Photo AI
'The Commonwealth Constitution is too rigid and this makes it an ineffective mechanism for protecting human and democratic rights.' **a - VCE - SSCE Legal Studies - Question 9 - 2009 - Paper 1
Question 9
'The Commonwealth Constitution is too rigid and this makes it an ineffective mechanism for protecting human and democratic rights.' **a. Evaluate the process of cha... show full transcript
Worked Solution & Example Answer:'The Commonwealth Constitution is too rigid and this makes it an ineffective mechanism for protecting human and democratic rights.' **a - VCE - SSCE Legal Studies - Question 9 - 2009 - Paper 1
Step 1
Evaluate the process of changing the Constitution as outlined in Section 128.
Answer
The process of changing the Constitution in Australia is outlined in Section 128. It involves a rigorous and complex procedure, ensuring that only valid and necessary changes are put forward for a referendum.
Overview of Section 128 Process:
-
Proposal Stage:
- Amendments can be proposed by the Parliament, but this requires a clear indication that the change is relevant and beneficial. This ensures that unqualified amendments are avoided.
-
Referendum Requirement:
- Once a proposal is made, it must be put to the electorate in a referendum, ensuring that changes receive genuine public support.
-
Majority Approval:
- For the change to be enacted, it must not only gain a simple majority across Australia but also a majority in a majority of states. This double majority provision ensures that changes are widely supported, reflecting the desires of the Australian populace.
Strengths of the Process:
- Prevention of Unqualified Changes: The requirement for a clear proposal helps maintain the integrity of the Constitution.
- Public Involvement: The compulsory referendum engages citizens directly in the decision-making process, promoting democratic values.
- Reflective of Community Views: The process compels Parliament to consider the community's views on significant issues.
Weaknesses of the Process:
- Cost and Complexity: The process can be costly and lengthy, making it difficult for necessary amendments to be implemented in a timely manner. For instance, the failed referendum in 1999, which cost around $67 million, highlights this issue.
- Potential for Distrust: Some members of the electorate may distrust political motives behind proposals, affecting their willingness to engage with the referendum process.
Step 2
Is the Commonwealth Constitution an 'ineffective mechanism for protecting human and democratic rights'? Justify your answer.
Answer
The Commonwealth Constitution presents a mixed evaluation regarding its effectiveness in protecting human and democratic rights.
Strengths:
- Explicit Rights Protections: While the Constitution only contains five express rights that can be removed only via constitutional amendments, it does provide a framework for certain liberties. These include the right to vote, protection against discrimination, and rights related to the acquisition of property.
- Judicial Review: The High Court plays a crucial role in interpreting rights and can invalidate legislation if it contradicts the Constitution. This offers a continuous mechanism for the protection of rights.
Weaknesses:
- Limited Scope of Rights: The express rights listed in the Constitution are limited and do not encompass a broader perspective of human rights. This restricts the capacity of individuals seeking to enforce their rights effectively.
- Dependence on Legislative Action: Many rights require more than constitutional provisions; they rely on legislative and common law protections. This means changes can occur without adequate checks, leading to potential infringements.
Conclusion:
While the Constitution does include mechanisms for safeguarding certain rights, its rigidity and the limited scope of express protections raise concerns about its overall effectiveness in protecting human and democratic rights. Thus, it could be perceived as less effective in some circumstances.