double
majority. However, though Australia has express
rights, there are only 5 as such, and fail to
adequately protect basic rights such as the right to
freedom of speech. Further, they are spread out
throughout the constitution and not easily
accessible in a bill of rights, making them difficult
to find. Though there are only 5 express rights, they
are adequtely protected via section 128.
3.) Evaluate one strength of express
rights (3 marks)
• The High Court is the only court able to interpret the constitution
through sections 75-76, and in doing so, this sometimes affects
Australian’s protection of rights. One such case is the Australian
Capital Television Case, where in 1991 the government passed an act
to ban all paid political broadcasting during election time,
mandating radio and television stations give free air time to parties.
• The ACT challenged this on the grounds that this free air time
infringed the acquisition of property on just terms, and also
challenged it saying that sections 7-24, representative government,
hold within them an implied right to the freedom of political
communication.
4.) Using an illustrative case example, explain
how the High Court has been able to have an
impact upon rights protection in Australia. (4
marks)
• The High Court ruled in favour of the ACT. This case
impacted our protection of rights as it broadened our
rights, founding the implied right to freedom of political
communication which exists within the structures of
representative and responsible government, which cannot
exist without the free interchange of political information.
The parts of the act which infringed these rights were
deemed ultra vires.
• The High Court is the only court able to interpret the constitution through
sections 75-76, and in doing so, this sometimes affects Australian’s
protection of rights. One such case is the roach case, where Roach was
sentenced to 6 years in prison due to various crimes. She challenged the
Electoral Amendment Act which banned all prisoners from voting in
federal elections, whereas before it had been only those serving a
sentence over 3 years.
• The High Court agreed with Roach, stating that the amendment was
invalid and ultra vires as it restricted the structural protection of
representative government. As members of both houses must be directly
chosen by the people, this requires regular elections and citizens to be
able to vote. This affected rights protection as The High Court did not go
so far as to make this an implied right, rather the right to vote is
enshrined through the structural protection of representative government.
This right, however, can be restricted for factors such as serving a prison
term over three years, thus Roach was unable to vote.
5.) Evaluate Australia’s
constitutional protection
of rights (6 marks)
• To some extent, Australia adequately protects
constitutional rights.
• One such protection comes from express rights,
which are entrenched within the constitution
and can therefore only be altered via successful
referendum via section 128. this means any
change must meet double majority and have
overwhelming support from the society.
However, Australia has only 5 express rights,
which is very limited, and fails to protect basic
rights such as freedom of speech. Further, they
are spread throughout the constitution and not
in an accessible form such as a bill of rights,
making them difficult to find.
5.) Evaluate Australia’s constitutional protection of
rights (6 marks)
• Another protection stems from implied rights. These are
those rights not entrenched but rather inferred from a
broad interpretation of the constitution by the High Court.
This protects Australians as it allows new rights to be
found to allow for the Constitution to stay up to date in a
modern society. These implied rights can also not be
abrogated by Parliament, a further protection. However,
for an implied right to be found, a case must come before
the High Court which takes standing, and is also very
time consuming and costly.
• Another protection of our constitutional rights stems from our
structural protections. For example, representative government
indirectly protects our democratic right to vote, as sections 724 mandate members of both federal houses to be chosen
directly by the people. Fruther the separation of powers
ensures no misuse of power by separating the governing law
making bodies of Australia. This ensures no one body has
absolute power.
• However, structural protections are not entrenched and
therefore not protected via section 128. for example, the right
to vote is limited for factors such as serving a prison term over
3 years (as seen in roach case). They also do not protect
against overlap in the separation of powers. Another weakness.
• Therefore, overall, though Australia has few entrenched
rights and only one implied right, these rights are
adequately protected via the High Court and referenda.
6.) Compare the constitutional protection of rights
of Australia with that of the USA (4 marks)
• The USA and Australia have some similarities in regards to
their constitutional protection of rights. One is that they both
have express or explicit rights. These are entrenched within the
constitution and can therefore only be altered through a
referendum like process (sometimes referred to as an Initiative
in America). However, a point of difference is that the USA’s
referendum process is far more complex as instead of double
majority, they require 2/3 of both houses of congress and ¾ of
all 50 states to vote in favour. Further, the USA has a far more
extensive list of express rights including freedom of speech
which is set out in a bill of rights. Australia has only 5
entrenched rights and these are scattered through the
constitution and not in a bill of rights.
• Both countries also have implied rights found through
Superior court interpretations. The USA’s implied right
stems from the 4th, 5th and 9th amendments and is the right
to privacy, and Australia’s is the freedom of political
communication, found through the ACT case.
• The referral of powers is where a state, or states,
willingly hand over their residual powers to the
Commonwealth, which they are able to do through
section 51, where the commonwealth may legislate in any
area referred to it by a state. A reason why this may occur
is that states feel an area is better dealt with consistently
across the nation by the Commonwealth, for example,
terrorism where all states referred a limited amount of
power after September 11 and the Bali bombings
7.) Using an example, define the referral
of powers and explain one reason why
states may refer their powers. (4 marks)
• Under s.51 of the Constitution, the commonwealth is able to
legislative on matters that have been referred to them by any
state, where any state (or just one) can willingly hand over
some of their powers to the Commonwealth and not all states
must agree. This is carried out to ensure consistency across the
nation, where the area of law making is better being consistent
from state to state rather than different. An additional reason
for this to occur is the states may feel an area of law making
power is better being dealt with by the Commonwealth, as was
the case when the Criminal Code Amendment (terrorism) Act
2003 (Cwlth) was introduced in the wake of the Bali
Bombings and September 11. All states referred limited power
to enable this act, requiring the Act not be amended without
consultation with the states.
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