DP 9: THE SIGNIFICANCE OF ONE HIGH COURT CASE RELATING TO THE CONSTITUTIONAL PROTECTION OF RIGHTS IN AUSTRALIA DP 10: AUSTRALIA’S CONSTITUTIONAL APPROACH COMPARED TO CANADA. Unit 3 AoS 2 Revision

Using one example, explain how the Commonwealth Constitution protects rights in Australia. 6 marks.

Answer Structural protection – Roach v. Electoral Commissioner See handout. Significance: The decision of the court affirmed that there is a constitutional right to vote for adult members of the Australian community, which is protected by the structure of representative government (s7 and 24) in the Commonwealth Constitution. The High Court did not go so far to call the right an implied right, instead the right is a reflection of structural protection. Thus, representative government can act as a limit on the powers and sovereignty of the Commonwealth Parliament, which cannot legislate away the right to vote without good reason.

Interpretation vs. enforcement What is the difference between interpretation of Constitution and the enforcement of constitutional rights? The High Court can only interpret the Constitution where a case comes before it, and the case requires the court to give meaning to words or phrases in the Constitution in applying it to the case. If it is a right that is being interpreted, the effect can be to narrow or broaden the scope of the protected right. Eg: through High Court interpretation of Constitution that the implied right of political communication was found (Nationwide News Pty Ltd v. Wills and Australian Capital Television Pty Ltd). A case may come before the High Court that questions the validity of legislation in terms of possible infringements or restrictions of rights. Protected rights are fully enforceable by the High Court. This means that the High Court is about to declare invalid any section of legislation that violates protected rights, so it is no longer in effect. Eg: Roach. Such rulings cannot be overruled by parliament – they can only seek to change wording of Constitution by a referendum or amend the legislation and pass it without the offending sections.

Evaluate the extent to which the Commonwealth Constitution protects rights for Australians. 10 marks.

Answer StrengthsWeaknesses *Express rights are entrenched in the Constitution, so that they an only be changed by a successful referendum; for this to be achieved there must be widespread support in the community. * The High Court has the ability to find implied rights through interpretation. New rights can be added to the Constitution through a successful referendum. A combination of protection mechanisms, including structural protection, express rights and implied rights prevents the abuse of power by the Commonwealth Parliament. The Constitution protects only a limited number of rights, with the legal system relying heavily on legislation and common law (judge made law) to protect rights. The wording of the Constitution, and hence any express rights, are difficult to change due to referendum procedure. The High Court must wait for a case to be brought to it with a relevant issue before it is able to make a declaration of invalidity. This can be costly and lengthy complaints based procedure for the parties involved. Most rights provisions apply only to the Commonwealth Parliament, and do not limit the actions of the state parliament.

Answer StrengthsWeaknesses *S128 means that it is hard to remove rights that are protected under the Constitution. *Very few rights are protected under the constitution The rights protected are limited in scope. Eg: trial by jury. The needs of minority groups may not be heard by the government and may not be catered for without a bill of rights.

Question Compare the approach adopted for the Constitutional protection of rights in Australia with the approach taken in Canada. 8 marks.

Answer See handout.

Question The approaches taken by the United Kingdom, Canada, The United States of America and South Africa are different from the approach taken by Australia for the Constitutional protection of democratic rights. Explain how the Commonwealth Constitution protects human and democratic rights. In your answer explain one way in which the approach taken by Australia is different from the approach adopted by one of the countries listed in the above statement. 6 marks.

Answer Canada’s rights are comprehensive and contained in the Charter of Rights, which was adopted in 1982.Australia does not have a constitutionally protected Bill of Rights and its Constitution does not contain a comprehensive list of protected rights. Certain rights can never be overridden by parliament (for example, the right to vote). However, some rights can be overridden – parliament can respond to a Supreme Court declaration of invalidity by passing legislation again and indicating that it is to override the Charter. This legislation has a five-year sunset clause, and will therefore lapse at the end of five years unless the parliament passes it again, indicating that it is to override the Charter. Australia does not have a similar procedure to allow parliament to override a High Court declaration of invalidity. The Supreme Court can give an opinion on whether proposed legislation will infringe the Charter (the Supreme Court did this recently in regard to a Bill to legalise gay marriage). This, and the ability of the parliament to override certain rights, assists in developing a ‘dialogue’ between the legislature and the judiciary on rights. In Australia, the High Court cannot give advisory opinions. It can only express a view as part of a judgment that is given to resolve a case argued before it by parties in dispute.

Can you… Explain the impact of a case on the constitutional protection of rights in Australia? Explain how the High Court interprets and enforced constitutional protection of rights in Australia? Evaluate the approach used to protect constitutional rights in Australia? Explain the approach adopted by Canada to protect democratic and human rights? Compare Canada’s approach to Australia’s approach?

Rights can be limited where it is ‘necessary in a free and democratic society’. Australia does not have a Bill of Rights containing such a provision. Courts can interpret the legislation narrowly to bring its operation within the boundaries set by the Charter. Australia does not have a Bill of Rights endorsing this approach, and this approach has not yet been evident in High Court decisions relating to the expressly protected rights. Courts can make another appropriate remedy, such as an award of damages – Section 24(1). In Australia, the High Court’s power is restricted to declaring legislation invalid where it contravenes one of the rights.