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'Rights in Australia are well protected by the Commonwealth Constitution, in part because of section 128 of the Constitution.' Discuss the extent to which you agree or disagree with the above statement - VCE - SSCE Legal Studies - Question 13 - 2012 - Paper 1
Question 13
'Rights in Australia are well protected by the Commonwealth Constitution, in part because of section 128 of the Constitution.' Discuss the extent to which you agree... show full transcript
Worked Solution & Example Answer:'Rights in Australia are well protected by the Commonwealth Constitution, in part because of section 128 of the Constitution.' Discuss the extent to which you agree or disagree with the above statement - VCE - SSCE Legal Studies - Question 13 - 2012 - Paper 1
Step 1
Discuss the extent to which you agree or disagree with the above statement.
Answer
In my opinion, while rights in Australia are indeed protected by the Commonwealth Constitution, this protection is not as robust as it may appear. The Constitution explicitly mentions only a limited set of rights, such as the right to a 'trial by jury' and the right to freedom of religion. However, many fundamental rights are derived from common law and not directly protected by the Constitution itself, which can lead to vulnerabilities in their enforcement.
For instance, section 128 of the Constitution makes it clear that any changes to the Constitution require a referendum, thus providing a layer of protection. However, the process can be cumbersome and politically challenging. This suggests that while rights are formally protected, practical protections often rely on political will and public support.
Step 2
Explain the significance of one High Court case that you have studied related to the constitutional protection of rights in Australia.
Answer
One significant case highlighting the constitutional protection of rights is the Australian Capital Television Pty Ltd v Commonwealth (1992). In this case, the High Court ruled that the implied freedom of political communication is necessary for the system of government established by the Constitution.
The decision underscored that while the Constitution does not expressly guarantee free speech, it provides an essential framework that allows for political discourse, making it a cornerstone for democratic engagement. The ruling emphasized the evolving interpretation of rights within the Constitution, illustrating that even implied rights hold significant weight in the protection of individual freedoms in Australia.