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The Commonwealth Constitution protects Australians through express rights - VCE - SSCE Legal Studies - Question 9 - 2017 - Paper 1
Question 9
The Commonwealth Constitution protects Australians through express rights. Evaluate the extent of this protection.
Worked Solution & Example Answer:The Commonwealth Constitution protects Australians through express rights - VCE - SSCE Legal Studies - Question 9 - 2017 - Paper 1
Step 1
Identify the express rights in the Constitution
Answer
The Australian Constitution enshrines five specific express rights that ensure particular protections for individuals. These rights are:
- Freedom of religion (s116): This clause prevents the Commonwealth from establishing a religion or imposing religious observance.
- Free interstate trade and commerce (s92): This allows for the free movement of goods and services across state lines, promoting economic freedom.
- Freedom from discrimination based on state (s117): This protects individuals from being discriminated against by their state based on their residency in another state.
- ‘Just terms’ when property is acquired by the Commonwealth (s51(xxx)): This ensures that when the Commonwealth expropriates property, it must provide just compensation.
- Trial by jury for indictable Commonwealth offenses (s80): This guarantees the right to a jury trial in serious criminal matters.
Step 2
Evaluate the strengths of these express rights
Answer
The express rights have certain strengths:
- Explicit Protection: The rights are explicitly detailed within the Constitution, offering clear guidance on individual protections.
- Judicial Enforceability: These rights are enforceable in court, making them accessible for individuals to seek redress if infringed upon.
- Limitation of Government Power: The express rights limit government actions, thus safeguarding individual liberties against arbitrary actions.
Step 3
Evaluate the weaknesses of these express rights
Answer
Despite the strengths, there are notable weaknesses:
- Limited Scope: The express rights are very limited in number and do not encompass a wide range of contemporary human rights issues, reducing their effectiveness in protecting citizens broadly.
- Specificity: Many rights are constrained by their own nature. For example, the right to trial by jury applies only to indictable offenses, creating potential gaps in protection for less serious crimes.
- Amendment Difficulty: Adding additional rights to the Constitution is a challenging process, limiting future expansions of rights protection.
- Inherent Limitations: The express rights can be limited by other laws if they do not infringe on the rights themselves, which can lead to ambiguities regarding protection.
Step 4
Conclude on the extent of protection
Answer
In conclusion, while the express rights in the Commonwealth Constitution provide necessary legal protections for Australians, their limited number and scope mean that they do not cover all aspects of human rights. The protections are strong in specific areas but may leave individuals vulnerable due to the absence of a broader, more comprehensive framework for rights protection. Therefore, ongoing evaluations and discussions about the need for additional rights or amendments to the Constitution are essential.