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The approaches adopted by the United Kingdom, the United States of America, Canada, New Zealand and South Africa are different from the approach used by Australia for the constitutional protection of democratic and human rights - VCE - SSCE Legal Studies - Question 8 - 2010 - Paper 1
Question 8
The approaches adopted by the United Kingdom, the United States of America, Canada, New Zealand and South Africa are different from the approach used by Australia fo... show full transcript
Worked Solution & Example Answer:The approaches adopted by the United Kingdom, the United States of America, Canada, New Zealand and South Africa are different from the approach used by Australia for the constitutional protection of democratic and human rights - VCE - SSCE Legal Studies - Question 8 - 2010 - Paper 1
Step 1
Explain how the Commonwealth Constitution protects democratic and human rights.
Answer
The Commonwealth Constitution of Australia provides certain protections for democratic and human rights, though it is often considered less comprehensive than those in other countries. The Constitution does not contain an explicit bill of rights, which establishes fundamental rights. Instead, protections emerge through implied rights as determined by the High Court interpretation. For example, the right to political communication has been implied by the High Court to safeguard the democratic process.
Moreover, there are specific constitutional provisions that restrict legislation infringing on these rights. The High Court can enforce these limitations by declaring legislation invalid if it is inconsistent with the Constitution.
Step 2
One way in which the approach adopted by Australia is different from New Zealand.
Answer
New Zealand's constitutional framework incorporates the Bill of Rights Act 1990 (BORA), which explicitly lists personal rights and freedoms. Unlike Australia, where the High Court interprets rights narrowly and decision-making is context-dependent, New Zealand's BORA provides a clear mechanism for individuals to challenge legislation that infringes on their rights.
In New Zealand, parliament is required to respect the BORA and must justify any legislation that could be seen as a violation. This contrasts sharply with Australia's approach, where there is no formal requirement for the legislature to consider human rights at the time of passing laws, leading to a more judicially focused interpretation rather than legislative responsibility.