UNIT 3: AOS 2 The three main ways (means) in which the Australian Constitution protects human rights

1. Structural protection Structural protection is the systems and mechanisms in the Commonwealth Constitution that indirectly protect human rights by preventing the abuse of power.

How does the structure of the Comm Constitution protect human rights? Structural protection reflects the fact that there are checks and balances built into the Constitution which prevent power being abused and therefore protect human rights.

How does the structure of the Comm Constitution protect human rights? The Constitution offers structural protection of rights in that there must be a responsible government answerable and accountable to the lower house, there must be a representative government that can be voted out of office if it does not listen to the wishes of the people and the separation of powers provides an independent High Court that is the final arbiter on government actions and the abuse of power.

An example of structural protection is These structures include the principle of the separation of powers, and the requirement that Members of Parliament must be directly chosen by the people as set out in sections 7 and 24 of the Commonwealth Constitution (the principle of representative government) and responsible government (S……) An example of structural protection is the recognition of the limited right to vote in Roach v. Electoral Commissioner (2007).

2. Express rights Express rights are rights that are explicitly stated in the Constitution and can only be changed or removed by the process of a referendum. For example the right to freedom of religion, which restricts the parliaments from prohibiting the free exercise of religion (S116) and the right to a trial by jury for indictable Commonwealth offences (S 80).

How do express rights protect human rights? As express rights can only be changed or removed from the Constitution, which ensures the protection of those rights.

3. Implied rights Implied rights are not written in the Constitution but have been found, through High Court interpretation, to be inferred by the wording of the Constitution. An example of an implied right is the right to freedom of political communication, which protects the rights of people to express opinions on parliamentary or political affairs as established in Australian Capital Television v. The Commonwealth (1992) and Nationwide News Pty Ltd v. Wills (1992).

What you need to be able to do… Explain the three ways that the Commonwealth Constitution protects rights Use examples that are appropriate for the means that you are describing. For example: Way/m eans Key wordsExampleCase Structural protection Mechanisms and systems Representative government Roach v. Electoral Commissioner (2007). Express rights Explicitly stated in Comm Constitution Right to freedom of religion (S116) Attorney General (Vic); Ex Rel Black V. Commonwealth (1981) Implied rights Not written in Constitution by inferred through HC interpretation Right to freedom of political interpretation Australian Capital Television v. The Commonwealth (1992) and Nationwide News Pty Ltd v. Wills (1992).

You also need to be able to evaluate the strengths and weaknesses of the Commonwealth Constitution as a means of protecting rights Learn table on page 148 of Justice and Outcomes