2013 U3AOS2B SAC responses

Describe how one principle established by the Commonwealth Constitution provides structural protection of rights (2 marks) Structural protection refers to the mechanisms and processes set out in the Constitution that indirectly protect human rights and provide a check and balance against any abuse of power. Structural protection involves representative government, responsible government and separation of powers. Separation of powers involves separating the judiciary, legislative and executive powers to avoid a misuse of power. Separating judicial and legislative powers ensure that those who create laws don’t enforce them, therefore power cannot be abused and human rights can be protected.

Describe how one principle established by the Commonwealth Constitution provides structural protection of rights (2 marks) Representative government is a principle in the Commonwealth Constitution that provides structural protection of rights. Representative government provides for the direct election of representatives of parliament by the people. This is turn is a right in itself, to vote. The right to vote is indirectly outlined and supported in this principle and in turn is a protection of our rights.

Response 1Response 2 Structural protection refers to the mechanisms and processes set out in the Constitution that indirectly protect human rights and provide a check and balance against any abuse of power. Structural protection involves representative government, responsible government and separation of powers. Separation of powers involves separating the judiciary, legislative and executive powers to avoid a misuse of power. Separating judicial and legislative powers ensure that those who create laws don’t enforce them, therefore power cannot be abused and human rights can be protected. Representative government is a principle in the Commonwealth Constitution that provides structural protection of rights. Representative government provides for the direct election of representatives of parliament by the people. This is turn is a right in itself, to vote. The right to vote is indirectly outlined and supported in this principle and in turn is a protection of our rights.

What is the difference between entrenched rights and statutory rights? (2 marks) Entrenched rights are rights that are expressly stated in the Constitution (eg freedom of religion s116) whereas statutory rights are rights that are apart of legislation and come about by passing a bill through parliament (eg right to silence)

What is the difference between entrenched rights and statutory rights? (2 marks) An entrenched right is one that is expressly stated in the Constitution and can only be changed via a successful referendum. An example of an express right in the Australian Constitution is s.80 the right to jury for Commonwealth indictable offences. Whereas, statutory rights are not entrenched within a constitution and can be changed via passing an act through parliament. An example of this is the Victorian Charter of Human Rights.

Response 1Response 2 Entrenched rights are rights that are expressly stated in the Constitution (eg freedom of religion s116) whereas statutory rights are rights that are apart of legislation and come about by passing a bill through parliament (eg right to silence) An entrenched right is one that is expressly stated in the Constitution and can only be changed via a successful referendum. An example of an express right in the Australian Constitution is s.80 the right to jury for Commonwealth indictable offences. Whereas, statutory rights are not entrenched within a constitution and can be changed via passing an act through parliament. An example of this is the Victorian Charter of Human Rights.

Explain one High Court case relating to the Constitutional protection of rights ( 4 marks) The Roach case relates the constitutional protection of rights. Vicki Lee Roach had been imprisoned for 6 years for a number of offences. During her incarceration, parliament changed a law that made it that no prisoners could vote in elections. Roach believed that this amendment was a violation of rights. She took her case to the High Court where she claimed that in order to uphold the structural protection of representative government you must allow people to vote. The High Court found in favour of Roach saying that the right to vote is an essential element of representative government and restricting this was a violation of human rights. The impact of this case was that it allowed prisoners serving less than 3 years the right to vote, however this did not include Roach who was serving 6 years.

Explain one High Court case relating to the Constitutional protection of rights One High Court case relating to the constitutional protection of rights in Australia is the Roach case. Vicki Lee Roach was serving a sentence of six years when the 2006 amendments to the Electoral Act were introduced. The 2006 amendments prohibited any person serving a sentence from voting in the upcoming federal election. Prior to these amendments any persons serving 3 years and over were excluded from voting. Roach took the case to the High Court claiming that the 2006 amendments were not upholding representative government mandated by the Constitution in s.7 and s.24. The High Court found in Roach’s favour and maintained that if the members of parliament are to be ‘directly chosen by the people’ then this implied a right to vote. Therefore the 2006 amendments were repealed and prisoners serving under 3 years were allowed to vote. This was a significant case as it recognised the right to vote was constitutionally protected under the principle of representative government.

Response 1Response 2 The Roach case relates the constitutional protection of rights. Vicki Lee Roach had been imprisoned for 6 years for a number of offences. During her incarceration, parliament changed a law that made it that no prisoners could vote in elections. Roach believed that this amendment was a violation of rights. She took her case to the High Court where she claimed that in order to uphold the structural protection of representative government you must allow people to vote. The High Court found in favour of Roach saying that the right to vote is an essential element of representative government and restricting this was a violation of human rights. The impact of this case was that it allowed prisoners serving less than 3 years the right to vote, however this did not include Roach who was serving 6 years. One High Court case relating to the constitutional protection of rights in Australia is the Roach case. Vicki Lee Roach was serving a sentence of six years when the 2006 amendments to the Electoral Act were introduced. The 2006 amendments prohibited any person serving a sentence from voting in the upcoming federal election. Prior to these amendments any persons serving 3 years and over were excluded from voting. Roach took the case to the High Court claiming that the 2006 amendments were not upholding representative government mandated by the Constitution in s.7 and s.24. The High Court found in Roach’s favour and maintained that if the members of parliament are to be ‘directly chosen by the people’ then this implied a right to vote. Therefore the 2006 amendments were repealed and prisoners serving under 3 years were allowed to vote. This was a significant case as it recognised the right to vote was constitutionally protected under the principle of representative government.

Outline the approach to the constitutional protection of rights in the United States of America (5 marks) The United States of America has an approach the constitutional protection of rights that is very similar to ours. The US has express rights contained in their Bill of Rights an example is the 2 nd amendment which recognises the right to bear arms. These rights are entrenched in the constitution and can only be removed or changed through the process set out in the Constitution (2/3 of Congress and ¾ of the states must support the change). The US also has implied rights which are interpreted by the Supreme Court. For example, the implied right to privacy. The Supreme Court can also declare legislation to be constitutionally valid or invalid. The US Constitution also protects rights through structural protections. They have the principle of representative government and the separation of powers between the legislative, executive and the judicial branches. This mechanism indirectly ensures that there is no misuse or abuse of power by ensuring that each arm provides checks and balances on the other.

Outline the approach to the constitutional protection of rights in the United States of America (5 marks) The US has a Bill of Rights. It has 10 express rights listed within this Bill of Rights and since then it has had 16 more added on. The only way to change these express rights is by a referendum which is a much more complex procedure than in Australia. Similarly to Australia the US has the principles of representative government and the separation of powers. However unlike Australia the separation of powers principle is strictly adhered to and there is no overlap. Also the US does not have responsible government. This is because the president and congress and completely separate and therefore the president is not answerable to congress for his/her actions or decisions.

Response 1Response 2 The United States of America has an approach the constitutional protection of rights that is very similar to ours. The US has express rights contained in their Bill of Rights an example is the 2 nd amendment which recognises the right to bear arms. These rights are entrenched in the constitution and can only be removed or changed through the process set out in the Constitution (2/3 of Congress and ¾ of the states must support the change). The US also has implied rights which are interpreted by the Supreme Court. For example, the implied right to privacy. The Supreme Court can also declare legislation to be constitutionally valid or invalid. The US Constitution also protects rights through structural protections. They have the principle of representative government and the separation of powers between the legislative, executive and the judicial branches. This mechanism indirectly ensures that there is no misuse or abuse of power by ensuring that each arm provides checks and balances on the other. The US has a Bill of Rights. It has 10 express rights listed within this Bill of Rights and since then it has had 16 more added on. The only way to change these express rights is by a referendum which is a much more complex procedure than in Australia. Similarly to Australia the US has the principles of representative government and the separation of powers. However unlike Australia the separation of powers principle is strictly adhered to and there is no overlap. Also the US does not have responsible government. This is because the president and congress and completely separate and therefore the president is not answerable to congress for his/her actions or decisions.